BellSouth Telecommunications L L C v. New Orleans Teleport Inc

Filing 43

ORDER granting #23 Motion to Intervene; granting #24 Motion for Leave to File Amended Counterclaim; granting #24 Motion for Extension. IT IS ORDERED that the Motion To Intervene pursuant to Federal Rule of Civil Procedure 24(a), and alternatively Rule 24(b), filed by Movants, Barbara Lamont and Ludwig Gelobter, #23 is GRANTED. IT IS ORDERED that the Motion To Extend Discovery Deadlines and For Leave To File Amended Counterclaim filed by New Orleans Teleport, Inc. d/b/a CallsPlus #24 is GRANTED. IT IS FURTHER ORDERED that the Scheduling Order #10 is VACATED. The Court will issue a separate Order setting a telephone status conference to select a new trial, at which time a new Scheduling Order will issue. Signed by Magistrate Judge Carol B Whitehurst on 10/30/2017. (crt,Keller, J)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
BellSouth Telecommunication LLC

Civil Action No. 6:16-cv-001624

versus

Unassigned District Judge

New Orleans Teleport Inc

Magistrate Judge Carol B. Whitehurst
ORDER

Before the Court is a Motion To Intervene pursuant to Federal Rule of Civil
Procedure 24(a), and alternatively Rule 24(b), filed by Barbara Lamont and Ludwig
Gelobter (“Proposed Intervenors”) [Rec. Doc. 23], a Memorandum in Opposition filed
by BellSouth Telecommunications, LLC (“BellSouth”) [Rec. Doc. 29] and Proposed
Intervenors’ Reply thereto [Rec. Doc. 35]; as well as a Motion To Extend Discovery
Deadlines And For Leave To File Amended Counterclaim filed by New Orleans
Teleport, Inc. d/b/a CallsPlus (“CallsPlus”), [Rec. Doc. 24], a Memorandum in
Opposition filed by BellSouth Telecommunications, LLC [Rec. Doc. 28] and
CallsPlus’ Reply thereto [Rec. Doc. 36].
I. Background
The record of this case provides that on November 22, 2016, BellSouth
Telecommunications, LLC filed suit against CallsPlus. R.1. CallsPlus answered the
complaint and filed a counterclaim against Bellsouth on March 7, 2017. R. 9. On March
10, 2017, the Court issued a Scheduling Order which set the deadline for Joinder of

Parties and Amendment of Pleadings on April 4, 2017, and the deadline for Discovery
on August 8, 2017. R. 10. In the Rule 26(f) Report, filed on May 22, 2017, the parties
agreed to extend the discovery deadline to August 20, 2017, and all depositions would
be completed by December 1, 2017. R. 20, p. 5. On August 16, 2017, the Court granted
a motion filed by CallsPlus, R. 21,to withdraw their original counsel and substitute
current counsel of record. R. 22. On that same date, Proposed Intervenors filed this
Motion to Intervene, R. 23, and CallsPlus filed a Motion for Leave to File Amended
Complaint and Extend Discovery, R. 24. The Court will address the Motion to
Intervene first.
II. Law and Analysis
Proposed Intervenors are the principal owners and chief managers of CallsPlus
who contend “have suffered damages in their personal capacity caused by the
unjust, unfair, and unlawful charges and practices of BellSouth.” R. 23. They
allege that 47 U.S.C. § 207 of the Communications Act of 1934, 47 U.S.C. § 201, et
seq, gives them “the unconditional right” to intervene in this action under Rule
24(a)(1).1 Alternatively, they maintain they should be allowed to intervene pursuant
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Under 47 U.S.C. § 201(b), a private right of action exists for damages for “any ‘practice’ in
connection with providing communications services ‘that is unjust or unreasonable.’” CenturyTel of
Chatham, LLC v. Sprint Communications Company, L.P., 861 F.3d 566, 571–72 (5th Cir. 2017) quoting
47 U.S.C. § 201(b). Section 207 provides that “[a]ny person claiming to be damaged by any common
carrier ... may bring suit for the recovery of damages for which such common carrier may be liable under
the provisions of this chapter.” Id. quoting 47 U.S.C. § 207.

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to Rule 24(b) because their claims share common questions of law and fact with
BellSouth’s Complaint and CallsPlus’ Counterclaim. BellSouth opposes intervention
under both 24(a) and (b).
Federal Rule of Civil Procedure 24 allows persons not already parties to
intervene in an existing case. See Fed. R. Civ. P. 24. Interventions may be either “of
right” under Rule 24(a) or “permissive” under Rule 24(b). The Federal Rules of Civil
Procedure specify two situations in which a person is permitted to intervene as of right:
first, when a federal statute grants an unconditional right to intervene, Fed. R. Civ. P.
24(a)(1); and second, when a person claims an interest relating to the property or
transaction that is the subject of the action, and is so situated that disposing of the
action may as a practical matter impair or impede the movant's ability to protect its
interest, unless existing parties adequately represent that interest, Fed. R. Civ. P.
24(a)(2). Sommers v. Bank of America, N.A., 835 F.3d 509, 512 (5th Cir. 2016). As
noted above, Proposed Intervenors contend their right to intervene under Rule 24(a)(1)
flows from 42 U.S.C. § 207 of the Communications Act.
A. Intervention Of Right
In their Motion, Proposed Intervenors provide no support—either statutory
language or jurisprudence—for their allegation that 47 U.S.C. § 207 gives them “the
right to intervene.” In its Opposition, BellSouth argues that the Communications Act
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does not include any language related to a right to intervene. R. 29. While it provides
no jurisprudential support for this position (presumably because it could locate none),
BellSouth argues that even statutes that do confer an absolute right to intervene are
rarely given an unconditional statutory right to intervene under Fifth Circuit law.2 The
Court as also failed to locate any jurisprudence, Fifth Circuit or otherwise, in which a
Rule 24(a) intervention was permitted under § 207, or any section of the
Communications Act. Proposed Intervenors cannot prove intervention of right.
B. Permissive Intervention
The Court finds that as Proposed Intervenors have failed to demonstrate an
“unconditional right” under a federal statute to intervene on the basis of Rule 24(a)(1),
it must turn to the alternative argument for permissive intervention under Rule 24(b).
While Proposed Intervenors do not specify a section under Rule 24(b), the Court finds
that Section (b)(1)(B) applies in this case.3 Rule 24(b)(1)(B) provides that on “timely
motion”, the Court may permit anyone to intervene who “has a claim or defense that
shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b).
A court possesses the discretion to determine whether to permit permissive intervention

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R. 29, pp. 2-3, citing Fuel Oil Supply and Terminating v. Gulf Oil Corp., 762 F.2d 1283, 1286
(5th Cir. 1985).
3

Section (b)(1)(A) requires “a conditional right to intervene by a federal statute” and Section
(b)(2) applies to permissive intervention by “a Government Officer or Agency.” FRCP 24.

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and must “consider whether the intervention will unduly delay or prejudice the
adjudication of the original parties' rights.” Id. at (b)(3).
Movants wish to join with the current plaintiff, CallsPlus, in asserting their own
personal claims as sole shareholders and officers of CallsPlus which are in common
with the current claims against BellSouth. BellSouth objects to the intervention as
untimely and prejudicial to BellSouth.4 Permissive intervention is, however, “wholly
discretionary” with the district court even when there is a common question of law or
fact, or the requirements of Rule 24(b) are otherwise satisfied. Kneeland v. National
Collegiate Athletic Ass'n, 806 F.2d 1285, 1289 (5th Cir. 1987). Considerations include
whether the intervenors’ interests are adequately represented by other parties and
whether intervention will unduly delay the proceedings or prejudice existing parties.
Id.
To determine whether a motion to intervene is timely, courts must consider the
totality of the circumstances. U.S. v. Covington County School Dist., 499 F.3d 464, 465
(5th Cir. 2007). In Stallworth v. Monsanto Co., the Fifth Circuit stated four factors to
consider in determining whether a motion to intervene is timely: (1) how long the
potential intervenors knew or reasonably should have known of their stake in the case

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The Court has previously determined that diversity jurisdiction exists between BellSouth and
CallsPlus. Proposed Intervenors will not upset the Court’s jurisdiction.

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into which they seek to intervene5; (2) the prejudice, if any, the existing parties may
suffer because the potential intervenors failed to intervene when they knew or
reasonably should have known of their stake in that case; (3) the prejudice, if any, the
potential intervenors may suffer if the court does not let them intervene; and (4) any
unusual circumstances that weigh in favor of or against a finding of timeliness. 558
F.2d 257, 264–66 (5th Cir.1977); Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir.
1994). “These factors are not a formula for determining timeliness; instead, it should
be determined based on all the circumstances.” Effjohn Int'l Cruise Holdings, Inc. v.
A&L Sales, Inc., 346 F.3d 552, 561 (5th Cir. 2003). The requirement of timeliness is
not a tool of retribution to punish the tardy would-be intervenor, but rather a guard
against prejudicing the original parties by the failure to apply sooner. McDonald v. E.J.
Lavino Co., 430 F.2d 1065, 1074 (5th Cir.1970). Federal courts should allow
intervention “where no one would be hurt and greater justice could be attained.” Id.
BellSouth first asserts that Proposed Intervenors’ Complaint is untimely because
it was filed nine months after BellSouth’s Complaint was filed and after the deadline
to amend pleadings. Proposed Intervenors argue that because they were not parties to
this action, the Scheduling Order does not apply to them. They further argue that they

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As opposed to when a would-be intervenor became aware of the pendency of the case, which is
not relevant to the timeliness inquiry. 558 F.2d at 265.

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filed their Proposed Complaint within the two (2) year statute of limitations under the
Communications Act. Proposed Intervenors maintain that they promptly moved for
intervention once their interest in the case became known to them. Citing the fourth
factor, unusual circumstances, Movants represent that, contrary to BellSouth’s assertion
that they have been aware of this litigation and their private causes of action since its
inception, they did not have “actual knowledge of their standing to assert claims under
the Communications Act until the change of counsel.” R. 35, p. 6. As corroborated by
the record, the instant motion was filed on the same day, by the same attorney that the
Court allowed to substitute into this case as counsel of record for CallsPlus. The Court
finds Movants first knew of their personal causes of action in this case when they
retained their present counsel.
As to the second factor, BellSouth contends it will suffer extreme prejudice in
the event intervention is permitted because BellSouth will be required to engage in
extensive discovery which will in turn cause the delay of trial in this matter. BellSouth
argues that Movants are already represented by their company in this lawsuit and
Movants’ personal claims for “mental anguish” and “severe stress” are not allowed
under the Communications Act. Proposed Intervenors argue that BellSouth cites no
applicable jurisprudence for its contention that such damages are not available under
the Communications Act. Instead, they cite Section 206 of the Communications Act
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which makes common carriers such as BellSouth “liable to the person or persons
injured thereby for the full amount of damages sustained in consequence of any such
violation of the provisions of this chapter.” Proposed Intervenors also cite
jurisprudence involving similar statutes, i.e. FCRA and ECOA, in which the Fifth
Circuit has held damages for mental anguish is available. They assert that BellSouth’s
arguments are premature, and should be raised once they are part of this case by a
motion pursuant to Rule 12(b)(6).
Finally, as to the final factors, Proposed Intervenors contend they will suffer
substantial prejudice if not allowed to intervene. Because the claims at issue are strictly
personal, they have no intersection with the corporation or the corporation’s property,
and the two year statute of limitations under the Communications Act will have run
before this Motion could be finally adjudicated—they “would lose their rights to
recover for BellSouth’s unlawful conduct.” R. 35. They assert that unusual
circumstances in this case include not only that they were not aware of their personal
cause of action until they retained present counsel, but also the fact that a continuance
in this case is likely to occur “no matter what” because the presiding district judge has
now retired. This Court agrees it is virtually certain that the current trial date will be

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continued due to the lack of judicial resources in this Division and this District.6 There
is no date certain as to when a district judge will take the bench in this Division.
Rule 24 is to be liberally construed. Wal-Mart Stores, Inc. v. Tex. Alcoholic
Beverage Comm'n, 2016 WL 4435631, at *1 (5th Cir. Aug. 22, 2016). See also
Entergy Gulf States La, L.L.C. v. U.S. E.P.A., 817 F.3d 198, 203 (5th Cir. 2016) (“The
rule ‘is to be liberally construed,’ with ‘doubts resolved in favor of the proposed
intervenor.’ ”). “District Courts are given broad discretion in granting motions to
intervene under Rule 24(b)(2).” League of United Latin American Citizens, Council
No. 4434 v. Clements, 884 F.2d 185, 189 (5th Cir. 1989). Based on the foregoing, the
Court finds that Proposed Intervenors’ personal causes of action are not represented by
CallsPlus, their intervention is not untimely and BellSouth will not be prejudiced in the
event intervention is permitted.
Accordingly,
IT IS ORDERED that the Motion To Intervene pursuant to Federal Rule of
Civil Procedure 24(a), and alternatively Rule 24(b), filed by Movants, Barbara Lamont
and Ludwig Gelobter, [Rec. Doc. 23] is GRANTED.
IT IS ORDERED that the Motion To Extend Discovery Deadlines And For

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Currently there are no district judges in this Division. As of October 31, 2017, there will be
only 2 active district judges with 5 vacate seats in the District.

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Leave To File Amended Counterclaim filed by New Orleans Teleport, Inc. d/b/a
CallsPlus [Rec. Doc. 24] is GRANTED.
IT IS FURTHER ORDERED that the Scheduling Order [Rec. Doc. 10] is
VACATED. The Court will issue a separate Order setting a telephone status
conference to select a new trial, at which time a new Scheduling Order will issue.
THUS DONE AND SIGNED this 30th day of October, 2017.

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