Green et al v. City of St. Louis Missouri

Filing 81

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the motion to intervene filed by Robert Dan Eveland, William Ellner, Steven Nienhouse, Darren Williams, Andrew Woodhead, Donald Tony Champ, Licole McKinney, Timothy Schultz, Ted Chrun, Kevin Herdler Michael Vincent, Ted Ellis, Joseph Nea, Jessica Jackson, Nick Scanga, John Fischer, and Dave Hummel 75 is DENIED. (see full Memo & Order for details.) Signed by District Judge Rodney W. Sippel on 09/09/2022. (KRZ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PERCY GREEN, III, et al.,
Plaintiffs,
v.
CITY OF ST. LOUIS, MISSOURI,
Defendant.

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No. 4:15 CV 1433 RWS

MEMORANDUM AND ORDER
This case was closed on August 16, 2017, when it was dismissed with
prejudice pursuant to a notice of voluntary dismissal. The case is before me on the
motion to intervene filed by Robert “Dan” Eveland, William Ellner, Steven
Nienhouse, Darren Williams, Andrew Woodhead, Donald “Tony” Champ, Licole
McKinney, Timothy Schultz, Ted Chrun, Kevin Herdler, Michael Vincent, Ted
Ellis, Joseph Nea, Jessica Jackson, Nick Scanga, John Fischer, and Dave Hummel
(“Movants”).1 Doc. 75. Movants seek to intervene in this case to enforce the
settlement agreement entered into by the original parties. For the reasons discussed
below, Movants’ motion will be denied.

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McKinney and Vincent have withdrawn their participation in the present motion because they
were among the original plaintiffs in this case.

BACKGROUND
This case was filed in 2015 in state court by several black firefighters for the
City of St. Louis, Missouri (the “City”), who applied for a promotion to the rank of
captain or battalion chief in 2013 (“Plaintiffs”). Plaintiffs brought several claims
against the City for employment discrimination and equitable relief, alleging that the
City structured its 2013 promotional tests for the ranks of captain and battalion chief
in a way that adversely and disproportionately affected black candidates. Plaintiffs
also alleged that the City treated black and white candidates differently in its
administration of promotional tests for the rank of captain.
The case was removed from state court to this Court. A scheduling conference
was later held, and the case was referred to alternative dispute resolution (“ADR”).
Following ADR, the parties informed me that they had reached a resolution, pending
the final approval and execution of a settlement agreement. The jury trial setting in
this case was then vacated, and the parties were ordered to file dismissal papers.
However, after being granted several extensions of time to file such papers, the
parties informed me that they had been unable to come to a full resolution and
settlement. As a result, another scheduling conference was held, followed by several
additional status conferences.
Then, on August 15, 2017, Plaintiffs filed a notice of voluntary dismissal with
prejudice, indicating that the City acknowledged a settlement and consented to the
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dismissal of the case. An order of dismissal pursuant to the notice of voluntary
dismissal was entered on the following day. A copy of the parties’ settlement
agreement was attached to the order of dismissal, which stated, in relevant part: “A
copy of the fully-executed settlement agreement is attached and filed with the court
to be part of the permanent record of this case.” The case was then closed, and there
was no further activity until Movants’ present motion to intervene.
Movants filed their motion to intervene on August 3, 2022—almost five years
after this case was dismissed with prejudice and closed. Movants are firefighters for
the City, and they seek to intervene to enforce the settlement agreement entered into
by Plaintiffs and the City. Both Plaintiffs and the City oppose Movants’ motion.
DISCUSSION
Movants’ motion will be denied because it is untimely. Under Rule 24 of the
Federal Rules of Civil Procedure, a party may seek to intervene in a case either as a
matter of right or by permission. With either type of intervention, the threshold
question is whether the motion to intervene is timely.

National Ass’n for

Advancement of Colored People (“NAACP”) v. New York, 413 U.S. 345, 365
(1973); see also Arkansas Elec. Energy Consumers v. Middle S. Energy, Inc., 772
F.2d 401, 403 (8th Cir. 1985) (“In determining whether intervention should be
allowed, either as a matter of right or permission, the threshold question is whether

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a timely application has been filed.”).

If a motion to intervene is untimely,

“intervention must be denied.” NAACP, 413 U.S. at 365.
The determination of whether a motion to intervene is timely is a matter within
a district court’s discretion. American Civil Liberties Union (“ACLU”) of Minn. v.
Tarek ibn Ziyad Acad., 643 F.3d 1088, 1094 (8th Cir. 2011).

While this

determination must be “based on all of the circumstances,” a district court must
consider the following factors: “(1) the extent the litigation has progressed at the
time of the motion to intervene; (2) the prospective intervenor’s knowledge of the
litigation; (3) the reason for the delay in seeking intervention; and (4) whether the
delay in seeking intervention may prejudice the existing parties.” Id. (citing United
States v. Ritchie Special Credit Invs., Ltd., 620 F.3d 824, 832 (8th Cir. 2010)).
In this case, the parties have provided very little discussion of the timeliness
of Movants’ motion. The only reference to the timeliness of Movants’ motion is
Movants’ cursory statement, unsupported by any citations to legal authority, that
their motion is “undeniably timely” because it was filed within a few months of the
City’s alleged breach of the settlement agreement. None of the parties have provided
any discussion of the relevant factors to be considered when determining whether a
motion to intervene is timely. Nevertheless, upon consideration of the relevant
factors, I find that Movants’ motion is untimely.

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The first factor—the extent the litigation has progressed at the time of the
motion to intervene—weighs heavily against intervention because the litigation in
this case had been concluded for almost five years at the time of Movants’ motion.
See, e.g., United Food & Com. Workers Union, Local No. 663 v. United States Dep’t
of Agric., 36 F.4th 777, 780–81 (8th Cir. 2022) (finding the first factor weighed
“strongly against intervention” where movants sought to intervene over a month
after the court entered summary judgment and full vacatur); McClain v. Wagner
Elec. Corp., 550 F.2d 1115, 1120 (8th Cir. 1977) (internal quotation marks omitted)
(“[T]here is considerable reluctance on the part of the courts to allow intervention
after the action has gone to judgment and a strong showing will be required of the
applicant. Motions for intervention after judgment ordinarily fail to meet this
exacting standard and are denied.”).
The second factor—the prospective intervenor’s knowledge of the
litigation—weighs against intervention because Movants were likely aware of the
litigation in this case long before they sought to intervene. Indeed, as firefighters
for the City, Movants have likely been aware of this case since near its inception.
Because Movants do not present any argument or evidence to the contrary, the
second factor also weighs heavily against intervention. See United Food & Com.
Workers Union, 36 F.4th at 781 (quoting In re Wholesale Grocery Prods. Antitrust
Litig., 849 F.3d 761, 767 (8th Cir. 2017)) (stating the second factor “‘weighs heavily
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where the would-be intervenor was aware of the litigation for a significant period of
time before attempting to intervene’”); Nevilles v. Equal Emp’t Opportunity
Comm’n, 511 F.2d 303, 306 (8th Cir. 1975) (affirming denial of intervention where
“[t]he district court could reasonably have determined that [movants] did not allege
or prove that they had no knowledge of the suit during its pendency which would
justify the delay in filing their motion”).
The third factor—the reason for the delay in seeking intervention—weighs
against intervention because Movants have not provided any explanation of why
they chose not to intervene in this case while it was pending. In the absence of some
persuasive justification for Movants’ lengthy delay in seeking to intervene, the third
factor also weighs against intervention. See United Food & Com. Workers Union,
36 F.4th at 781 (finding the third factor favored denying intervention because
movants’ justification for their delay in seeking intervention was unpersuasive and
insufficient); Nevilles, 511 F.2d at 305 (“[T]he burden was on [movants] to
demonstrate that they had no notice of the action and that this was sufficient reason
for waiting over a year from commencement of suit, and over two months after entry
of judgment, before they moved to intervene.”).
The final factor—whether the delay in seeking intervention may prejudice the
existing parties—is either neutral or weighs against intervention because Movants
will not be significantly prejudiced by the denial of their motion. Movants will not
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be significantly prejudiced by the denial of their motion because, to the extent they
have claims for violations of their rights under the settlement agreement, they may
pursue those claims in a separate action. See Ritchie Special Credit Investments,
620 F.3d at 834 (noting there would be no prejudice to movant if it was not allowed
to intervene because movant had another venue to contest and protect its claims and,
therefore, had sufficient remedies to make intervention unnecessary). Furthermore,
even if intervention would not prejudice Plaintiffs and the City, I would still
conclude that Movants’ motion is untimely based on “the progress of the litigation,
[Movants’] knowledge of it, and [Movants’] failure to adequately explain the delay.”
See ACLU of Minn., 643 F.3d at 1095.
In sum, the relevant factors weigh against permitting Movants to intervene in
this case because the litigation had been concluded for almost five years at the time
of Movants’ motion, Movants were likely aware of the case since near its inception,
Movants have not provided a persuasive justification for their delay in seeking to
intervene, and Movants will not be significantly prejudiced by the denial of their
motion. Because the relevant factors weigh against permitting Movants to intervene
in this case, their motion will be denied as untimely.
Moreover, contrary to Movants’ assertion, I note that I do not have automatic
jurisdiction to enforce the settlement agreement in this case because the original
parties’ obligation to comply with the settlement agreement was not made a part of
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the order of dismissal. As the parties acknowledge, “district courts do not have
inherent power, that is, automatic ancillary jurisdiction, to enforce an agreement
settling federal litigation.” Miener v. Missouri Dept. of Mental Health, 62 F.3d
1126, 1127 (8th Cir. 1995); see also Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375 (1994)). Such jurisdiction “exists only ‘if the parties’ obligation to
comply with the terms of the settlement agreement is made part of the order of
dismissal—either by a provision retaining jurisdiction over the settlement agreement
or by incorporation of the terms of the settlement agreement in the order.’” Id.
(quoting Kokkonen, 511 U.S. at 381).
In this case, the order of dismissal stated that “[a] copy of the fully-executed
settlement agreement is attached and filed with the court to be part of the permanent
record of this case.” The order of dismissal did not, however, contain a provision
retaining jurisdiction over the settlement agreement or a provision incorporating the
terms of the settlement agreement into the order. The mere fact that the settlement
agreement was made a part of the “permanent record of this case” did not make the
parties’ obligation to comply with the settlement agreement a part of the order of
dismissal. While Movants urge me to adopt an alternative interpretation of the order
of dismissal, their arguments are ultimately unpersuasive, particularly in light of the
original parties’ opposition to their proposed interpretation.

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CONCLUSION
Because Movants’ motion is untimely and this Court does not have automatic
jurisdiction to enforce the original parties’ settlement agreement, Movants’ motion
will be denied. To the extent Movants have claims for violations of their rights under
the settlement agreement, those claims should be pursued in a separate action.
Accordingly,
IT IS HEREBY ORDERED that the motion to intervene filed by Robert
“Dan” Eveland, William Ellner, Steven Nienhouse, Darren Williams, Andrew
Woodhead, Donald “Tony” Champ, Licole McKinney, Timothy Schultz, Ted
Chrun, Kevin Herdler Michael Vincent, Ted Ellis, Joseph Nea, Jessica Jackson, Nick
Scanga, John Fischer, and Dave Hummel [75] is DENIED.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 9th day of September 2022.

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