United States District Court, E.D. Louisiana
ST. BERNARD PARISH
LAFARGE NORTH AMERICA, INC., ET AL.
ORDER AND REASONS
the Court are a pair of motions to intervene from attorneys
Richard Seymour and Patrick Sanders. See Rec. Docs.
407, 409. Plaintiff filed an opposition to each motion.
See Rec. Docs. 408, 411. For the reasons discussed
below, IT IS ORDERED that the motions to
intervene (Rec. Docs. 407, 409) are
BACKGROUND AND PROCEDURAL HISTORY
underlying litigation involved claims between Plaintiff St.
Bernard Parish and Defendant Lafarge North America that arose
from damage caused by flooding during Hurricane Katrina.
See Rec. Doc. 1-1. The case was removed from
Louisiana state court in September 2011 and continued for
almost six years. See Rec. Docs. 1-1, 397. In May
2017, Plaintiff and Defendant reached a compromise and the
case was dismissed without prejudice; the Court retained
jurisdiction for a reasonable period of time. Rec. Doc. 397.
On July 26, 2017, Plaintiff and Defendant filed a joint
stipulation of dismissal with prejudice, pursuant to Federal
Rule of Civil Procedure 41. Rec. Doc. 398.
September 17, 2017, movant Patrick Sanders filed a motion to
intervene under Federal Rule of Civil Procedure 24 to assert
an attorney charging lien. Rec. Doc. 407. Sanders was an attorney
for Plaintiff in the underlying litigation until he withdrew
from the case in 2014, preserving a claim for attorney's
fees and expenses in the process. See Rec. Doc. 111.
On September 25, 2017, movant Richard Seymour similarly filed
a motion to intervene to assert an attorney charging
lien. Rec. Doc. 409. Seymour was a member of the
Barge Plaintiffs Subgroup Litigation Committee (Barge PSLC)
in related litigation that arose from the same flooding
during Hurricane Katrina. See Rec. Doc. 11527,
In Re: Katrina Canal Breaches Consol. Litig., No.
05-4182 and consolidated cases (E.D. La. filed Mar. 4, 2008).
Seymour withdrew from the related litigation in 2011, also
preserving a claim for attorney's fees and expenses.
See Rec. Doc. 20400, In Re: Katrina
Canal Breaches Consol. Litig., No. 05-4182 and
consolidated cases (E.D. La. filed Aug. 23, 2011).
24, 2017, Plaintiff's attorney Craig Sanders initiated an
interpleader action in New York state court to resolve
competing claims to the legal fee from resolution of the
underlying litigation. See Rec. Doc. 407-12 at 4-12.
Both movants are named as defendants in the interpleader
action. See Id. at 7-8. Seymour moved to dismiss the
action for lack of personal jurisdiction, but his motion was
denied; the New York state court concluded that it has in
rem jurisdiction. See Rec. Doc. 420. The state
court ordered that the legal fee be deposited with the state
court. See id.
Rule of Civil Procedure 24 provides two avenues for
intervention. The first is mandatory and applies when a
movant “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). The second is
permissive and applies when a movant has “a claim or
defense that shares with the main action a common question of
law or fact.” Fed.R.Civ.P. 24(b). Regardless of which
avenue a movant pursues, a motion to intervene must be
timely. See Fed. R. Civ. P. 24.
determines the timeliness of a motion to intervene by
weighing four factors:
(1) [t]he length of time during which the would-be intervenor
actually knew or reasonably should have known of its interest
in the case before it petitioned for leave to intervene; (2)
the extent of the prejudice that the existing parties to the
litigation may suffer as a result of the would-be
intervenor's failure to apply for intervention as soon as
it knew or reasonably should have known of its interest in
the case; (3) the extent of the prejudice that the would-be
intervenor may suffer if intervention is denied; and (4) the
existence of unusual circumstances militating either for or
against a determination that the application is timely.
Sommers v. Bank of America, 835 F.3d 509, 512-13
(5th Cir. 2016). Here, the factors indicate that the motions
to intervene were untimely.
assessing the first factor, “[w]hat matters is not when
[movants] knew or should have known that [their] interests
would be adversely affected, but, instead, when [they] knew
that [they] had an interest in the case.”
Sommers, 835 F.3d at 513. Movants have known about
their attorney charging liens for years-Sanders withdrew from
the underlying litigation in 2014 and Seymour withdrew from
the related litigation in 2011. Rec. Doc. 111; Rec. Doc.
20400, In Re: Katrina Canal Breaches Consol. Litig.,
No. 05-4182 and consolidated cases (E.D. La. filed Aug. 23,
2011). Movants waited to intervene until after the parties
reached settlement, the case was dismissed without prejudice,
and the parties stipulated to dismissal with prejudice. This
delay sets movants apart from attorneys who have successfully
intervened under Rule 24(a) by acting promptly after being
removed from their respective cases. See, e.g.,
Valley Ranch Dev. Co. v. FDIC, 960 F.2d 550, 556
(5th Cir. 1992); Keith v. St. George Packing Co.,
806 F.2d 525, 525-26 (5th Cir. 1986); Gaines v. Dixie
Carriers, Inc., 434 F.2d 52, 53-54 (5th Cir. 1970).
second factor turns on whether movant's delay in seeking
to intervene prejudices the existing parties. See
Stallworth v. Monsanto Co., 558 F.2d 257, 265 (5th Cir.
1977). Years of active litigation and trial preparation
elapsed between when movants learned of their interests in
the litigation and when movants sought to intervene. During
that intervening time, and especially when negotiating
settlement of the case, the existing parties operated under a
certain understanding about who had a claim to the legal fee.
Allowing intervention at this late stage would cause
duplication of these efforts, which is prejudicial to the
existing parties. See Engra, Inc. v. Gabel, 958 F.2d
643, 645 (5th Cir. 1992).
third factor also weighs against finding that the motions
were timely because movants will not suffer prejudice if they
cannot intervene. As movants repeatedly acknowledge in their
briefing, they can litigate their attorney charging liens in
other fora. See Rec. Docs. 407-15 at 9, 409-1 at 8.
In fact, an interpleader action has already been initiated in
New York state court to adjudicate competing claims to the
legal fee from the underlying litigation.See Rec. Doc.
407-12 at 4-12. That movants would prefer to resolve the