Callender et al v. American Airlines
Filing
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Memorandum Opinion and Order granting Williams's Opposed Motion to Modify the Courts Order of June 8, 2012 [Dkt. No. 52]. Williams complaint in intervention is deemed filed as of June 8, 2012. In addition, Williams must file her amended complaint in intervention bearing her counsels signature by February 4, 2013. (See order for specifics) (Ordered by Magistrate Judge David L Horan on 1/30/2013) (mcrd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
VANCE CALLENDER, ET AL.,
Plaintiffs,
V.
AMERICAN AIRLINES,
Defendant.
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No. 3:11-cv-2382-B-BN
MEMORANDUM OPINION AND ORDER
This civil action has been referred to the United States magistrate judge for
pretrial management pursuant to 28 U.S.C. § 636(b) and a standing order of reference
from the District Court. Intervenor Justine Williams has filed a Motion to Modify the
Court’s Order of June 8, 2012 [Dkt. No. 52] (the “Motion to Modify”) so as to deem her
complaint in intervention filed on the date that her motion to intervene [Dkt. No. 41]
was granted. For the reasons stated herein, the Court GRANTS Williams’s Motion to
Modify [Dkt. No. 52].
Background
This is an action by Plaintiffs Vance Callender, Brooke Callender, Anthony
Davis, Ian Hendricks, Natalie Hendricks, Nordia Henry, Ray Maylor, Tamara
Muhammad, Lorna Shelly-Williams, Terrence Williams, Angela Wates, Richard Wates,
and Joan Davis against Defendant American Airlines involving injuries to passengers
incurred during an international flight. Their action is governed by the Convention for
the Unification of Certain Rules Relating to International Carriage by Air, May 28,
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1999, ICAO Doc. 9740, reprinted in S. Treaty Doc. No. 106-45, 1999 WL 33292734
(2000) (the “Montreal Convention”).
Plaintiffs filed their complaint on September 14, 2011. On November 30, 2011,
Defendant filed a Notice of Suggestion of Bankruptcy. See Dkt. No. 23. The Court
entered an order staying the proceedings pending the lifting of the automatic stay. See
Dkt. No. 26. On May 11, 2012, United States Bankruptcy Judge Sean H. Lane ordered
the automatic stay lifted as to Williams, pursuant to a Stipulation, Agreement, and
Order between Defendant and Williams. See Dkt. No. 41-7. On June 5, 2012, Williams
filed a motion to intervene in this action, which was unopposed by Defendant.1 See Dkt.
No. 41. The Court granted Williams’s motion to intervene on June 8, 2012.2 See Dkt.
No. 43. Although Williams attached a proposed complaint as an exhibit to the motion
to intervene, the proposed complaint in intervention was unsigned. See Dkt. No. 41-8.
To date, Williams has not filed a complaint in this action.
According to Williams, Defendant informed her on November 29, 2012 that,
because Williams failed to separately electronically file her complaint as required by
the local rules within 30 days of the Bankruptcy Court’s lifting of the automatic stay,
she was now time-barred from doing so. Williams then filed a motion on December 19,
2012 asking the Court to modify its June 8, 2012 Order so as to deem her complaint
Defendant reserved its right to seek dismissal of Williams’s claims on “various grounds.” Dkt.
No. 41 at 9.
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United States Magistrate Judge Jeff Kaplan entered the prior order granting Williams’s motion
to intervene. Effective November 21, 2012, this civil case was reassigned to the undersigned United
States Magistrate Judge David L. Horan pursuant to Special Order 3-290.
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in intervention filed on June 8, 2012 and asking the Court for leave to file an amended
complaint bearing her counsel’s signature. Defendant filed a Response in Opposition
to the Motion to Modify, see Dkt. Nos. 53 & 54, and Williams filed a reply, see Dkt. No.
55. This matter is ripe for determination.
Legal Standards and Analysis
Pursuant to the ECF Administrative Procedures Manual § III.C (the “ECF
Rules”), “[i]f [a party] is granted leave to file a document, [it] must electronically file
the document even if it was previously attached as an exhibit to a motion.”
Section 108(c) of the Bankruptcy Code provides a 30-day period after the lifting
of the automatic stay in which a claimant may assert a claim that is otherwise barred
by the statute of limitations. 11 U.S.C. § 108(c). This 30-day period expired for
Williams’s claim on June 11, 2012.3
There is no dispute that – in contravention of the ECF Rules – Williams failed
to separately file her proposed complaint in intervention, other than as an attachment
to her motion to intervene. There is also no dispute that the statute of limitations for
Williams’s claim has run. However, Williams argues that her motion to intervene was
made within the requisite 30-day period and that, in the Fifth Circuit, the filing of the
motion for intervention, and not the later approval of the motion and actual filing of
Defendant states that it “disputes [Section 108(c)]’s applicability to Montreal Convention
claims” and asserts that Williams’s claim has been extinguished under the Montreal Convention. Dkt.
No. 54 at 5. Defendant further suggests that it will move to dismiss on this issue if the Court deems
Williams’s complaint in intervention to be filed. Id. at 5 n.5. Because the issue of whether Williams’s
claim has been extinguished under the Montreal Convention is not now before the Court, the Court takes
no position on this issue.
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the complaint, determines the commencement of the action for purposes of the statute
of limitations. The Court agrees.
In United States ex rel. Canion v. Randall & Blake, 817 F.2d 1188 (5th Cir.
1987), a subcontractor brought a Miller Act action against a surety and general
contractor, alleging that it had not been paid in full. The subcontractor’s supplier
subsequently moved to intervene and filed a complaint against the same defendants.
Although the supplier filed its motion to intervene within the one-year statute of
limitations period, the district court did not grant it until fourteen months later, well
after the statute of limitations period had expired. On appeal, the defendants argued
that the supplier’s complaint was untimely because it was filed after the statute of
limitations period. Id. at 1192. The Fifth Circuit held that “the filing of the motion for
intervention, and not the later approval of the motion and actual filing of the
complaint, determines the commencement of the action for purposes of the statute of
limitations.” Id.
Although Defendant correctly points out that, in Randall & Blake, the district
court, rather than the party moving to intervene, was responsible for the untimeliness
of the complaint, the Fifth Circuit did not limit its holding to such situations, and no
other controlling case law suggests such a limitation.
Moreover, the Court has discretion to correct clerical errors when necessary to
prevent a miscarriage of justice, Coppedge v. K.B.I., Inc., No. 9:05-cv-162, 2007 WL
1791717, *4 (E.D.Tex. June 19, 2007), and the enforcement of clerical requirements set
forth by local rules should not affect a party’s substantive rights, McClellon v. Lone
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Star Gas Go., 66 F.3d 98,101 n.1 (5th Cir. 1995). The Court also has the power to
modify interlocutory orders at any time prior to final judgment. See Bon Air Hotel, Inc.
v. Time, Inc., 426 F.2d 858, 862 (5th Cir. 1970); Braxton v. Virginia Folding Box Co.,
72 F.R.D. 124, 127 (E.D. Va. 1976) (entering an order nunc pro tunc so that plaintiff’s
complaint would be timely, where it had previously filed a timely motion to intervene).
Here, Williams’s error in failing to file her complaint in intervention was both
clerical and inadvertent in nature. See, e.g., Coppedge v. K.B.I., Inc., 2007 WL 1791717
at *4 (failure to separately re-file amended complaint, which was submitted as an
exhibit to motion for leave to amend, was mere clerical error). Indeed, Williams’s
motion to intervene was unopposed by Defendant, Dkt. 41, and the motion to intervene
was granted, Dkt. No. 43.
Finally, Defendant argues that deeming Williams’s complaint filed as of June
8, 2012 will unfairly prejudice it and harm its interests. Defendant cites three ways in
which it will be prejudiced should the complaint in intervention be deemed filed;
however, none is persuasive. First, although Defendant cites the fact that Williams has
not served initial disclosures as an example of Williams’s failure to take part in the
proceedings, see Dkt. No. 54 at 12, Williams demonstrated in her reply brief that initial
disclosures were in fact served on Defendant, Dkt. 55-1, albeit prior to the filing of the
motion to intervene. Second, Defendant notes that Williams has not designated any
expert witnesses, and the deadline for doing so has now passed. See Dkt. No. 54 at 12.
However, Defendant has other remedies available to protect its interest, such as
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seeking to preclude Williams from offering expert testimony for failing to comply with
discovery obligations. (By making this observation, the Court is not stating any opinion
on how it would rule on such a request.) Finally, Defendant states that the parties
have stipulated to March 15, 2013 as the deadline to complete discovery, and
Defendant has not had an opportunity to conduct discovery on Williams’s claims. The
Court observes that Williams and Plaintiffs are represented by the same counsel, and
that Defendant can seek to extend the discovery deadline as to Williams’s claims,
either by stipulation or application to the Court. Moreover, as Defendant chose to wait
until November 29, 2012 to inform Williams that it did not consider her to be a party
to the case, Defendant’s lack of opportunity appears to be, at least in part, of its own
making.
Conclusion
Accordingly, Williams’s Opposed Motion to Modify the Court’s Order of June 8,
2012 [Dkt. No. 52] is GRANTED. William’s complaint in intervention is deemed filed
as of June 8, 2012. In addition, Williams must file her amended complaint in
intervention bearing her counsel’s signature by February 4, 2013.
SO ORDERED.
DATED: January 30, 2013
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DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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