Walker et al v. Maryland et al
MEMORANDUM AND ORDER GRANTING 73 Motion to Adopt Motions Filed by Plaintiffs; GRANTING 24 Motion to Intervene. Signed by Judge Marvin J. Garbis on 6/22/2017. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
VERONICA WALKER, Individually and*
As Personal Representative for
the Estate of Jason Wallace,
deceased, et al.
CIVIL ACTION NO. MJG-16-3136
STATE OF MARYLAND, et al.
MEMORANDUM AND ORDER RE: INTERVENTION
The Court has before it the Motion of Plaintiffs to
Intervene [ECF No. 24] and the materials submitted relating
thereto. The Court finds that a hearing is unnecessary.
On September 3, 2013, Jason Wallace (“Jason”) was a
prisoner incarcerated at the Maryland Western Correctional
Institution located in Cumberland, Maryland.
On that date,
Jason was killed by his cellmate, one Darnell Thompson.
On September 12, 2016, Plaintiffs Veronica Walker,
Individually and as Personal Representative of the Estate of
Jason Walker, and Gilbert Walker, to the use of Jason’s minor
children, K.W. and V.W. (collectively referred to as “the
Children”), filed the Complaint [ECF No.1].
In the Complaint,
Plaintiffs alleged that the Defendants, the State of Maryland
and three individual defendants, should be held liable for the
death of Jason.
The Complaint presents (1) a survival action
whereby the Estate asserts such claims as Jason may have been
able to assert had he survived and (2) a wrongful death action
whereby each Plaintiff asserts his/her own claim for loss caused
to them by virtue of the death of Jason.
On December 19, 2016, the Children filed the instant
Motion, seeking to intervene in this case as plaintiffs pursuant
to Rule 24 of the Federal Rules of Civil Procedure. In the
Motion, June Stephanie Woerner seeks to intervene as the
Children’s next friend “to represent their claims and legal
interests, which are spelled out in the Complaint. (ECF Nos. 1 &
3).” Mot. of Pl.’s to Intervene [ECF No. 24] at 2.
Federal Rule of Civil Procedure 24 allows for intervention of
right or permissive intervention.
A. Intervention of Right
To intervene as a matter of right the movant must demonstrate:
The application to intervene was timely;
An interest in the subject matter of the action;
That the protection of this interest would be impaired
because of the action; and
represented by existing parties to the litigation.
Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th Cir.
As explained below, the Children meet all of the factors to
intervene as a matter of right.
1. Timeliness Of Motion To Intervene
Maryland Rule 15-1001 provides that a “use plaintiff” who
wishes to join a wrongful death action must file a motion to
intervene by the earlier of the (1) the applicable statutory
deadline or (2) 30 days after being served with the complaint
and notice of this action.
a. Compliance with the Statute of Limitations
The statute of limitations for wrongful death is three years
after the time of death. Md. Code Ann., Cts. & Jud. Proc.
(“CJP”) § 3-904(g)(1).1
The Defendants argue that this action is
barred because Jason died on September 13, 2013, and the
Children did not file the Motion to Intervene until December 19,
However, CJP § 5-201, the Persons with Disabilities Statute,
An “action under this subtitle shall be filed within three
years after the death of the injured person.” Md. Code Ann.,
Cts. & Jud. Proc. § 3-904(g)(1)(2013 Repl. Vol.).
provides that when a cause of action subject to limitation under
the wrongful death statute “accrues in favor of a minor or
mental incompetent, that person shall file his action within the
lesser of three years or the applicable period of limitations
after the date the disability is removed.” Md. Code Ann., Cts. &
Jud. Proc. § 5-201.
On May 22, 2017, the Maryland Court of Appeals held that
the plain language of “Cts. & Jud. Proc. § 5-201 in its current
form provides for tolling of a wrongful death claim during a
period of minority. . . .” Parker v. Hamilton, No. 78, 2017 WL
2226686, at *6 (Md. May 22, 2017). Consequently, the statute of
limitations applicable to the Children has not yet begun to run,
and their Motion to Intervene is therefore timely.2
b. Compliance with Served Notice Deadline in Md. Rule
A “use plaintiff” must file a motion to intervene thirty
days after being served with the complaint and notice of this
action. The notice of this suit was mailed to the Children on
November 16, 2016 [ECF No. 60-9], and the Children filed their
Motion on December 19, 2016, within the notice deadline.3
It is not necessary to discuss the merits of the Children’s
argument regarding the criminal homicide exception as this
motion was timely filed in accordance with the tolling period
Rule 6(d) adds three days to the prescribed period when
service is made by mail.
2. Legally Protected Interest and Impaired Ability to
The Children have a legally protected interest in this
action as legal beneficiaries under CJP § 3-904.
law they could be entitled to damages in a wrongful death action
for the death of their father, even if they do not have a legal
interest in the Estate’s survivor action.
If not allowed to intervene as Plaintiffs, the Children’s
ability to protect their interest in the litigation will be
While they would not be a true party to the action,
they would be bound by the determinations therein because of the
one-action provision in the wrongful death statute.4 Univ. of Md.
Med. Sys. Corp. v. Muti, 44 A.3d 380, 393 (Md. 2012).
keeping the Children “as use” Plaintiffs is insufficient to
protect their interests. See Carter v. Wallace & Gale Asbestos
Settlement Trust, 96 A.3d 147, 169 (Md. 2014)(explaining that
“use plaintiffs” are different from party plaintiffs because
they cannot recover for damages in their own names).
B. Permissive Intervention
Even if the Court is not required to allow the Children to
intervene as a matter of right, this Court would still allow
Md. Code, Cts. & Jud. Proc. § 3-904(f) (2013 Repl. Vol.)
states that only one action under this subtitle lies in respect
to the death of a person.
permissive intervention. Rule 24(b) provides, in pertinent part:
(1) On timely motion, the court may permit anyone to
* * *
(B) has a claim or defense that shares with the main
action a common question of law or fact.
In considering permissive intervention, the Court must
ask “whether the intervention will unduly delay or prejudice the
adjudication of the original parties’ rights.” Stuart v. Huff,
706 F.3d 345, 349 (4th Cir. 2013).
At the time of filing the instant Motion, the Defendants
had yet to answer the Complaint and intervention would not
unduly delay the case.
The Children have a legal interest in
the wrongful death claim, which shares with the main action
common questions of law and fact relating to Jason’s death.
Accordingly, the Court shall exercise its discretion to grant
the Motion to Intervene.
For the foregoing reasons:
1. Plaintiffs’ Motion to Intervene [ECF No. 24] is GRANTED.
2. Minor Plaintiffs’ Motion to Adopt Motions Filed by
Plaintiff Veronica Walker and Gilbert Wallace [ECF No.
74] is GRANTED.
SO ORDERED, on Thursday, June 22, 2017.
Marvin J. Garbis
United States District Judge
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