Price v. Daigre et al
Filing
71
ORDER denying 61 Motion to Intervene; finding as moot 64 Motion for Permanent Injunction and Damages; finding as moot [66 & 67] Motion to Strike or Hold in Abeyance; finding as moot [68 & 69] Motion to Hold in Abeyance. Signed by Honorable David C. Bramlette, III on 12/05/2011 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JOHN PRICE
PLAINTIFF
VS.
CIVIL ACTION NO. 5:08-cv-16(DCB)(JMR)
JANET HYLAND DAIGRE,
JOHN L. HYLAND, III,
LOOSA YOKENA, L.P.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the Court on a Motion by Anderson-Tully
Company (“ATCO”) to Intervene Pursuant to Rule 24 (docket entry
61); ATCO’s Motion for Injunction and Damages (docket entry 64);
defendants’ Motion to Strike or hold in Abeyance the Motion for
Injunction and Damages (docket entries 66 and 67); and plaintiff’s
Motion to Hold in Abeyance the Motion for Injunction and Damages
(docket entries 68 and 69).
Having carefully considered the
motions and responses, the briefs of the parties and the applicable
law, the Court finds as follows:
This
action
originated
as
a
landowners concerning a drainage ditch.
dispute
between
adjacent
The plaintiff’s complaint
was filed on February 5, 2008, amended on January 30, 2009, and
amended again on November 2, 2009.
The parties ultimately settled
on July 27, 2010, and this case was dismissed with prejudice.
The
proposed
intervenor
seeks
intervention
pursuant
to
Fed.R.Civ.P. 24(a)(2)(“intervention as of right”), or Fed.R.Civ.P.
24(b)(“permissive intervention”).
A movant is entitled to intervention as of right if “(1) the
motion to intervene is timely; (2) the potential intervenor asserts
an interest that is related to the property or transaction that
forms the basis of the controversy in the case into which [it]
seeks to intervene; (3) the disposition of that case may impair or
impede
the
potential
intervener’s
ability
to
protect
[its]
interest; and (4) the existing parties do not adequately represent
the potential intervener’s interest.”
John Doe No. 1 v. Glickman,
256 F.3d 371, 375 (5th Cir. 2001)(citations omitted).
A movant is entitled to permissive intervention if “(1) timely
application is made by the intervenor, (2) the intervenor’s claim
or defense and the main action have a question of law or fact in
common, and (3) intervention will not unduly delay or prejudice the
adjudication of the rights of the original parties.”
League of
United Latin Am. Citizens, Council No. 4434 v. Clements, 884 F.2d
185, 189 (5th Cir. 1989)(citations omitted).
A motion pursuant to Rule 24 “must state the grounds for
intervention and be accompanied by a pleading that sets out the
claim or defense for which intervention is sought.”
24(c).
Fed.R.Civ.P.
The pleading attached to ATCO’s motion is a proposed
“Complaint for Injunction and Damages,” which recites that the
movant seeks to reopen this case “to enable the parties to resolve
their differences relative to a settlement agreement.”
Proposed
Complaint, ¶ 2. ATCO states that it owns property adjacent to that
2
of the defendants.
Id. at ¶ 3.
It further alleges that it “has a
common interest in the litigation pending before the Court and the
terms of the settlement and has requested intervention since it
affects property owned by it.”
Id. at 2.
The proposed complaint
alleges:
As a result of activities initiated by the
Defendants and continuing to be maintained by them,
certain manmade drainage ditches and creeks were caused
to be created or altered in recent years and certain
levees have been altered so that sludge, silt, sediment
and other materials have formed which have created a
major alteration in the course of the drainage from the
properties owned by the Defendants causing the water and
drainage to now flow onto ATCO’s property which has
resulted in ultimately killing and otherwise damaging
approximately 55 acres of timber growing on ATCO’s land.
Unless the activities of the Defendants are stopped
through an injunction, continued irreparable harm and
continuing damages will be sustained by ATCO, and ATCO
requests that this Court enter a permanent injunction
against the Defendants mandating that they shall correct
the problems, perform such remedial measures as may be
necessary and discontinue the activities that are causing
the flooding and accumulation of debris onto ATCO’s land.
Id. at ¶¶ 4-5.
Rules 24(a) and 24(b) both provide for intervention only upon
“timely application.” In analyzing the timeliness requirement, the
Fifth Circuit has suggested the use of four factors: “(1) the
length of time during which the would-be intervenor actually knew
or reasonably should have known of its interest in the case before
it petitioned for leave to intervene; (2) the extent of the
prejudice that the existing parties to the litigation may suffer as
a
result
of
the
would-be
intervenor’s
3
failure
to
apply
for
intervention as soon as it knew or reasonably should have known of
its interest in the case; (3) the extent of the prejudice that the
would-be intervenor may suffer if intervention is denied; and (4)
the existence of unusual circumstances militating either for or
against a determination that the application is timely.
Sierra
Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994).
It has been said that timeliness is the “prevenient question”
when intervention is at issue.
Banco Popular v. Greenblatt, 964
F.2d 1227, 1230 (1st Cir. 1992).
The First Circuit has noted:
The timeliness inquiry is inherently fact-sensitive
and depends on the totality of the circumstances. In
evaluating that mosaic, the status of the litigation at
the time of a motion to intervene is “highly relevant.”
As a case progresses toward its ultimate conclusion, the
scrutiny attached to a request for intervention
necessarily intensifies.
R&G Mortgage Corp. v. Federal Home Mortgage Corp., 584 F.3d 1, 7
(1st Cir. 2009)(citing Greenblatt, 964 F.2d at 1230-31)(internal
citations omitted).
The present motion was filed three years after the original
action was commenced, and eight months after the final order
dismissing this case was entered.
With regard to the first
timeliness factor, the length of time during which the movant knew
or should have known of its interest in the case, ATCO fails to
offer
a
sufficient
reason
to
explain
its
delay
in
seeking
intervention, thus this factor weighs against intervention.
See
Orange County v. Air California, 799 F.2d 535, 538 (9th Cir.
4
1986)(“[T]o prevail, [movant] must convincingly explain its delay
in filing its motion to intervene.”).
The second timeliness factor is the extent of prejudice to the
existing parties.
Such prejudice is “measured by the delay in
seeking intervention, not the inconvenience to the existing parties
of allowing the intervenor to participate in the litigation.”
Sierra Club v. Espy, 18 F.3d 1202, 1206 (5th Cir. 1994).
It has been noted that “any substantial lapse of time weighs
heavily against intervention.”
F.3d 1499 (9th Cir. 1996).
U.S. v. State of Washington, 86
See also Johnson v. City of Memphis, 73
Fed.Appx. 123, 132 (6th Cir. 2003)(extensive litigation activity
prior to motion to intervene counsels against intervention); U.S.
v. Ritchie Special Credit Investments, Ltd., 620 F.3d 824, 832 (8th
Cir. 2010)(intervention denied where litigation had progressed
substantially).
This is especially true where, as here, the case
has progressed to settlement and final dismissal with prejudice.
See In re Old Bank One Shareholders Securities Litigation, 2007 WL
4592076, *3 (N.D. Ill. Dec. 28, 2007)(“For the Bank to settle, and
then
have
this
case
reopened,
would
substantial prejudice to the Bank.”).
result
in
obvious
and
The Court finds that the
existing parties would be prejudiced by the delay, which weighs
against a finding of timeliness.
As for the third timeliness factor, prejudice to the would-be
intervenor, the denial of ATCO’s motion to intervene will not cause
5
it significant prejudice, because it still has an adequate remedy it may bring a separate action against the defendant and/or the
plaintiff in state court.
See R&G Mortg. Corp. v. Federal Home
Mortg. Corp., 584 F.3d 1, 10 (1st Cir. 2009)(“The availability of
an adequate alternative remedy softens any plausible claim of
prejudice.”).
The final timeliness element, special circumstances, also
weighs
against
intervention.
ATCO
has
shown
no
circumstances that would favor a finding of timeliness.
unusual
Instead,
the fact that this case has been dismissed with prejudice upon
settlement by the parties militates against a determination that
ATCO’s motion to intervene was timely.
See id.
The Court therefore concludes that ATCO has failed to carry
its burden to establish that its motion was timely filed, and the
Court finds the motion to be untimely.
Because all four elements
must be satisfied for intervention as of right, Sierra Club, 18
F.3d at 1205, a finding that a motion to intervene is untimely
makes
consideration
unnecessary.
of
the
remaining
Rule
24(a)(2)
factors
United States v. Covington County School District,
499 F.3d 464, 466 (5th Cir. 2007).
Nevertheless, in the interest
of making a full record, the Court shall address the remaining
factors relevant to ATCO’s motion.
See Orange County, 799 F.2d at
538-39; Florida Key Deer v. Brown, 232 F.R.D. 415, 418-19 (S.D.
Fla. 2005); Harris v. City of Chattanooga, 2005 WL 2219099, *2 n.2
6
(E.D. Tenn. Sept. 13, 2005).
The second element of intervention as of right is an interest
related to the property or transaction that forms the basis of the
controversy.
ATCO must show that it has “a direct, substantial,
legally protectable interest in the proceedings.”
New Orleans
Public Service, Inc. v. United Gas Pipeline Co., 732 F.2d 452, 463
(5th
Cir.
1984)(citations
omitted).
Thus,
a
movant
seeking
intervention in a suit involving rights under a contract to which
it is not a party does not have a legally protectable interest that
would support intervention.
Westlands Water Dist. v. United
States, 700 F.2d 561, 563 (9th Cir. 1983). In addition, “[t]he real
party in interest requirement of Rule 17(a), Fed.R.Civ.P., ‘applies
to intervenors as well as plaintiffs,’ as does also the rule that
‘a party has no standing to assert a right if it is not its own.’”
New Orleans Pub. Serv., 732 F.2d at 464 (quoting United States v.
936.71 Acres of Land, 418 F.2d 551, 556 (5th Cir. 1969)).
Furthermore, “[a] prerequisite of an intervention (which is an
ancillary proceeding in an already instituted suit) is an existing
suit within the Court’s jurisdiction.”
Non Commissioned Officers
Ass’n v. Army Times Publ’g Co., 637 F.2d 372, 373 (5th Cir.
1981)(citation omitted).
“That none of the individual claims
remained viable ... when the motion to intervene was filed,
disposes of the attempt at intervention.” Krim v. pcOrder.com, 402
F.3d 489, 502 (5th Cir. 2005)(citing Non Commissioned Officers
7
Ass’n, 637 F.2d at 373).
See also Houston Gen. Ins. Co. v. Moore,
193 F.3d 838, 840 (4th Cir. 1999)(“When Beaumont filed its motion
to intervene more than 60 days after the entry of final judgment,
there was no pending litigation in which Beaumont could intervene.
Therefore, the motion was untimely ....”)(cited in Ericsson, Inc.
v. Interdigital Comm. Corp., 418 F.3d 1217, 1222 (Fed. Cir. 2005).
Litigation in the case sub judice ended on July 27, 2010, when
the
Court
settlement.
dismissed
this
action
with
prejudice
following
Thus, the only proceeding pending before the Court is
the motion to enforce settlement agreement. ATCO is not a party to
the settlement agreement, and has no legally protectable interest
in the enforcement thereof; therefore, it does not have a legally
protectable interest in the proceeding before this Court.
Even if ATCO could show a legally protectable interest in the
proceeding, it cannot show that the disposition of the motion to
enforce settlement agreement might impair or impede its ability to
protect that interest.
The settlement agreement does not impose
any legal obligations or duties on ATCO, nor does it impair the
interests of any non-parties.
Moreover, “[i]ntervention generally
is not appropriate where the applicant can protect its interests
and/or recover on its claim through some other means.”
Deus v.
Allstate Ins. Co., 15 F.3d 506, 526 (5th Cir. 1994)(citation
omitted). ATCO has the ability to protect any interest it may have
by filing an action in Mississippi state court.
8
Because the Court
finds that ATCO’s motion is untimely, that it has not asserted a
legally protectable interest in the proceeding, and that any
interest it may have would not be impaired or impeded by the
proceeding, ATCO’s motion to intervene as of right shall be denied,
and it is unnecessary for the Court to reach the last element of
intervention of right (whether the existing parties adequately
represent the potential intervenor’s interest).
As for permissive intervention, the Fifth Circuit has held
that it “is wholly discretionary with the [district] court ... even
though
there
is
a
common
question
of
law
or
fact,
requirements of Rule 24(b) are otherwise satisfied.”
or
the
New Orleans
Pub. Serv., 732 F.2d at 471 (quoting 7C Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1913 (3d ed.
2009)).
A finding that a motion for intervention as of right is
untimely applies equally to a motion for permissive intervention.
Lucas v. McKeithen, 102 F.3d 171, 173 (5th Cir. 1996).
ATCO’s motion should be denied as untimely.
Margolis,
1992
WL
80512,
*5
n.5
(N.D.
Therefore,
Id; see also Dixon v.
Ill.
April
14,
1992)
(“Application after the original parties have settled is unlikely
to be found to be timely under Rule 24(b).”)(citing Bethune Plaza,
Inc. v. Lumpkin, 863 F.2d 525, 534 (7th Cir. 1988)).
In addition, the movant has failed to show that its claim or
defense has a question of law or fact in common with the motion to
9
enforce settlement agreement.
The Court’s role in the proceeding
is to decide whether to enforce the settlement agreement, not to
change or amend it.
See Solis v. Magana, 2010 WL 1257859, *4 (E.D.
Tenn. March 26, 2010).
And allowing ATCO to re-open this case
which has been dismissed with prejudice would clearly result in
prejudice to the original parties.
See U.S. v. Metropolitan Dist.
Comm’n., 679 F.Supp. 1154, 1161-62 (D. Mass. 1988).
The Court
further notes that only the parties are bound by the settlement.
Neither stare decisis, collateral estoppel, nor res judicata would
preclude any future proceedings ATCO may wish to bring. See Orange
County, 799 F.2d at 538-39.
Finally,
permissive
intervention
requires
an
independent
jurisdictional basis. Harris v. Amoco Prod. Co., 768 F.2d 669, 675
(5th Cir. 1985); E.E.O.C. v. Nat’l Children’s Ctr., 146 F.3d 1042,
1046 (D.C. Cir. 1998); 13b Wright, et al., Federal Practice and
Procedure 2d § 3608 (1984)(“permissive intervenors under Rule 24(b)
are required to meet jurisdictional requirements so that the
existence
of
intervention
diversity
is
must
be
requested.”).
redetermined
ATCO’s
at
proposed
the
time
Motion
for
Injunction and Damages reflects that ATCO, the plaintiff, and all
defendants are resident citizens of Mississippi, thus diversity
jurisdiction is lacking and no other basis for jurisdiction is
asserted.
For
all
of
the
above
stated
10
reasons,
ATCO’s
motion
to
intervene is denied.
Accordingly,
IT IS HEREBY ORDERED that Anderson-Tully Company’s Motion to
Intervene Pursuant to Rule 24 (docket entry 61) is DENIED;
FURTHER ORDERED that ATCO’s Motion for Injunction and Damages
(docket entry 64); defendants’ Motion to Strike or hold in Abeyance
the Motion for Injunction and Damages (docket entries 66 and 67);
and
plaintiff’s
Motion
to
Hold
in
Abeyance
the
Motion
for
Injunction and Damages (docket entries 68 and 69) are DENIED AS
MOOT.
SO ORDERED, this the 5th day of November, 2011.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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