United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
a civil action for declaratory relief and money damages filed
by plaintiff The McDonnel Group, LCC ("McDonnel")
arising out of defendants Starr Surplus Lines Insurance
Company and Lexington Insurance Company's (collectively,
"Insurers") alleged breach of their contractual
obligations to provide insurance coverage and/or payment for
all losses suffered by McDonnel under two builder's risk
insurance policies. Movant Mechanical Construction Company
LLC ("Mechanical") has filed a Motion for Leave to
File Intervention, Record Doc. No. 128, in which it seeks to
intervene as plaintiff as a matter of right pursuant to
Fed.R.Civ.P. 24(a) or, alternatively, as a permissive matter
under Fed.R.Civ.P. 24(b). Mechanical bases its motion on its
alleged status as an additional insured under the
builder's risk policies. Record Doc. No. 128-5.
March 8, 2019, Mechanical filed its own separate lawsuit in
this court against Insurers, asserting claims identical to
those included in its complaint of intervention. Record Doc.
No. 1, Mechanical Construction Company LLC v. Starr
Surplus Lines Insurance Company et al., Civ. Action No.
19-2227 "H" (2) (E.D. La. Mar. 8, 2019). On March
18, 2019, Judge Milazzo issued an order consolidating
Mechanical's separately filed lawsuit and another lawsuit
filed by a different plaintiff with the above-captioned
matter. Record Doc. No. 139. On that same day, Judge Milazzo
extended the remaining pretrial deadlines in this matter and
set a status conference on April 2, 2019, to discuss the
effect of the consolidation order. Record Doc. No. 140.
intervention as of right, Rule 24(a) states the following, in
On timely motion, the court must permit anyone to intervene
who . . . 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
person is entitled to intervene as of right if the following
requirements are met: (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) (quoting
Cajun Elect. Power Coop. v. Gulf States Utils.,
Inc., 940 F.2d 117, 119 (5th Cir. 1991)); Ross v.
Marshall, 426 F.3d 745, 753 (5th Cir. 2005). “In
the absence of any of these elements, intervention
as of right must be denied.” Graham v.
Evangeline Parish Sch. Bd., 132 Fed.Appx. 507,
511 (5th Cir. 2005) (citing United States v.
Franklin Parish Sch. Bd., 47 F.3d 755, 758 (5th
Cir. 1995)) (emphasis added).
timeliness, Mechanical seeks to intervene more than one year
after this lawsuit was filed and at a time when much
discovery has been completed. The Fifth Circuit has held that
an intervenor of right filed a timely motion to intervene
when it "sought intervention before discovery
progressed and because it did not seek to delay or reconsider
phases of the litigation that had already concluded . . .
." Wal-Mart Stores, Inc. v. Texas Alcoholic Beverage
Commission, 834 F.3d 562, 565-66 (5th Cir. 2016)
(emphasis added). However, a motion to intervene "filed
prior to entry of judgment favors timeliness, as most of
[Fifth Circuit] case law rejecting petitions for intervention
as untimely concern motions filed after judgment was entered
in the litigation." Edwards v. City of Houston,
78 F.3d 983, 1005 (5th Cir. 1996) Although discovery has
progressed in the instant matter, no judgment determining the
merits of the case has been issued. Furthermore, Mechanical
has agreed to move forward with all existing deadlines.
Record Doc. No. 128-1 at p. 6. I find that Mechanical's
motion is timely.
the remaining factors, I find that Mechanical has a direct,
substantial, legally protectable interest in the proceedings.
However, now that Mechanical's separately filed lawsuit
has been consolidated with the related matters, intervention
is no longer necessary to protect that interest and would
merely be redundant and duplicative. As a consolidated
plaintiff in this matter, Mechanical will suffer no
impairment or impediment to its ability to protect and
represent its interests, especially because Mechanical's
complaint in these consolidated matters includes the same
allegations its seeks to bring in its complaint of
intervention. For these reasons, I find that Mechanical is
not entitled to intervene as of right.
permissive intervention, Fed.R.Civ.P. 24(b) states the
following, in pertinent part: "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." By consolidating Mechanical's separate
lawsuit with this one, this court implicitly recognized the
"common question of law or fact" between the two
lawsuits that is required for consolidation under
Fed.R.Civ.P. 42(a). As discussed above, however, permissive
intervention is unnecessary, redundant and duplicative
because the same claims Mechanical seeks to allege in its
complaint of intervention have already been consolidated in
this matter. For these reasons, I find that Mechanical is not
entitled to permissive intervention.
forgoing reasons, movant Mechanical's motion for leave to
intervene in this matter as of ...