RJT Whelchel Development Company LLC v. Whelchel Mines Company et al

Filing 27

ORDER granting 22 Motion to Amend - the 18 Judgment is vacated; denying 23 Motion to Intervene. Plaintiff to show cause within 14 days why the case should not be dismissed (Show Cause Response due by 2/28/2014). Defendants and Petitioners may respond seven days thereafter. Signed by Judge Robert C. Jones on 02/12/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RJT WHELCHEL DEVELOPMENT CO., LLC, )
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Plaintiff,
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vs.
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WHELCHEL MINES CO., et al.,
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Defendants.
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3:13-cv-00242-RCJ-VPC
ORDER

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Plaintiff sued Whelchel Mines Co., the Estate of Arthur Whelchel, the Estate of Thressa

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Mae Eva Whelchel, Elizabeth Ann Whelchel (in her capacity as personal representative of those

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two estates), Timothy A. Whelchel, John A. Whelchel, and Anita Whelchel in this Court to quiet

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title to certain mining claims. The parties stipulated to a consent judgment, which the Court

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entered before ruling on a then-pending motion to intervene by Great Basin Mining &

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Exploration Corp. (“Great Basin”) and Continental Exploration and Mining Co. (“Continental,”

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and collectively, “Petitioners”). The Court later denied Petitioners’ motion to intervene as moot.

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Plaintiff has now filed a motion under Rule 60(b), asking the Court to amend the

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Complaint to add as defendants Loren J. Whelchel and Sharon Gail Lane (nee Whelchel), who

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Plaintiff now believes may claim an interest in the disputed claims because they, like Timothy

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and John Whelchel, are potential heirs or legatees of deceased non-party Michael Ralph

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Whelchel. Petitioners have asked the Court to reconsider intervention if the Court is inclined to

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give Plaintiff leave to amend the Complaint.

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No party has timely opposed the motion to amend, but Plaintiff has timely opposed the

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motion to intervene. Plaintiff wishes to obtain a quasi in rem judgment and has recently

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discovered new parties to which he would like the judgment to apply. Reopening the case to give

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these new parties notice and an opportunity to be heard, such that the judgment will pertain to

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them, as well, is appropriate. Reconsideration of the motion to intervene is not appropriate,

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however. The Court will therefore vacate the previous consent judgment and permit Plaintiff to

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file an amended complaint, and it will deny Petitioners’ renewed motion to intervene.

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Intervention is not warranted. Plaintiff correctly notes in opposition that the Complaint

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seeks only a quasi in rem judgment as against the parties to the action, such that intervention by

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right is not appropriate because a judgment would not impair the ability of Petitioners to protect

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their own interests. See Fed. R. Civ. P. 24(a)(2). Petitioners could bring a future action to

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adjudicate their rights in the property generally, or as against Plaintiff, and the judgment in the

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present action would have no preclusive effect in those proceedings as to Petitioners. Neither

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will the Court grant permissive intervention. Petitioners do not argue there is any federal statute

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granting them a conditional right to intervene or that their claims share common questions of law

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or fact. See Fed. R. Civ. P. 24(b)(1). Petitioners argue purely under Rule 24(a).

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However, Petitioners note that there have been several state court actions as to the

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disputed mining claims, so the Court will order Plaintiff to identify whether any such actions

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remain pending, whether any pending actions were filed prior to the present action, and if so

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show cause why the case should not be dismissed for lack of jurisdiction under the prior

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exclusive jurisdiction doctrine. See, e.g., Marshall v. Marshall, 547 U.S. 293, 311 (2006).

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Plaintiff shall also identify any unresolved probate issues affecting title to the disputed mining

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claims, and, if any exist, show cause why the case should not be dismissed or stayed pending

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resolution of those issues in state court. See Markham v. Allen, 326 U.S. 490, 494 (1946).

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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Amend (ECF No. 22) is GRANTED and
the Judgment (ECF No. 18) is VACATED.

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IT IS FURTHER ORDERED that the Motion to Intervene (ECF No. 23) is DENIED.

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IT IS FURTHER ORDERED that Plaintiff shall SHOW CAUSE within fourteen (14)

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days of the entry of this Order into the electronic docket why the case should not be dismissed

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under the prior exclusive jurisdiction rule and why the case should not be dismissed or stayed

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pending the resolution of any probate issues in state court. Defendants and Petitioners may

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respond within seven (7) days thereafter.

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IT IS SO ORDERED.
Dated this 12th day January, 2014.
Datedthis 30th day ofof February, 2014.
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ROBERT C. JONES
United States District Judge

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