Miller v. Alabama Great Southern Railroad Company
ORDER denying 65 Motion to Intervene. Signed by Magistrate Judge Michael T. Parker on March 17, 2017. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SHAQUERE MYLESHIA GRAY and
HANNAH LASHA HOZE
Co-Administratrices of the Estate of Gregory Tramaine Miller
CIVIL ACTION NO. 2:16-cv-25-KS-MTP
ALABAMA GREAT SOUTHERN RAILROAD COMPANY
THIS MATTER is before the Court on the Motion to File Intervention  filed by the
law firm of Davis, Saunders, Miller & Oden PLC (“DSMO”). Having considered the Motion
 and the record, the Court finds that the Motion  should be denied.
This action arises from the death of Gregory Tramaine Miller, who was allegedly killed
as a result of an accident which occurred while he was working as an employee of Defendant
Alabama Great Southern Railroad Company. See Complaint . On September 22, 2015, the
Wayne County Chancery Court appointed Miller’s mother, Mona Shea Miller, as adminstratrix
of the Estate of Gregory Tramaine Miller. See Exhibit [54-1]. Thereafter, Mona Shea Miller,
represented by DSMO, filed this wrongful death action under the Federal Employers’ Liability
Act (“FELA”), 45 U.S.C. § 51 et seq.
In late 2015, it was determined that the decedent was the biological father of minor
children ZKG and GTH, and on May 24, 2016, the Wayne County Chancery Court determined
that ZKG and GTH are the only heirs at law and wrongful death beneficiaries of the decedent.
See Exhibit [54-1]. On June 10, 2016, Letter of Administration were issued by the state court,
appointing the mother of ZKG—Shaquere Myleshia Gray—and the mother of GTH—Hannah
Lasha Hoze—as co-administratrices of the decedent’s estate. Id.; Exhibit [54-2].
Thereafter, counsel for Gray and Hoze entered an appearance in this action and filed a
Motion  seeking to substitute Gray and Hoze as the proper party in place of Mona Shae
Miller. On November 22, 2016, the Court granted the Motion  and substituted Grey and
Hoze as the proper Plaintiffs in place of Mona Shae Miller. See Order .
On January 31, 2016, DSMO filed the instant Motion , seeking to intervene in this
action in order to recover “reasonable attorney’s fees and monies expended during its
prosecution of the present Federal Employer’s Liability Act (“FELA”) litigation while
representing the former-proper party Plaintiff and Personal Representative, Mona Miller.”
DSMO seeks to intervene as of right in this action pursuant to Federal Rule of Civil
Procedure 24(a). Alternatively, DSMO seeks a permissive intervention pursuant to Rule 24(b).
Federal Rule of Civil Procedure 24(a)(2) provides:
On timely motion, the court must permit anyone to intervene who:
(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.
According to Fifth Circuit precedent, in order to intervene as a right, a movant must meet
the following four prerequisites:
(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; (4) the applicant’s interest must be
inadequately represented by the existing parties to the suit.
Taylor Commc’ns Grp., Inc. v. Southwestern Bell Tel. Co., 172 F.3d 385, 387 (5th Cir. 1999). A
movant’s “[f]ailure to meet any one of these requirements is fatal to a claim of intervention as of
Federal Rule of Civil Procedure 24(b)(1)(B) provides that “[o]n 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.” “In exercising its discretion, the court must consider whether
the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.”
Fed. R. Civ. P. 24(b)(3). Even if the requirements of Rule 24(b)(1)(B) are satisfied, permissive
intervention is wholly discretionary with the court. New Orleans Public Service, Inc. v. United
Gas Pipe Line Co., 732 F.2d 452, 470-71 (5th Cir. 1984).
Approval from the Wayne County Chancery Court is required for any award of attorney
fees derived from proceeds attributable to decedent’s minor children. See Foster v. Kotsakos, 147
So. 3d 896, 898 (Miss. App. 2014; Willing v. Estate of Benz, 958 So. 2d 1240, 1255-56 (Miss.
App. 2007). The chancery court has the authority to allocate any proceeds obtained as a result of
this action. Uniform Chancery Court Rule 6.12 provides:
Every petition by a fiduciary or attorney for the allowance of attorney’s fees for
services rendered shall set forth the . . . facts . . . touching his compensation, and .
. . nature and effect thereof. If the petition be for the allowance of fees for
recovering damages for wrongful death or injury, or other claim due the estate, the
petition shall show the total amount recovered, the nature and extent of the service
rendered and expense incurred by the attorney . . . . In such cases, the amount
allowed as attorney’s fees will be fixed by the Chancellor at such sum as will be
reasonable compensation for the service rendered and expenses incurred without
being bound be any contract made with any unauthorized persons.
Miss. U. Ch. Ct. R. 6.12.
DSMO may protect its interest in any proceeds in the state chancery court. Indeed,
DSMO “acknowledges that it may also assert its claim in Chancery Court given that any
attorney’s fees affecting the interest of minors are set, finally and formally, by the Chancery
Court judge.” See Motion  at 2. Thus, DSMO is not entitled to intervene as a right. See Deus
v. Allstate Ins. Co., 15 F.3d 506, 526 (5th Cir. 1994) (“Intervention generally is not appropriate
where the applicant can protect its interests and/or recover on its claim through some other
DSMO also argues that this Court should allow permissive intervention. According to
DSMO, this Court is in the best position to evaluate DSMO’s quantum meruit claims. The
chancery court, however, may assess fees based on quantum meruit. See Pannell v. Guess, 671
So. 2d 1310, 1315 (Miss. 1996). The chancery court is thoroughly familiar with this action as
DSMO and counsel for Gray and Hoze have been before the chancellor multiple times. The
chancellor previously ruled that Gray and Hoze “are now the ones authorized by this Court to act
as personal representative in pursuing the litigation for the wrongful death of Gregory Tramaine
Miller.” See Exhibit [54-1]. This Court suspended the deadlines of the initial Case Management
Order  until the chancellor made a ruling on Mona Shea Miller’s motion asking the chancery
court to reconsider its ruling regarding the proper administrator of the estate. See Order .
In its discretion, the Court finds that DSMO’s request for permissive intervention should
be denied. In this matter, the determination of appropriate attorneys’ fees is best left to the
chancery court, which can weigh the rights of the attorneys and the rights of the minors and the
estate pursuant to Mississippi law.
IS IT, THEREFORE, ORDERED that the Motion to File Intervention  is DENIED.
SO ORDERED this the 17th day of March, 2017.
s/Michael T. Parker
UNITED STATES MAGISTRATE JUDGE
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