United States District Court, W.D. Louisiana, Lafayette Division
B. WHITEHURST UNITED STATES MAGISTRATE JUDGE
the Court is a Motion To Intervene pursuant to Federal Rule
of Civil Procedure 24(a), and alternatively Rule 24(b), filed
by Barbara Lamont and Ludwig Gelobter (“Proposed
Intervenors”) [Rec. Doc. 23], a Memorandum in
Opposition filed by BellSouth Telecommunications, LLC
(“BellSouth”) [Rec. Doc. 29] and Proposed
Intervenors' Reply thereto [Rec. Doc. 35]; as well as a
Motion To Extend Discovery Deadlines And For Leave To File
Amended Counterclaim filed by New Orleans Teleport, Inc.
d/b/a CallsPlus (“CallsPlus”), [Rec. Doc. 24], a
Memorandum in Opposition filed by BellSouth
Telecommunications, LLC [Rec. Doc. 28] and CallsPlus'
Reply thereto [Rec. Doc. 36].
record of this case provides that on November 22, 2016,
BellSouth Telecommunications, LLC filed suit against
CallsPlus. R.1. CallsPlus answered the complaint and
filed a counterclaim against Bellsouth on March 7, 2017.
R. 9. On March 10, 2017, the Court issued a
Scheduling Order which set the deadline for Joinder of
Parties and Amendment of Pleadings on April 4, 2017, and the
deadline for Discovery on August 8, 2017. R. 10. In
the Rule 26(f) Report, filed on May 22, 2017, the parties
agreed to extend the discovery deadline to August 20, 2017,
and all depositions would be completed by December 1, 2017.
R. 20, p. 5. On August 16, 2017, the Court granted a
motion filed by CallsPlus, R. 21, to withdraw their
original counsel and substitute current counsel of record.
R. 22. On that same date, Proposed Intervenors filed
this Motion to Intervene, R. 23, and CallsPlus filed
a Motion for Leave to File Amended Complaint and Extend
Discovery, R. 24. The Court will address the Motion
to Intervene first.
Law and Analysis
Intervenors are the principal owners and chief managers of
CallsPlus who contend “have suffered damages in their
personal capacity caused by the unjust, unfair, and unlawful
charges and practices of BellSouth.” R. 23.
They allege that 47 U.S.C. § 207 of the Communications
Act of 1934, 47 U.S.C. § 201, et seq, gives them
“the unconditional right” to intervene in this
action under Rule 24(a)(1). Alternatively, they maintain they
should be allowed to intervene pursuant to Rule 24(b) because
their claims share common questions of law and fact with
BellSouth's Complaint and CallsPlus' Counterclaim.
BellSouth opposes intervention under both 24(a) and (b).
Rule of Civil Procedure 24 allows persons not already parties
to intervene in an existing case. See Fed.R.Civ.P. 24.
Interventions may be either “of right” under Rule
24(a) or “permissive” under Rule 24(b). The
Federal Rules of Civil Procedure specify two situations in
which a person is permitted to intervene as of right: first,
when a federal statute grants an unconditional right to
intervene, Fed.R.Civ.P. 24(a)(1); and second, when a person
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,
Fed.R.Civ.P. 24(a)(2). Sommers v. Bank of America,
N.A., 835 F.3d 509, 512 (5th Cir. 2016). As
noted above, Proposed Intervenors contend their right to
intervene under Rule 24(a)(1) flows from 42 U.S.C. § 207
of the Communications Act.
Intervention Of Right
their Motion, Proposed Intervenors provide no support-either
statutory language or jurisprudence-for their allegation that
47 U.S.C. § 207 gives them “the right to
intervene.” In its Opposition, BellSouth argues that
the Communications Act does not include any language related
to a right to intervene. R. 29. While it provides no
jurisprudential support for this position (presumably because
it could locate none), BellSouth argues that even statutes
that do confer an absolute right to intervene are rarely
given an unconditional statutory right to intervene under
Fifth Circuit law. The Court as also failed to locate
any jurisprudence, Fifth Circuit or otherwise, in
which a Rule 24(a) intervention was permitted under §
207, or any section of the Communications Act. Proposed
Intervenors cannot prove intervention of right.
Court finds that as Proposed Intervenors have failed to
demonstrate an “unconditional right” under a
federal statute to intervene on the basis of Rule 24(a)(1),
it must turn to the alternative argument for permissive
intervention under Rule 24(b). While Proposed Intervenors do
not specify a section under Rule 24(b), the Court finds that
Section (b)(1)(B) applies in this case. Rule 24(b)(1)(B)
provides that on “timely motion”, the Court may
permit anyone to intervene who “has a claim or defense
that shares with the main action a common question of law or
fact.” Fed.R.Civ.P. 24(b). A court possesses the
discretion to determine whether to permit permissive
intervention and must “consider whether the
intervention will unduly delay or prejudice the adjudication
of the original parties' rights.” Id. at
wish to join with the current plaintiff, CallsPlus, in
asserting their own personal claims as sole shareholders and
officers of CallsPlus which are in common with the current
claims against BellSouth. BellSouth objects to the
intervention as untimely and prejudicial to
BellSouth. Permissive intervention is, however,
“wholly discretionary” with the district court
even when there is a common question of law or fact, or the
requirements of Rule 24(b) are otherwise satisfied.
Kneeland v. National Collegiate Athletic Ass'n,
806 F.2d 1285, 1289 (5th Cir. 1987). Considerations include
whether the intervenors' interests are adequately
represented by other parties and whether intervention will
unduly delay the proceedings or prejudice existing parties.
determine whether a motion to intervene is timely, courts
must consider the totality of the circumstances. U.S. v.
Covington County School Dist., 499 F.3d 464, 465
(5th Cir. 2007). In Stallworth v. Monsanto
Co., the Fifth Circuit stated four factors to consider
in determining whether a motion to intervene is timely: (1)
how long the potential intervenors knew or reasonably should
have known of their stake in the case into which they seek to
intervene; (2) the prejudice, if any, the existing
parties may suffer because the potential intervenors failed
to intervene when they knew or reasonably should have known
of their stake in that case; (3) the prejudice, if any, the
potential intervenors may suffer if the court does not let
them intervene; and (4) any unusual circumstances that weigh
in favor of or against a finding of timeliness. 558 F.2d 257,
264-66 (5th Cir.1977); Sierra Club v. Espy, 18 F.3d
1202, 1205 (5th Cir. 1994). “These factors are not a
formula for determining timeliness; instead, it should be
determined based on all the circumstances.” Effjohn
Int'l Cruise Holdings, Inc. v. A&L Sales, Inc.,
346 F.3d 552, 561 (5th Cir. 2003). The requirement of
timeliness is not a tool of retribution to punish the tardy
would-be intervenor, but rather a guard against prejudicing
the original parties by the failure to apply sooner.
McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1074
(5th Cir.1970). Federal courts should allow intervention
“where no one would be hurt and greater justice could
be attained.” Id.
first asserts that Proposed Intervenors' Complaint is
untimely because it was filed nine months after
BellSouth's Complaint was filed and after the deadline to
amend pleadings. Proposed Intervenors argue that because they
were not parties to this action, the Scheduling Order does
not apply to them. They further argue that they filed their
Proposed Complaint within the two (2) year statute of
limitations under the Communications Act. Proposed
Intervenors maintain that they promptly moved for
intervention once their interest in the case became known to
them. Citing the fourth factor, unusual circumstances,
Movants represent that, contrary to BellSouth's assertion
that they have been aware of this litigation and their
private causes of action since its inception, they did not
have “actual knowledge of their standing to assert
claims under the Communications Act until the change of
counsel.” R. 35, p. 6. As corroborated by the
record, the instant ...