United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
Motion for Leave to Intervene of Tina Maurice, Angelica
Douglas, Quian Williams and Courtney Miller, as
administrators of the estates of their minor children, is
pending before me. Record Doc. No. 47. Plaintiff, Certain
Underwriters at Lloyds, London (“Underwriters”),
filed a timely opposition memorandum. Record Doc. No. 49.
Having considered the record, the applicable law and the
written submissions of the parties, IT IS ORDERED that the
motion is DENIED.
March 24, 2015, the proposed intervenors filed a petition in
the Civil District Court for the Parish of Orleans, asserting
wrongful death and survival actions seeking to recover
monetary damages against the same defendants who are also
defendants in the captioned declaratory judgment action. The
proposed intervenors “are the mothers and
administrators of the estates of seven minor children whose
father, Gregory Journee, was killed” in a shooting in
the Spice Bar & Grill on March 29, 2015. Record Doc. No.
47-1 at p. 1.
13, 2016, Underwriters filed the captioned complaint in this
court seeking a declaratory judgment that its policy of
insurance issued to defendants provided no coverage for the
claims asserted by the proposed intervenors as plaintiffs in
their state court action. On October 31, 2016, this court
entered both a default judgment against defendants and an
order granting Underwriters' unopposed motion for summary
judgment. Record Doc. Nos. 40, 41. Both this court's
order and the judgment unequivocally held that Underwriters
“is entitled to judgment as a matter of law that the
policy does not afford coverage for the claims in the
[proposed intervenors' state court] underlying lawsuit
and that the plaintiff [Underwriters] owes no duty to defend
or indemnify the defendants.” Record Doc. No. 40 at p.
2; accord Record Doc. No. 41 at p. 2. The
court's order and judgment were based on clear and
unambiguous assault and battery and firearms exclusions
contained in the subject commercial general liability policy
issued by Underwriters to defendants.
proposed intervenors filed this motion on December 14, 2016,
two weeks after the entry of judgment. Citing a single Fifth
Circuit precedent, Ranger Ins. Co. v. United Housing of
N.M., Inc., 488 F.2d 682 (5th Cir. 1974), the proposed
intervenors argue that they are entitled to intervene of
right and because they are “indispensable
parties” to this declaratory action concerning coverage
under a contract of insurance to which they are not parties.
Record Doc. No. 47-1 at pp. 2-4. Thus, two separate
procedural rules - Rule 24 addressing intervention and Rule
19 concerning indispensable parties - apply to this motion.
intervention of right, Fed.R.Civ.P. 24(a) states:
On timely motion, the court must permit anyone to intervene
who: (1) is given an unconditional right to intervene by a
federal statute; or (2) claims an interest relating to the
property or transaction that is the subject of the action,
and is so situated that disposing of the action may as a
practical matter impair or impede the movant's ability to
protect its interest, unless existing parties adequately
represent that interest.
Civ. P. 24(a). Therefore, a party is entitled to an
intervention of right if (1) the motion to intervene is
timely; (2) the potential intervenor asserts a direct,
substantial and legally protectable 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 intervenor's ability to protect its interest;
and (4) the existing parties do not adequately represent the
potential intervenor's interest. In re Lease
Oil Antitrust Litig., 570 F.3d 244, 247, 250 (5th Cir.
2009) (quotation omitted); accord Entergy Gulf States
La., L.L.C. v. U.S. EPA, 817 F.3d 198, 203 (5th Cir.
2016); Ross v. Marshall, 426 F.3d 745, 753 (5th Cir.
2005); Heaton v. Monogram Credit Card Bank,
297 F.3d 416, 422 (5th Cir. 2002).
Although failure to satisfy any one element precludes the
applicant's right to intervene, we have noted that the
inquiry under subsection (a)(2) is a flexible one, which
focuses on the particular facts and circumstances surrounding
each application, and concluded that intervention of right
must be measured by a practical rather than
technical yardstick. Intervention should generally be allowed
where no one would be hurt and greater justice could be
Ross, 426 F.3d at 753 (quotations and citations
omitted) (emphasis added); accord Entergy Gulf
States, 817 F.3d at 203.
permissive intervention, Fed.R.Civ.P. 24(b) provides in
General. On timely motion, the court may permit ...