Wilson v. Cruz et al

Filing 189

ORDER Denying 175 Plaintiff's Motion for Leave to File to File Sur-Reply. IT IS FURTHER ORDERED that 152 Lexington Insurance Company's Motion to Intervene is DENIED. Signed by Judge Lloyd D. George on 11/4/13. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KAREN J. WILSON, et al.,

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Plaintiffs,

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v.

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Case No. 2:12-cv-00051-LDG (VCF)

JESSE R. CRUZ, et al.,

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ORDER

Defendants.

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Lexington Insurance Company moves to intervene. (#152). The motion is opposed

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by all current parties to this litigation. (## 154, 164, 166). In addition, the plaintif f Karen

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Wilson requests leave to file a sur-reply (#175), which motion is joined by certain

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defendants (#177), and which motion Lexington has opposed (#176). The Court will deny

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both the motion for leave to file the sur-reply and the motion to intervene.

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Leave to File Sur-reply

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Wilson seeks leave to file a sur-reply, asserting that it is necessary to respond to

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arguments first raised by Lexington in its reply. Lexington counters that it has not raised

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any new arguments in its reply, merely “variations on arguments” first raised in its opening

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brief. A comparison of Lexington’s cursory opening memorandum and its much lengthier

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reply suggests that Lexington is relying on an overly broad definition of “variations” that this

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Court will not adopt. Among other items, Lexington’s reply asserts that it is entitled to

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permissive intervention pursuant to Rule 24(b), an argument not suggested in its opening

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brief. As another example, Lexington’s explanation for its delay in filing the motion to

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intervene expands from a single conclusory sentence in its opening brief to a full paragraph

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and two exhibits in its reply. In light of the significant expansion of arguments between the

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opening and reply brief, the court will exercise its discretion by considering neither

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arguments untimely supported or argued in Lexington’s reply nor Wilson’s sur-reply

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addressing those untimely asserted or supported arguments.

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Motion to Intervene
As alleged in Wilson’s Second Amended Complaint, on April 17, 2010, her husband,

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Larry Wilson, was a passenger in a semi-tractor trailer that struck another, disabled semi-

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tractor trailer that was stopped in a traffic lane of an interstate freeway. Larry died as a

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result of the injuries he sustained in the crash. W ilson brought the instant suit against

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numerous individuals and entities, including Jesse Cruz and Clem-Trans, Inc., that she

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alleges have some connection to or responsibility for the stopping of the disabled semi-

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tractor trailer in the traffic lane.

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Lexington seeks intervention as a matter of right under Rule 24(a)(2).1 Federal

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Rule of Civil Procedure 24(a)(2) requires the court to permit anyone to intervene who

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“claims an interest relating to the property or transaction that is the subject of the action,

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and is so situated that disposing of the action may as a practical matter impair or impede

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the movant's ability to protect its interest, unless existing parties adequately represent that

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interest.” FED. R. CIV. P. 24(a)(2). An applicant seeking to intervene “as of right” pursuant

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As noted earlier, Lexington’s opening memorandum of points and authorities
in support of its motion to intervene offers no argument or indication that it seeks
permissive intervention.

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to Rule 24(a)(2) must satisfy four requirements: “(1) the motion must be timely; (2) the

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applicant must claim a ‘significantly protectable’ interest relating to the property or

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transaction which is the subject of the action; (3) the applicant must be so situated that the

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disposition of the action may as a practical matter impair or impede its ability to protect that

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interest; and (4) the applicant's interest must be inadequately represented by the parties to

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the action.” United States v. Aerojet Gen. Corp., 606 F.3d 1142, 1148 (9th Cir. 2010)

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(internal quotation marks and citations omitted); accord United States v. Alisal Water Corp.,

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370 F.3d 915, 919 (9th Cir. 2004).

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“[A]lthough an applicant seeking to intervene has the burden to show that these four

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elements are met, ‘the requirements are broadly interpreted in favor of intervention.’” Prete

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v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (quoting Alisal Water Corp., 370 F.3d at

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919); see also S.W. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir. 2001)

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(“In general, we construe Rule 24(a) liberally in favor of potential intervenors.”).

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Furthermore, “[i]n determining whether intervention is appropriate, courts are guided

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primarily by practical and equitable considerations.” Alisal Water Corp., 370 F.3d at

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919; accord Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 897 (9th

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Cir.2011).

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In determining whether a motion to intervene is timely, the court considers three

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factors: “(1) the stage of the proceedings at which intervention is sought; (2) the prejudice

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that would be suffered by other parties if intervention were granted; and (3) the reason for

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and length of the delay in seeking intervention.” State of Alaska v. Suburban Propane Gas

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Corp., 123 F.3d 1317, 1319 (9 th Cir. 1997).

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Stage of Proceedings

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Though discovery remained open when Lexington filed its motion, the last date on

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which to amend pleadings or add parties had expired by more than six months.

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Prejudice

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The accident in this matter occurred April 17, 2010. Lexington did not move to

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intervene and file its complaint-in-intervention until May 14, 2013, more than three years

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after the accident occurred. For Lexington’s insured, whom Lexington alleges is a party

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whose property was damaged in that accident, Nevada’s three-year statute of limitations

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for damages to personal property expired prior to the filing of the motion to intervene. See,

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Nev. Rev. Stat. §11.190. Lexington’s subrogation claims accrued on the date of the

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property damage to its insured. State Farm. Mut. Auto. Ins. Co. v. Wharton, 88 Nev. 183,

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187 (1972).

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Lexington asserts, in its moving papers, that the Ninth Circuit has held that a

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subrogated insurer has a right to intervene to enforce its right of subrogation, citing

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Cummings v. United States, 704 F.2d 437, 439 (9 th Cir. 1983). While a subrogated insurer

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can intervene in appropriate circumstances, Lexington’s ’s reliance on Cummings is

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misplaced. In that decision, the Ninth Circuit determined that the subrogated insurer’s

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intervention had the same effect as a substitution of the insurer (the real party) for the

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insured (who had timely filed a complaint). “Such a substitution would relate back to the

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filing of the original complaint.” Id., at 439-440 In the present matter, Lexington’s insured

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is not, and never has been, a party to this litigation. Lexington’s complaint-in-intervention,

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therefore, cannot act or have the same effect as a substitution of the real party. That

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Lexington’s insured employed the decedent does not make Lexington a real party in

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interest to a suit brought by the decedent’s widow. That Lexington’s complaint-in-

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intervention would, if filed on its own, be barred by the statute of limitations, suggests to the

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Court that the plaintiff and the defendants would be prejudiced by Lexington’s intervention

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in this matter. That Rules 15 and 17 jurisprudence suggest Lexington’s complaint-in-

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intervention does not relate back to W ilson’s complaint indicates to the Court that the

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prejudice to the plaintiff and defendants would be unfairly prejudicial.

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Reason for Delay

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Having carefully reviewed the entirety of Lexington’s opening memorandum, the only

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explanation the Court could discover explaining Lexington’s delay is its bald assertion “it

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subsequently learned of [Wilson’s] action and now seeks to intervene.”

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Conclusion

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Given the late stage of proceedings, the unfair prejudice to the parties, and

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Lexington’s lack of any meaningful explanation for its delay, the Court concludes that

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Lexington’s motion is not timely. As Lexington has not satisfied the first of the four required

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elements necessary to showing that it has a right to intervene, the Court need not consider

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the remaining three requirements. Therefore,

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THE COURT ORDERS that Plaintiff’s Motion for Leave to File Sur-reply (#175) is
DENIED;
THE COURT FURTHER ORDERS that Lexington Insurance Company’s Motion to
Intervene (#152) is DENIED.

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DATED this ______ day of November, 2013.

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Lloyd D. George
United States District Judge