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Payne v. Tri-State Careflight, LLC

United States District Court, D. New Mexico

September 30, 2017

TRI-STATE CAREFLIGHT, LLC, and BLAKE A. STAMPER, individually, Defendants.

          Christopher M. Moody Repps D. Stanford Alice Kilborn Moody & Warner, P.C. Albuquerque, New Mexico Attorneys for the Proposed Intervenors

          Charles J. Vigil Jeffrey L. Lowry Melanie B. Stambaugh Rodey, Dickason, Sloan, Akin & Robb, P.A. Albuquerque, New Mexico Attorneys for the Defendants


         THIS MATTER comes before the Court on: (i) the Opposed Fed.R.Civ.P. 24(b) Motion and Supporting Memorandum to Intervene as Parties Plaintiff and Class Representatives, filed November 29, 2016 (Doc. 151)(“Motion to Intervene”); and (ii) the Opposed Fed.R.Civ.P. 24(B) Supplemental Motion and Supporting Memorandum to Intervene as Parties Plaintiffs and Class Representatives, filed June 27, 2017 (Doc. 166)(“Supp. Motion to Intervene”). The Court held a hearing on August 2, 2017. The primary issues are: (i) whether the Court has jurisdiction over the Proposed Intervenors'[1] claims given that all of the Named Plaintiffs[2] have settled and the Court has entered Final Judgment in the case; (ii) whether the Proposed Intervenors claims are moot in light of the Named Plaintiffs' settlement agreement; (iii) whether the Court's Final Judgment Order dismissing the Named Plaintiffs' claims a few days before the Proposed Intervenors filed their Motion to Intervene means that the Named Plaintiffs and/or the Proposed Intervenors must now seek relief from judgment pursuant to rule 60(b) of the Federal Rules of Civil Procedure; and (iv) whether the Motion to Intervene is timely pursuant to rule 24(b) of the Federal Rules of Civil Procedure despite being filed after the Court entered a Final Judgment. The Court will grant the Motion to Intervene and the Supp. Motion to Intervene.

         First, the Court concludes that it has jurisdiction over the sixty-nine Proposed Intervenors pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d)(4)(A) (“CAFA”). Second, the Named Plaintiffs' settlement agreement did not render the Proposed Intervenors claims moot, because their personal stake in the class -- and, therefore, an Article III case or controversy -- inhered at the action's beginning. Third, relief from the Final Judgment is not necessary for the Proposed Intervenors to intervene. Fourth, the Motion to Intervene was timely, even though the Court had already entered a Final Judgment, because intervention will not unduly prejudice the Defendants.


         Defendant Tri-State Careflight, LLC operates an air ambulance service in New Mexico, Arizona, Colorado, and Nevada. See Proposed Third Amended Complaint Representative and Class Action Complaint for Damages for Violations of New Mexico Minimum Wage Act and New Mexico Common Law ¶ 11, at 4, filed July 19, 2017 (Doc. 169-1)(“Proposed Complaint”). Tri-State CareFlight operates a fleet of aircraft, which it staffs with pilots and trained medical personnel. See Proposed Complaint ¶ 9 at 3. Tri-State CareFlight and Defendant Blake Stamper are or were the employers of all of the Proposed Intervenors within the definition of the New Mexico Minimum Wage Act, N.M. Stat. Ann. §§ 50-4-1 through 50-4-33 (“NMMWA”). Proposed Complaint ¶ 7, at 3. Tri-State CareFlight employs or employed the following people -- now seeking to intervene -- as pilots, nurses, or paramedics: Shailendra Basnet, Kristy Bell, Deborah Berest, Daniel Bergman, William Dallas Bundrant, Jr., Rocky H. Burrows, II, Chase Carter, Brenda Casarez, Michael Castro, Kara Cervantes, Thomas Cislo, David Daniels, Adam Doyle, Darren Een, Toby Eicher, Walter Fabian, Harold Joseph Fisher, Christina Fleeman, Luke Forslund, Salustiano Fragoso, Rehannon Gonzales, Kristen Grado, Courtney Guerra, Darrin Hamilton, Shane Herron, Alexander Howell, Danielle Irvin, Allen Jacobs, Erin Johnson, Alex Jones, Donald Luke Keenan, Daniel Kuhler, Simon Lucero, Raphael Mahaim, Nathan Maplesden, Cindy D. Maxwell, Jennifer Mazzanti, Bethany McCandless, Ron McDearmid, Dan Meehan, Kevin Napp, James O'Connor, Kathy Onsurez-Wilson, Eric Parker, Jason Perry, Amanda Petersen, Brent Place, Jimmy Ronald Primm, Jr., Philip Qubain, Paul Ratigan, Joseph Root, Daron Ruckman, Frederic Ruebush, Jennifer Salaverry, Paul Serino, Christian Speakman, Ian Stephens, Daniel St. Peters, Usvaldo R. Trujillo, Paul Vacula, Jennifer Valdez, Graciela Villalobos, Eric Vogt, Greg Walsh, Tyler Wilkins, Virginia Williams, Terry Zacharias, and Michael Zulaski. See Supp. Motion to Intervene at 3-8 (listing the names and professional titles of each Proposed Intervenor).


         This case is a wage-and-hour dispute. See Proposed Complaint ¶ 1, at 2. The Proposed Intervenors seek to recover: (i) unpaid overtime compensation under the NMMWA; and (ii) other unpaid compensation on a theory of unjust enrichment. See Proposed Complaint ¶¶ 95-128, at 12-18.

         The Original Plaintiffs, William D. Payne and Nicole Payne, filed their case in state court on September 11, 2014. See Payne v. Tri-State Careflight, LLC, D-101-CV-2014-02048, 1st Jud. Dist. Ct., Cty. of Santa Fe, State of N.M., filed September 11, 2014 (Montes, J.). Tri-State CareFlight and Stamper removed the case to federal court on November 17, 2014. See Notice of Removal, filed November 17, 2014 (Doc. 1)(“Notice of Removal”). The Defendants invoked diversity jurisdiction, representing that there is complete diversity of citizenship between the Original Plaintiffs and the Defendants. See Notice of Removal ¶ 4, at 2.

         On August 24, 2015, W. Payne and N. Payne moved to amend their complaint to: (i) eliminate a claim asserted for compensation for certain travel time; and (ii) add an additional Plaintiff -- Leslie B. Benson. See Plaintiffs' Amended Opposed Motion for Leave to File First Amended Complaint, filed August 24, 2015 (Doc. 44)(“First Motion to Amend”). On September 4, 2015, W. Payne and N. Payne filed Plaintiffs' Motion for and Brief in Support of Class Certification, filed September 4, 2015 (Doc. 48)(“First Motion for Class Cert.”).[3] The Court held a hearing on the First Motion to Amend on October 28, 2015. See Clerk's Minutes, filed October 28, 2015 (Doc. 67)(“Oct. 28th Clerk's Minutes”); Notice of Motion Hearing, filed October 16, 2015 (Doc. 64). At the October 28, 2015, hearing, the Court granted the First Motion to Amend. See Oct. 28th Clerk's Minutes at 1; Order at 1, filed March 14, 2016 (Doc. 112). The same day as the hearing, W. Payne and N. Payne filed their Amended Complaint, in which W. Payne, N. Payne, and Benson asserted one count against the Defendants for their violation of the NMMWA.[4] See Amended Complaint ¶ 9-36, at 1-5.

         In November, 2015, the three Original Plaintiffs -- W. Payne, N. Payne, and Benson --reached resolutions on their respective claims. See Intervenor MOO at 47. On November 19, 2015, the Paynes reached a settlement with the Defendants in which the Defendants agreed to provide them with full relief under the NMMWA. See Intervenor MOO at 47. Benson, meanwhile, signed a global release in an administrative proceeding before the Occupational Safety and Health Administration (“OSHA”) on or around November 19, 2015. Intervenor MOO at 42.

         With W. Payne, N. Payne, and Benson's claims resolved, the Named Plaintiffs -- a new set of Plaintiffs comprising Bastian, Heard, Oldham, Welch, and Fernandez-Quezada -- sought to replace the Original Plaintiffs, by intervening pursuant to rule 24 of the Federal Rules of Civil Procedure, bearing similar wage grievances against the Defendants. See Opposed Motion to Intervene as Parties Plaintiff and Class Representatives, filed December 15, 2015 (Doc. 73) (“First Intervention Motion”). The Named Plaintiffs asserted:

[N]one of the currently named Plaintiffs will be able to pursue this matter either individually or on behalf of the putative class members who were deprived of overtime pay pursuant to Defendants' uniform and unlawful overtime policies applicable to flight nurses, flight paramedics and pilots. Intervenors seek to pick up the prosecution of this lawsuit where the current Plaintiffs are soon to depart.

         First Intervention Motion at 2.

         As the motion to intervene was pending, the Defendants moved the Court, pursuant to rule 56 of the Federal Rules of Civil Procedure, to enter summary judgment in their favor and dismiss all claims in the Second Amended Complaint in their entirety and with prejudice. See Defendants Tri-State Careflight, LLC, and Blake A. Samper's Motion for Summary Judgment and Memorandum Brief in Support at 1, filed March 1, 2016 (Doc. 110)(“MSJ”). The Defendants argued that federal law preempts the Named Plaintiffs' state-law claim for the alleged NMMWA violation and the state-law claim for unjust enrichment. See MSJ at 1. The Named Plaintiffs opposed the Defendants Motion for Summary Judgment, and also filed their Motion to Exclude Consideration of New Law or New Argument Raised in Defendants' Reply to the Motion for Summary Judgment or, in the Alternative, to Permit Plaintiff to File a Surreply, filed on May 2, 2016 (Doc. 123)(“Motion to Exclude”), as a result of the Defendants' MSJ.

         On August 12, 2016, the Court, pursuant to rule 24(b) of the Federal Rules of Civil Procedure, granted the Named Plaintiffs' First Intervention Motion, permitting Bastian, Heard, Oldham, Welch, and Fernandez-Quezada to intervene as Plaintiffs. See Intervenor MOO at 1-2. The Court determined, among other things, that the apparent resolution of W. Payne, N. Payne, and Benson's claims “did not render this case moot under Article III because the personal stake of the indivisible class may inhere prior to a definitive ruling on class certification.” Intervenor MOO at 41 (citing Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1244-47 (10th Cir. 2011)).

         In October, 2016, the Court denied the Defendants' MSJ, concluding that Congress “has not preempted the field of labor regulation for railroad and airline workers, and the present dispute does not involve the interpretation of a collective bargaining agreement.” Memorandum Opinion and Order at 2, filed October 25, 2016 (Doc. 147)(“MSJ MOO”). In the same ruling, the Court also determined that “the Defendants raised a new issue of law in their reply in support of their Motion for Summary Judgment, to which the Named Plaintiffs may reply with a surreply should they deem it appropriate.” MSJ MOO at 2.

         On November 17, 2016, the Defendants informed the Court that all five Named Plaintiffs -- Bastian, Heard, Oldham, Welch, and Fernandez-Quezada -- had accepted the Defendants' Offer of Judgment pursuant to rule 68 of the Federal Rules of Civil Procedure. See Notice of Acceptance of Rule 68 Offer of Judgment, filed November 17, 2016 (Doc. 149) (“Acceptance Notice”). According to the Defendants' filings, the Defendants made an Offer of Judgment to the Named Plaintiffs on November 2, 2016. See Certificate of Service, filed November 2, 2016 (Doc. 148)(stating that the Defendants “e-mailed to Christopher M. Moody and Repps D. Stanford, ” the Named Plaintiffs' attorneys, an Offer of Judgment on November 2, 2016). In the Offer of Judgment, the Defendants offered to pay each Named Plaintiff a certain amount of money, and to pay attorneys' fees and costs “actually and reasonably incurred . . . up to the date of this offer.” Offer of Judgment, filed November 17, 2016 (Doc. 149-1). The Offer of Judgment concluded by stating, “By accepting this Offer of Judgment, Plaintiffs agree to the entry of the attached form of final judgment.” Offer of Judgment. On November 16, 2016, the Plaintiffs' counsel Mr. Moody sent an email to the Defendants' counsel, Jeffrey Lowry and Charles Vigil, stating that “Plaintiffs accept your offer of judgment.” Email from Mr. Moody to Mr. Vigil and Mr. Lowry (sent November 16, 2016), filed November 17, 2016 (Doc. 149-1). The next day, on November 17, 2016, the Defendants filed their Acceptance Notice to the Court; the Acceptance Notice stated:

Defendants hereby notify the Court that Plaintiffs have accepted Defendants' Rule 68 Offer of Judgment. A copy of the accepted Offer of Judgment is attached as Exhibit A, a copy of the Form of Judgment incorporated by reference into the Offer is attached as Exhibit B, and Plaintiff's [sic] acceptance of the offer is attached as Exhibit C.

         Acceptance Notice at 1. Six days later, the Court took the Defendants' proposed final judgment and entered it with no changes. See Final Judgment, passim, filed November 23, 2016 (Doc. 150).

         1. The Motion to Intervene.

         Despite the Final Judgment, the Proposed Intervenors, just six days later, filed a motion to replenish the Plaintiffs' roster once again by way of another rule 24(b) intervention. See Opposed Fed.R.Civ.P. 24(B) Motion and Supporting Memorandum to Intervene as Parties Plaintiff and Class Representatives, filed on Nov. 29, 2016 (Doc. 151)(“Motion to Intervene”). The Proposed Intervenors first assert that the motion is timely, arguing that whether an intervention is timely depends on the full context of the case; the analysis does not depend on any “‘absolute measure of timeliness, '” nor is the timeliness requirement a “‘tool of retribution to punish the tardy would-be intervenor.'” See Motion to Intervene at 5 (quoting Utah Ass'n of Ctys. v. Clinton, 255 F.3d 1249, 1250 (10th Cir. 2001)). An intervention is untimely, the Proposed Intervenors contend, when it comes near the end of litigation, and when “allowing a party to intervene would cause undue prejudice and delay in the proceeding.” Motion to Intervene at 5 (citing United States v. Washington, 86 F.3d 1499, 1505 (9th Cir. 1996); Associated Builders v. Herman, 166 F.3d 1248, 1257 (D.C. Cir. 1999)). The Proposed Intervenors argue that, although two years have elapsed in this litigation, “the instant motion arrives within two weeks after the currently named Plaintiffs accepted Defendants' Rule 68 Offers of Judgment. Prior to that time, there was no need for putative class members to intervene because their interests were already adequately protected.” Motion to Intervene at 6.

         The Proposed Intervenors also argue that their motion to intervene meets rule 24(b)'s other requirements, i.e., the Proposed Intervenors share identical legal and factual questions as the Named Plaintiffs, and intervention “will not result in undue delay or prejudice, ” nor “adversely affect the rights of Defendants in any respect.” Motion to Intervene at 6. The Proposed Intervenors assert:

Representative/class claims are already asserted against Defendants, and have been since this lawsuit was first filed. The requested intervention serves only to add new class representatives, all of whom are already members of the putative collective action and/or Rule 23 classes. The claims to be litigated and the company's policies upon which Plaintiffs are suing remain the same. The only material element that will change is the identities of the class representatives.

Motion to Intervene at 6-7.

         The Proposed Intervenors also note that the Court previously concluded in this case that intervention would not cause prejudice or undue delay, [5] and assert that the same reasoning should apply here, too. See Motion to Intervene at 7 (citing Intervenor MOO at 47-48).

         The Proposed Intervenors next assert that when class representatives' individual claims become moot, it may be appropriate to allow the class' attorneys to replace the mooted representative with a new one, either through formal intervention or simply identifying the new representative in a class certification order. See Motion to Intervene at 7 (citing Manual for Complex Litigation § 21.26 Appointment of the Class Representatives at 277 (4th ed. 2004)). The Proposed Intervenors also quote a district court in Mississippi that summarizes the United States Court of Appeals for the Fifth Circuit's view that allowing mooted class members to be replaced may be in the best interest of justice and judicial economy. See Motion to Intervene at 8 (quoting Larry James Oldsmobile-Pontiac-GMC Truck Co. v. Gen. Motors Corp., 175 F.R.D. 234, 239-40 (N.D. Miss. 1997)(Davidson, J.)(“[T]he Fifth Circuit has noted that the trial court should consider whether it serves the interests of justice or judicial economy to postpone dismissal of the action for a specified period in which members of that subclass could become plaintiffs by amendment to the Complaint or by intervention and thereby save the subclass action.”)).

         2. The Response to the Motion to Intervene.

         A few weeks later, the Defendants filed Defendants' Response to Fed.R.Civ.P. 24(b) Motion and Supporting Memorandum to Intervene as Parties Plaintiff and Class Representatives, filed December 16, 2016 (Doc. 153)(“Intervene Response”). The Defendants argue that, once a court enters a final judgment, a “very strict standard” applies to determining whether a permissive intervention attempt is timely, Intervene Response at 2, and that a “strong showing” must be made to overcome a court's “considerable reluctance” to allow post-judgment intervention, Intervene Response at 2 (quoting Meredith v. Schreiner Transp., Inc., 814 F.Supp. 1001, 1003 (D. Kan. 1993)(Belot, J.)(quoting 7C C. Wright & A. Miller, Federal Practice and Procedure § 1916, at 561 (3d ed. 2007))).

         The Defendants then argue that the Proposed Intervenors' Motion to Intervene is untimely, because, for one, “there is no longer any lawsuit pending in which to intervene” given that “named Plaintiffs have not merely accepted a settlement offer; they agreed to the entry of a final judgment.” Intervene Response at 3. Additionally, the Defendants argue that even if the lawsuit cannot be said to have concluded, it certainly must be close to a conclusion, and “all parties including the movants agree that intervention is properly denied when a lawsuit is near its end stage.” Intervene Response at 4 (citing Motion to Intervene at 5). The Defendants also note that the lawsuit has been pending for more than two years. See Intervene Response at 4.

         Finally, the Defendants argue that it does not matter that the Proposed Intervenors seek to intervene, not just as party Plaintiffs, but as class members, because the Court never certified a class. See Intervene Response at 4. The Defendants assert that, “[i]n fact, the possibility that the Court would deny class certification almost certainly prompted the named class members to accept Defendants' Rule 68 Offer of Judgment.” Intervene Response at 4 (emphasis in original). In any case, the Defendants assert, “none of the procedural requirements or substantive concerns that apply to certified class actions applies here.” Intervene Response at 4. In a footnote, the Defendants also question how the Court could maintain supplemental diversity jurisdiction over two proposed intervenors who, like both Defendants, are Arizona citizens. See Intervene Response at 4 n.1 (citing Motion to Intervene at 2-3). The Defendants acknowledge that the Class Action Fairness Act, 28 U.S.C. § 1332(d)(4)(A) (“CAFA”), may allow for such jurisdiction, but note that Proposed Intervenors have not made that argument. Intervene Response at 4 n.1.

         3. The Reply to the Defendants' Response.

         Two weeks later, the Proposed Intervenors responded with their Reply to Motion to Intervene as Parties Plaintiff and Class Representatives, filed on December 28, 2016 (Doc. 154) (“Intervene Reply”). The Proposed Intervenors first argue that the case is not moot. See Intervene Reply at 2-5. The Proposed Intervenors contend that any heightened standards for post-judgment interventions are not applicable here, because Proposed Intervenors accepted a rule 68 offer while a motion for class certification was pending. See Intervene Reply at 3. The appropriate question to ask in this situation, the Proposed Intervenors contend, is whether “acceptance of the Rule 68 offers that dispose of all of the representatives' claims moot out the interests of the putative class members in the case such that intervention is not permissible.” Intervene Reply at 3. The Proposed Intervenors assert that, in the United States Court of Appeals for the Tenth Circuit, a judgment offer to one class member does not moot the claims of the class. See Intervene Reply at 4 (citing Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1240 (10th Cir. 2011)(“Lucero”). The Proposed Intervenors additionally assert that the United States Courts of Appeals for the Third, Fifth, Sixth, and Seventh Circuits have similarly concluded that judgment offers do not moot class actions when a certification motion is pending. Intervene Reply at 4-5 (citing Lucero (referencing cases from the Third, Fifth, and Seventh Circuits), and Carroll v. United Compucred Collections, Inc. 399 F.3d 620, 625 (6th Cir. 2005)).

         Moreover, the Tenth Circuit recognized a “‘nascent interest' that attaches to the proposed class upon the filing of a class action complaint.” Intervene Reply at 4 (quoting Lucero at 1249). The Proposed Intervenors also note that when class action plaintiffs have their claims dismissed before class certification, courts will typically “disregard the jurisdictional void” that is subsequently created and allow new plaintiffs to replace the dismissed ones rather than dismiss the entire action. Intervene Reply at 5 (quoting Phillips v. Ford Motor Co., 435 F.3d 785, 787 (7th Cir. 2006)). The Proposed Intervenors assert that they are likewise seeking only to “fill the void.” Intervene Reply at 5.

         Next, the Proposed Intervenors dispute that their motion is untimely. See Intervene Reply at 5-6. They contend that although the proceeding is a few years old, it is not near its final stages; there has not been, for example, a class certification ruling or any pre-trial motions on liability. See Intervene Reply at 6. Judging timeliness by the mere passage of time, the Proposed Intervenors assert, is inappropriate, and that by the Defendants' line of reasoning, “if a defendant tendered a settlement offer one (1) day after the filing of a complaint and the plaintiff then accepted it, the case would be at the ‘over and done' stage and intervention could never occur.” Intervene Reply at 6.

         In any case, the Proposed Intervenors contend that “the only reason the case has been pending for over two (2) years is because every time the existing plaintiffs move for class certification, Defendants tender settlement offers . . . and the next wave of Intervenors must pick up the lawsuit.” Intervene Reply at 6. The Original Plaintiffs and the Named Plaintiffs, meanwhile, “have acted timely at all times material.” Intervene Reply at 6.

         In a footnote, the Proposed Intervenors also dispute the Defendants' contention that the possibility that the Court would deny class certification led the Named Plaintiffs to accept the Defendants' judgment offer, arguing that “any denial of class certification would have no impact whatsoever on either the viability or the merits of Plaintiffs' individual claims.” Intervene Reply at 3 n.2 (emphasis in original). Rather, the Proposed Intervenors assert that the Named Plaintiffs settled because the “Defendants' Rule 68 offers provided 100% of the recovery that Plaintiffs sought and that they ever could be awarded at trial.” Intervene Reply at 3 n.2.

         The Proposed Intervenors also assert that they did not address the Court's jurisdiction over the two Arizona citizens among the proposed intervenors in their Motion to Intervene or proposed Third Amended Complaint, because the Proposed Intervenors thought that the Court's jurisdiction under CAFA would be clear enough that “there would be no need for the parties to duel over [this] jurisdictional windmill.” Intervene Reply at 7. With the topic now raised, however, the Proposed Intervenors dutifully proffer their reasons for CAFA-based jurisdiction. See Intervene Reply at 7-9. First, the Proposed Intervenors assert that their proposed Third Amended Complaint, “as well as the history of this lawsuit, should satisfy the Court . . . that this is a class action lawsuit and at least one member of the proposed class is a citizen of a state (i.e. New Mexico) different from any defendant (i.e. Arizona).” Intervene Reply at 8.

         Second, the Proposed Intervenors assert that the class members' claims, once aggregated, will exceed the requisite five million dollars by multiplying the total number of proposed class -- “approximately 279” -- by a reasonable estimate of an average award. Intervene Reply at 9. The Proposed Intervenors note that the Defendants have already agreed to pay -- pursuant to their rule 68 judgment offer -- the five Named Plaintiffs a total of $229, 552.19, plus reasonable attorneys' fees, which the Proposed Intervenors conservatively peg at $150, 000.00. See Intervene Reply at 9. Altogether, that amount comes to $379, 552.20 for five individuals, or $75, 910.44 each. See Intervene Reply at 9. If each class member is awarded that amount, the total award would be more than twenty million dollars; if each class members wins only $25, 000 on average, the total would come to almost seven million dollars. See Intervene Reply at 9. In any case, the Proposed Intervenors add that “[t]he common fund theory on fees increases the sought after amount even more.” Intervene Reply at 9.

         Third, the Proposed Intervenors note that the Court has discretion to decline CAFA jurisdiction when greater than one-third but less than two-thirds of proposed class members and defendants are citizens of the state in which the action was originally filed. Intervene Reply at 9 (citing 28 U.S.C. § 1332(d)(3)). The Proposed Intervenors assert that “[g]iven that the class members largely lived and worked in New Mexico and based on the contact information provided by Defendants in discovery, Plaintiffs are unlikely to satisfy even the first condition.” Intervene reply at 9-10. The Proposed Intervenors add that the Court “should trust that counsel scoured CAFA and the interpretive case law to locate any legitimate basis to invoke one of the exceptions to return to state court.” Intervene Reply at 10.

         4. The Supplemental Motion to Intervene.

         Six months later, the Proposed Intervenors submitted an Opposed Fed.R.Civ.P. 24(b) the Supp. Motion to Intervene, intending to add fifty-two more names to the list of individuals seeking to intervene.[6] Supp. Motion to Intervene at 2-9. The Proposed Intervenors assure the Court that the Supplemental Motion to Intervene seeks only to add names and not offer additional arguments, and so opts to “not recapitulate in detail the arguments that were set forth” in earlier briefings. Supp. Motion to Intervene at 9. Instead, the Proposed Intervenors briefly summarize their earlier arguments, asserting once again that the intervention request is not untimely; the proceeding is not near its end stages; these new Proposed Intervenors face the same questions of fact and law as the Named Plaintiffs and proposed intervenors; intervention “will not serve to delay or prejudice the adjudication of the original parties' rights”; the “substantial weight of authority holds that the doctrine of mootness does not, and should not, serve as a legal obstacle to the Intervenors' efforts to join this lawsuit”; and that there is “no reason to force intervenors to start over from scratch.” Supp. Motion to Intervene at 9-10.

         5. The Response to the Supplemental Motion to Intervene.

         The Defendants then submitted the Defendants' Response to Plaintiffs' Opposed Fed.R.Civ.P. 24(b) Supplemental Motion and Supporting Memorandum to Intervene as Parties Plaintiffs and Class Representatives, filed July 17, 2017 (Doc. 168)(“Supp. Intervene Response”). The Defendants begin by arguing that there is “no provision in the Federal Rules of Civil Procedure for filing ‘supplemental' motions” and that the supplemental motion is a “new motion, filed months after final judgment was entered.” Supp. Intervene Response at 1. Next, the Defendants assert that Proposed Intervenors' Supplemental Motion to Intervene “fails for the same . . . reasons that Defendants noted in their response” to the Proposed Intervenors' earlier Motion to Intervene, namely that courts are generally reluctant to allow interventions after a final judgment and that the Proposed Intervenors have failed to establish that the motion to intervene is timely. Supp. Intervene Response at 2. The Defendants then contend that the Proposed Intervenors have cited authorities that do not support granting the Proposed Intervenors' post-Final Judgment intervention request: in the Defendants' view, Lucero merely considers whether an unaccepted judgment offer moots other class members' claims, and Lusardi v. Xerox Corp., 975 F.2d 964 (3rd Cir. 1992)(“Lusardi”) affirmed a denial of intervention. See Supp. Intervene Response at 3-4. The Defendants also argue that a closed case can only be reopened through rule 60, and point out that the Proposed Intervenors have not attempted a rule 60-based argument. See Supp. Intervene Response at 3.

         The Defendants further assert that “it is now abundantly clear that this lawsuit is not appropriate to proceed as a class action, ” because the “sheer number of proposed intervenors disproves Plaintiffs' contention, advanced in an earlier motion to certify a class, that a class action lawsuit would be ‘superior' to other . . . methods . . . as required by Rule 23(b)(3).” Supp. Intervene Response at 4. Additionally, the Defendants contend that “it is neither feasible nor reasonable for dozens of individuals to serve as class ‘representatives'” given the requirements for class representatives to be, for example, sufficiently informed about the litigation to be directing it. Supp. Intervene Response at 5. The Defendants conclude by arguing that “[t]he reality . . . is that the would-be plaintiffs have abandoned the class action procedure in all but name” and that “it is clear that interested individuals can should pursue their claims in an ordinary, non-class action lawsuit.” Supp. Intervene Response at 5-6.

         6. The Reply to the Defendants' Response.

         In their Reply to Fed.R.Civ.P. 24(b) Supplemental Motion, filed July 19, 2017 (Doc. 169)(“Supp. Intervene Reply”), the Proposed Intervenors address the Defendants' arguments and also submit one more intervenor for good measure.[7] Supp. Intervene Reply at 1 n.1. The Proposed Intervenors first address whether their “supplemental” motion is permitted by the Federal Rules of Civil Procedure, arguing that there is no rule prohibiting such a filing, and, in any case, states that they are “more than amenable to substitut[e] the word ‘second' for ‘supplemental'” if need be. Supp. Intervene Reply at 1-2. The Proposed Intervenors then assert, once again, that the mere passage of time should not itself determine whether a motion is timely. See Supp. Intervene Reply at 2-3.

         Next, the Proposed Intervenors touch upon the rule 60 issue, characterizing the Defendants' invocation of rule 60 as “inexplicable.” Supp. Motion Reply. The Proposed Intervenors assert that rule 60 is “entirely irrelevant, ” because: (i) the “[i]ntervenors are not seeking, and do not need to seek, relief from any final judgment”; and (ii) they lack standing, in any case, to seek such relief from a final judgment arising from the judgment offer's “knowing and voluntary acceptance . . . by the recent plaintiffs on their individual legal claims.” Supp. Intervene Reply at 3.

         The Proposed Intervenors again argue that the final judgment has not rendered the lawsuit moot, pointing to the Court's first -- and pre-Final Judgment -- intervention ruling wherein the Court determined that one party plaintiff's settlement “did not render this case moot under Article III because the personal stake of the indivisible class may inhere prior to a definitive ruling on class certification.” Supp. Motion Reply at 4 (quoting Intervenor MOO at 41). The Proposed Intervenors contend that the “same rationale applies in the present situation, as the ‘nascent interest' of the class members/Intervenors . . . remains.” Supp. Intervene Reply at 4.

         The Proposed Intervenors dispute the Defendants' assertion that Lusardi supports denying intervention in this case, noting, for instance, that the Tenth Circuit cited Lusardi as standing for the proposition that a judgment offer will not moot a class-action claim. Supp. Intervene Reply at 5 (citing Lucero, 639 F.3d at 1250). The Proposed Intervenors assert that Lusardi demonstrates how the usual mootness rules may not apply in class actions when a class-certification motion is pending, i.e., that

while a plaintiff may settle his individual claim with a defendant, that would not deprive the Court of subject matter jurisdiction or render moot a plaintiff's right, for example, “to argue a certification motion that was filed before his claims expired and which the district court did not have a reasonable opportunity to decide.”

Supp. Intervene Reply at 5 (quoting Lusardi, 975 F.2d at 975). In this case, the Proposed Intervenors contend that, “[w]hen the Plaintiffs . . . recently settled, there existed a pending, and undecided, motion for class certification/collective action filed at a time when the Plaintiffs had claims ‘in issue' and prior to their acceptance of the Rule 68 offers.” Supp. Intervene Reply at 7. Consequently, the Proposed Intervenors conclude, “[t]here remains a live case or controversy in this matter into which the Intervenors may intervene.” Supp. Intervene Reply at 7.

         The Proposed Intervenors also dispute the Defendants' contention that the large number of intervenors demonstrates that a class-action lawsuit is not appropriate. See Supp. Intervene Reply at 8. The Proposed Intervenors argue that the elements required for permissive interventions “are separate from, and do not implicate, the adequacy and superiority elements” required for class certification. Supp. Intervene Reply at 8. The Proposed Intervenors also insist that they have “no intention of moving to certify all 69 Intervenors as class representatives, ” and instead will “designate a fixed and manageable number of proposed class representatives to carry the Rule 23 torch.” Supp. Intervene Reply at 9.

         7. The Hearing.

         The Court held a hearing on August 2, 2017. See Transcript of Hearing (taken August 2, 2017)(“Tr.”).[8] The Court began by asking the Proposed Intervenors whether a rule 59 or rule 60 motion would be necessary before the Court could consider the intervention question. See Tr. at 4:2-5 (Court). The Proposed Intervenors replied that in the cases from the Third, Fifth, Sixth, and Seventh Circuits cited in the Proposed Intervenors' briefings do indicate that a rule 59 or 60 motion is needed to “resurrect the class action lawsuit” following a dismissal “which would, presumably, have led to some kind of judgment or closing of the case.” Tr. at 4:24-5:11 (Stanford). The Proposed Intervenors added that “I didn't see in any of the cases any discussion where there was any distinction between a final judgment or a stipulation and dismissal for purposes of resurrecting the case and getting around the mootness doctrine.” Tr. at 5:11-12 (Stanford). The Court asked the Proposed Intervenors whether they had “found any case in which there was a final judgment and they then allowed intervention without discussing what to do with that final judgment, ” and the Proposed Intervenors replied that they had not, but that Lusardi -- which, according to Proposed Intervenors, featured a stipulation and a dismissal of claims -- “is probably the closest.” Tr. at 5:15-6:10 (Court, Stanford). The Court stated that it seems there's “nothing unique about a class action or a collective action of some sort that doesn't require use to look at 59 and 60, ” and the Proposed Intervenors responded that “all I can do is reiterate [that] I haven't seen any discussion in the context of the special rules that exist in the doctrine of mootness with regard to dismissal and final judgment in that context.” Tr. at 7:16-22 (Court, Stanford).

         The Court then addressed the fact that the Proposed Intervenors' attorneys were also the Named Plaintiffs' attorneys, and asked why counsel would facilitate a Final Judgment entry if they knew they “were about to have an intervention with a larger group of Plaintiffs.” Tr. at 8:8-10 (Court). The Proposed Intervenors replied that, after considering the Court's previous intervention ruling as well as cases from other circuits, they “didn't see any . . . meaningful distinction between [an] entry of final judgment and [a] stipulation and dismissal in a situation where there was a pending motion for class certification.” Tr. at 8:11-19 (Stanford). The Proposed Intervenors then stated that “the intervenors are going to have a hard time getting through the doors of a rule 59 and rule 60.” Tr. at 9:1-3 (Stanford). The Proposed Intervenors added that, should the Court insist on requiring a rule 59 or 60 motion before getting to the motion to intervene, “we'll probably just go another path and avoid that issue altogether, if that's the principal concern for the court.” Tr. at 10:13-15 (Stanford).

         The Court then asked the Defendants whether the Proposed Intervenors may intervene despite the final judgment, and the Defendants responded that “we think . . . the Court should not allow intervention even without respect to the rule 59 or rule 60 issue.” Tr. at 13:2-9 (Court, Lowry). The Defendants added that in Lusardi, “the District Court denied a Motion to Intervene and the Third Circuit affirmed that denial, so we think that [the case] stands for the proposition that post-judgment intervention should not be allowed.” Tr. at 13:9-14 (Lowry). The Court then asked why the Defendants would not “just stipulate to setting aside the judgment and allowing the motion to intervene” given that the proposed intervenors would likely commence separate litigation against Defendants if they are not permitted to intervene, and the Defendants replied that “we think when the final judgment is entered in a case, regardless of whether the class certification issue has been decided, the tolling stops [and] the statute starts running again.” Tr. at 14:14-22 (Court, Lowry). The Defendants stated, however, that, “[a]s a practical matter, it's not going to make a big difference.” Tr. at 14:23-24 (Lowry).

         The Proposed Intervenors then returned to its arguments based on Lusardi, asserting that neither the District Court nor the Third Circuit in that case got “wrapped up with the fact that there was dismissal of the lawsuit” because, in the Proposed Intervenors' view, a “dismissal is [a] dismissal if it's done under the auspices of rule 41 or 42 or a final judgement -- the case is effectively over.” Tr. at 15:21-16:2 (Stanford). What mattered in Lusardi, the Proposed Intervenors insisted, was that, “at the time that the plaintiffs settled their case, there was no pending motion for class certification.” Tr. at 16:4-6 (Stanford). Summarizing the cases cited in their various briefings, the Proposed Intervenors stated:

They were all predicated on the idea from Lucero that there is a nascent interest, that there is a life that still exists in the case with regard to the putative class members. . . . [T]here wasn't any discussion or difference of opinion over whether or not the plaintiffs in each of these cases had their individual claims mooted out either by dismissal. And, in this case, why would final judgment be any different? There was still a life that existed over and above the activities . . . between the plaintiffs and the defendants.

Tr. at 16:16-25 (Stanford).


         Rule 24(b) provides for permissive intervention:

(1) In General. On timely motion, the court may permit anyone to ...

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