Great American Life Insurance Company v. Tanner et al
ORDER denying 43 Motion to Intervene. Signed by District Judge Debra M. Brown on 8/18/17. (jtm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREAT AMERICAN LIFE
AVA MITCHELL TANNER,
ALITA MARGARET MITCHELL, and
Before the Court is Phyllis Mitchell Fernandez’s1 “Motion to Intervene.” Doc. #43.
Relevant Procedural History
On April 5, 2016, Great American Life Insurance Company filed an interpleader
complaint in this Court pursuant to Rule 22 of the Federal Rules of Civil Procedure to determine
whether Ava Mitchell Tanner, Alita Margaret Mitchell, Craig J. Cheatham, or anyone else, is the
proper recipient of two annuities issued to Don Mitchell before his death. Doc. #1. On May 27,
2016, Alita2 and Craig filed an answer to the complaint and Alita filed a crossclaim against Ava.
Doc. #9. In her crossclaim, Alita alleges that “[w]ithout a legal basis or right, Ava Mitchell
Tanner has interfered with Alita Margaret Mitchell’s right to annuity death benefits by
submitting a false and scandalous letter to [Great American]” and “[a]s a result of her malicious
interference,” Ava “is liable for the damage Alita Margaret Mitchell has incurred ….” Id. at ¶¶
On June 9, 2016, Ava answered Great American’s complaint and Alita’s crossclaim.
The motion refers to the movant as “Phyllis Mitchell Fernandez;” however, the reply in support of the motion
refers to the movant as “Phyllis Mitchell Hernandez.”
To avoid confusion, the first names of the parties are used.
Doc. #13; Doc. #14. On June 30, 2016, Ava filed an amended answer to Alita’s crossclaim and
asserted crossclaims of her own against Alita and Craig. Doc. #24. Ava’s crossclaims allege, in
Alita Cheatham and Craig Cheatham exerted undue influence over Don Mitchell
to persuade him to disinherit his daughters, the natural objects of his bounty, and
to convey his assets to them. They used undue influence to covert the following
Regions Bank CD $150,000,
Prudential Life Insurance policy for $186,000,
Great American Life Insurance annuities for $120,153.25 and $117,333.54,
Oil Interest of unknown value.
Id. at ¶ 41.
On August 30, 2016, Phyllis Mitchell Fernandez filed a motion seeking “leave to
intervene as a plaintiff in the cross claim filed by her sister [Ava] against the current defendants
to the cross claim, Alita Cheatham Mitchell and Craig Cheatham.” Doc. #43. Phyllis asserts that
she “was a beneficiary of the trust which owned some oil interest;” that at “[o]ne time, she was a
beneficiary of the policies with Prudential and Great American;” and that “[c]omplete relief in
this case cannot be granted unless [she] is allowed to intervene as a party plaintiff to this action.”
Id. at 1. On September 8, 2016, Alita and Craig filed a response to the motion to intervene and
then a “Corrected Response to Motion to Intervene.” Doc. #47; Doc. #48. On September 19,
2016, Phyllis filed a reply. Doc. #52.
A. Memorandum Brief Requirement
Uniform Local Rule 7(b)(4) provides in relevant part:
At the time the motion is served, other than motions or applications that may be
heard ex parte or those involving necessitous or urgent matters, counsel for
movant must file a memorandum brief in support of the motion. Counsel for
respondent must … file a response and memorandum brief in support of the
response …. Failure to timely submit the required motion documents may result
in the denial of the motion.
Here, Phyllis did not submit a memorandum brief in accordance with Local Rule 7(b)(4).
Accordingly, the motion to intervene will be denied without prejudice to refiling by Phyllis.
Such motion, and any response3 and reply, must comply with the local rules of this Court,
including Local Rule 7(b)(4).
B. Federal Rule of Civil Procedure 24
Although denying the motion to intervene without prejudice, the Court will briefly
discuss the requirements for intervention to focus any future submissions by the parties on the
Intervention is governed by Rule 24 of the Federal Rules of Civil Procedure. Rule 24
provides, in relevant part:
(a) Intervention of Right. On timely motion, the court must permit anyone to
(1) is given an unconditional right to intervene by a federal statute; or
(2) 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.
(b) Permissive Intervention.
(1) In General. On timely motion, the court may permit anyone to intervene
(A) is given a conditional right to intervene by a federal statute; or
(B) has a claim or defense that shares with the main action a common
question of law or fact.
In their response opposing the motion to intervene, Alita and Craig request for themselves “that the briefing
requirement contained in Rule 7(b)(4), Mississippi Rules of the Court, be waived as this matter is straightforward,”
pointing out that Phyllis “did not site [sic] authority or provide proof in support of her motion.” Doc. #48 at 4. Alita
and Craig are correct that Phyllis does not cite any authority in her motion or provide any evidence in support of her
request to intervene. However, because this matter is not straightforward, as discussed below, the Court disagrees
that the memorandum brief requirement should be waived for any party.
Thus, a nonparty seeking to intervene and obtain the rights and privileges of a party to a lawsuit
has available two avenues: (1) intervention of right pursuant to Rule 24(a) and (2) permissive
intervention pursuant to Rule 24(b).
Phyllis does not reference Rule 24 at all in her motion to intervene or in her reply, nor
does she specify whether she seeks to intervene as of right or on a permissive basis. However,
her motion appears to seek intervention of right under Rule 24(a)(2), as she contends she has an
interest in the annuities, along with the other assets listed in Ava’s crossclaim, and that complete
relief cannot be granted unless she is allowed to intervene.
To be entitled to intervention as of right under Rule 24(a), a movant must meet four
(1) the application for intervention must be timely; (2) the applicant must have an
interest relating to the property or transaction which is the subject of the action;
(3) the applicant must be so situated that the disposition of the action may, as a
practical matter, impair his ability to protect that interest; and (4) the applicant’s
interest must be inadequately represented by the existing parties to the suit.
Sommers v. Bank of Am., N.A., 835 F.3d 509, 512 (5th Cir. 2016). “Failure to satisfy any one
requirement precludes intervention of right.” Edwards v. City of Hous., 78 F.3d 983, 999 (5th
In seeking intervention, “the movant bears the burden of establishing its right to intervene
….” Brumfield v. Dodd, 749 F.3d 339, 341 (5th Cir. 2014). Generally, when deciding a motion
to intervene, a court accepts as true a movant’s factual allegations.4 Texas v. United States, 805
F.3d 653, 657 (5th Cir. 2015). However, a court need not accept conclusory allegations as true.
See Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 819 (9th Cir. 2001) (“[A] district
“Although the movant bears the burden of establishing its right to intervene, Rule 24 is to be liberally construed.”
Brumfield, 749 F.3d at 341–42. The Fifth Circuit has stated that “the inquiry under subsection (a)(2) is a flexible
one, which focuses on the particular facts and circumstances surrounding each application and intervention of right
must be measured by a practical rather than technical yardstick.” Edwards, 78 F.3d at 999 (internal alterations
court is required to accept as true the non-conclusory allegations made in support of an
intervention motion.”); Lake Inv’rs Dev. Grp. v. Egidi Dev. Grp., 715 F.2d 1256, 1258 (7th Cir.
1983); Costa v. Marotta, Gund, Budd &Dzera, LLC, 281 F. App’x 5, 9 (1st Cir. 2008).
Alita and Craig’s opposition to the motion to intervene focuses primarily on the
requirement that the applicant have an interest relating to the property or transaction which is the
subject of the action. They argue that (1) Phyllis has never been a named beneficiary to the
annuities and, as such, is not a real party in interest; (2) the crossclaims challenging other
conveyances and change of beneficiaries of a trust to which Phyllis claims entitlement do “not
arise out of the transaction or occurrence that is the subject matter of this action;” (3) the Court
does not have jurisdiction to administer Don’s estate; and (4) the only issue before the Court is
whether Don lacked the capacity to execute the change of beneficiary form. Doc. #48 at 2–3.
Phyllis argues in her reply that (1) Alita and Craig “did not contend that the allegations
regarding the other investments were outside the scope of Rule 13(g) of the Federal Rules of
Civil Procedure” in answering the crossclaim; (2) the crossclaims for the other assets arise out of
the occurrence which is the subject matter of the original interpleader; and (3) the dispute over
the proper beneficiary is not within the exclusive jurisdiction of Mississippi’s chancery courts.
Doc. #52 at 2–3.
Putting aside the question of whether the assets other than the annuities arise out of the
same circumstances raised in the interpleader complaint and/or Ava’s crossclaims,5 Phyllis fails
to specify the factual and legal bases for her claimed interests.6 She further fails to address why
“A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the
transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates
to any property that is the subject matter of the original action.” Fed. R. Civ. P. 13(g).
Phyllis attached to her reply as an exhibit a “Declaration of Ava Tanner” made purportedly “[p]ursuant to the
provisions of 28 U.S.C. § 1746.” Doc. #52-1. Contrary to § 1746, the declaration is neither signed nor dated. See
the disposition of this matter would impair or impede her ability to protect such interests, why
such interests are inadequately represented by the existing parties to the suit, and the timeliness
of her motion. Under these circumstances, more is required to allow her intervention. See, e.g.,
Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994) (“If a party seeking to intervene fails to
meet any one of those requirements, it cannot intervene as a matter of right.”); E.E.O.C. v. Air
Exp. Int’l, USA, Inc., No. 3:11-cv-2581, 2011 WL 6409121, at *3 (N.D. Tex. Dec. 21, 2011)
(denying intervention of right because of movant’s conclusory assertions and failure to address
each requirement); see also Edwards, 78 F.3d at 1005 (“Although the applicant’s burden of
showing inadequate representation is minimal, it cannot be treated as so minimal as to write the
requirement completely out of the rule.”) (internal quotation marks omitted).
For the reasons above, Phyllis’ motion to intervene  is DENIED without prejudice.
Phyllis has fourteen (14) days from the date of this order to refile her motion to intervene.7 Such
motion, and any response and reply, must comply with the local rules of this Court, including
Local Rule 7(b)(4)’s memorandum brief requirement.8
SO ORDERED, this 18th day of August, 2017.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE
28 U.S.C. § 1746 (“unsworn declaration” must be “in writing of such person which is subscribed by him, as true
under penalty of perjury, and dated ….”).
The pretrial conference and trial in this case are currently set for September 13, 2017, and October 16, 2017,
respectively, and may be reset if Phyllis refiles her motion to intervene.
Phyllis’ brief should include the subsection of Rule 24 under which she proceeds and how the crossclaims
involving assets other than the annuities relate to the subject matter of the interpleader complaint. Alita and Craig’s
brief should include an analysis of whether their failure to contend that the allegations regarding the assets other
than the annuities were beyond the scope of Federal Rule of Civil Procedure 13(g) results in them waiving the right
to do so.
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