United States District Court, D. New Mexico
WILLIAM D. PAYNE; NICOLE PAYNE; LESLIE B. BENSON; KEITH BASTIAN; JACQUELINE FERNANDEZ-QUEZADA; CASON N. HEARD; GREGORY OLDHAM AND SHERRY K. WELCH, on behalf of themselves and all others similarly situated, Plaintiffs,
TRI-STATE CAREFLIGHT, LLC and BLAKE A. STAMPER, Defendants. KRISTY BELL; DEBORAH BEREST; DANIEL BERGMAN; WILLIAM DALLAS BUNDRANT, JR; ROCKY H. BURROWS, II; CHASE CARTER; BRENDA CASAREZ; KARA CERVANTES; THOMAS CISLO; DAVID DANIELS; ADAM DOYLE; DARREN EEN; TOBY EICHER; LON ENOS; WALTER FABIAN; HAROLD JOSEPH FISHER; CHRISTINA FLEEMAN; LUKE FORSLUND; SALUSTIANO FRAGOSO; REHANNON GONZALES; KRISTEN GRADO; COURTNEY GUERRA; DARRIN HAMILTON; ALEXANDER HOWELL; DANIELLE IRVIN; ALLEN JACOBS; ALEX JONES; DONALD LUKE KEENAN; DANIEL KUHLER; SIMON LUCERO; RAPHAEL MAHAIM; NATHAN MAPLESDEN; ORLANDO MARQUEZ; CINDY D. MAXWELL; JENNIFER MAZZANTI; BETHANY MCCANDLESS; WILLIAM J. MCCONNELL; 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; LAUREN SALAZAR; PAUL SERINO; CHRISTIAN SPEAKMAN; DANIEL ST. PETERS; IAN STEPHENS; USVALDO R. TRUJILLO; PAUL VACULA; GRACIELA VILLALOBOS; ERIC VOGT; GREG WALSH; TYLER WILKINS; VIRGINIA WILLIAMS; SARA YURKOVICH; TERRY ZACHARIAS and MICHAEL ZULASKI, Plaintiffs,
TRI-STATE CAREFLIGHT, LLC and BLAKE A. STAMPER, Defendants.
Christopher M. Moody Alice Kilborn Repps D. Stanford Moody
& Stanford, P.C. Albuquerque, New Mexico Attorneys for
the Plaintiffs and Intervenors
Charles J. Vigil Melanie B. Stambaugh Jeffrey L. Lowry Rodey,
Dickason, Sloan, Akin & Robb, P.A. Albuquerque, New
Mexico Attorneys for the Defendants
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Plaintiffs'
Motion to Address Issue of Fed.R.Civ.P. 60 for Intervenors to
Proceed with Third Amended Complaint or, Alternatively
Fed.R.Civ.P. 60(B) Motion to Obtain Relief from Final
Judgment, filed August 3, 2018 (Doc.
200)(“Motion”). The Court held a hearing on
September 26, 2018. See Clerk's Minutes at 1,
filed September 26, 2018 (Doc. 215). The primary issues are:
(i) whether the Basnet Intervenors,  who intervened in
this proposed class action after the Court entered the Final
Judgment, filed November 23, 2016 (Doc. 150), for the former
named plaintiffs -- the Bastian Plaintiffs -- and before
the Court certified a class, can prosecute the Third Amended
Representative and Class Action Complaint for Damages for
Violations of New Mexico Minimum Wage Act and New Mexico
Common Law, filed July 19, 2017 (Doc. 177)(“Third
Amended Complaint”), without seeking relief from the
Final Judgment under rule 60 of the Federal Rules of Civil
Procedure; (ii) whether, if the Basnet Intervenors must seek
relief under rule 60, they can obtain relief under rule
60(b)(5), because the Defendants Tri-State Careflight, LLC
and Blake Stamper satisfied the Final Judgment for the
Bastian Plaintiffs; and (iii) whether, if the Basnet
Intervenors must seek relief under rule 60, they can obtain
relief under 60(b)(6), because the Final Judgment for the
Bastian Plaintiffs and the consequent possibility that the
Basnet Intervenors may not receive American Pipe and
Construction Company v. Utah, 414 U.S. 538
tolling on all claims are extraordinary
circumstances. The Court denies the Motion. The Court
concludes: (i) the Basnet Intervenors must seek relief from
the Final Judgment under rule 60 before filing the Amended
Complaint, because the Basnet Intervenors' putative class
interest is not an exception to finality; (ii) the Basnet
Intervenors cannot satisfy rule 60(b)(5), because rule
60(b)(5) does not provide relief against finality when a
defendant has satisfied a judgment; and (iii) the Basnet
Intervenors cannot satisfy rule 60(b)(6), because the Basnet
Intervenors could have earlier intervened, and the Final
Judgment and the possibility that American Pipe
tolling will not apply do not rise to extraordinary
circumstances. Accordingly, the Basnet Intervenors cannot
prosecute the Third Amended Complaint.
Court takes its facts from the Third Amended Complaint. The
Court provides these facts for background. It does not adopt
them as the truth, and it recognizes that these facts are
largely the Basnet Intervenors' version of events.
Careflight operates an air ambulance service in New Mexico,
Arizona, Colorado, and Nevada. See Third Amended
Complaint ¶ 11, at 4. Tri-State CareFlight employs
flight paramedics, flight nurses, and pilots at each of its
New Mexico location. See Third Amended Complaint
¶ 81, at 9. The Defendants are or were all the Basnet
Intervenors' employers within the definition provided in
the New Mexico Minimum Wage Act, N.M. Stat. Ann. §§
50-4-1 through -33 (“NMMWA”). See Third
Amended Complaint ¶ 6, at 3. Tri-State CareFlight
employs or employed the following people 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 Third Amended Complaint
¶¶ 12-80, at 4-9.
case has a long and complicated procedural history. The Court
recited this procedural history in its Memorandum Opinion and
Order, 327 F.R.D. 433, filed June 21, 2018 (Doc.
198)(“Consolidation MOO”). The Court incorporates
that recitation throughout the procedural background that the
Court provides below. The Court also includes footnotes from
the Consolidation MOO.
case is a wage-and-hour dispute. See Third Amended
Complaint ¶ 1, at 2. The Plaintiffs seek to recover: (i)
unpaid overtime compensation under the NMMWA; and (ii) other
unpaid compensation on a theory of unjust enrichment.
See Third Amended Complaint ¶¶ 95-128, at
In September, 2014, William D. Payne and Nicole Payne,
“on behalf of themselves and all others similarly
situated, ” filed their original complaint against
Tri-State CareFlight and Stamper. Representative Action
Complaint for Damages for Violation of New Mexico Minimum
Wage Act and Unjust Enrichment at 1, Payne v. Tri-State
Careflight, LLC, D-101-CV-2014-02048 (First Judicial
District, County of Santa Fe, State of New Mexico)(Montes,
J.), filed November 17, 2014 in federal court (Doc.
1-1)(“Original Complaint”). 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”). They based removal
on the Court's diversity jurisdiction. See
Notice of Removal ¶ 4, at 2.
On August 24, 2015, W. Payne and N. Payne moved to amend the
Original Complaint to: (i) eliminate a claim for certain
uncompensated travel time from the Original Complaint; and
(ii) add an additional named 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.”). 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 an 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). Later that day, W. Payne and N. Payne
filed their First Amended Representative Action Complaint for
Damages for Violation of New Mexico Minimum Wage Act, filed
October 28, 2015 (Doc. 68)(“Amended
By November, 2015, W. Payne, N. Payne, and Benson resolved
their individual claims against the Defendants. 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, i.e., all the relief they
requested in the Amended Complaint. See Memorandum
Opinion and Order at 47, 2016 WL 9738302, at *25, filed
August 12, 2016 (Doc. 138)(“Intervenor MOO”).
Benson, meanwhile, signed a global release of his claims
against Tri-State CareFlight and Stamper on October 22, 2015.
See Settlement Agreement and General Release at 1-3
(dated October 22, 2015), filed December 9, 2015 (Doc. 71-1).
With W. Payne, N. Payne, and Benson's claims resolved, a
new set of named Plaintiffs -- Keith Bastian, Cason N. Heard,
Gregory Oldham, Sherry K. Welch, and Jacqueline
Fernandez-Quezada -- sought to keep the case alive by
intervening pursuant to rule 24 of the Federal Rules of Civil
Procedure. See Opposed Motion to Intervene as
Parties Plaintiff and Class Representatives at 1, filed
December 15, 2015 (Doc. 73)(“First Intervention
Motion”). In the First Intervention Motion, the
[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.
Intervention Motion at 2.
As the First Intervention Motion 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 to 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' MSJ, 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 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 . . . 2016 WL 6396214, at *1 . . ., filed
October 25, 2016 (Doc. 147)(“MSJ MOO”). In the
same ruling, the Court also determines 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 2, 2016, the Defendants offered, under rule 68 of
the Federal Rules of Civil Procedure, to pay the [Bastian
Plaintiffs] a specific amount of money plus their pre-offer
“[a]ttorneys' fees and costs actually and
reasonably incurred.” Offer of Judgement at 1 (dated
November 2, 2016), filed November 17, 2016 (Doc.
149-1)(“Offer of Judgment”). The Offer of
Judgment states: “By accepting this Offer of Judgment,
Plaintiffs agree to the entry of the attached form of final
judgment.” Offer of Judgment at 2. The Defendants
informed the Court, on November 17, 2016, that [the Bastian
Plaintiffs] accepted the Defendants' rule 68 offer.
See Notice of Acceptance of Rule 68 Offer of
Judgment at 1, filed November 17, 2016 (Doc.
149)(“Acceptance Notice”). See also
Email from Chris Moody, to Charles Vigil at 1 (dated November
16, 2016), filed November 17, 2016 (Doc.
149-1)(“Plaintiffs accept your offer of
judgment.”). The Acceptance Notice states:
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.
Notice at 1. Six days later, the Court took the
Defendants' proposed final judgment and entered it with
no changes. See Final Judgment at 1, filed November
23, 2016 (Doc. 150).
On November 29, 2016, seventeen people sought to intervene in
the case as named Plaintiffs. See 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”). On June 27,
2017, fifty-two more people sought to intervene as named
Plaintiffs into the case. See 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”).
On August 3, 2017, while the Court considered the Motion to
Intervene and the Supp. Motion to Intervene, “a number
of the proposed Plaintiffs/Intervenors filed a separate, but
essentially duplicative” complaint in the United States
District Court for the District of New Mexico, apparently to
cover their bases vis-à-vis tolling concerns. Motion
to Consolidate at 1. See Bell v. Tri-State CareFlight,
LLC, No. CIV 17-0796 (“Bell”). Tri-State
CareFlight and Stamper moved to transfer that case, Bell
v. Tri-State CareFlight, LLC, No. CIV 17-0796
(“Bell”), from the Honorable Kenneth J. Gonzales,
United States District Judge for the District of New Mexico,
to the Court. See Bell, Defendants' Motion to
Transfer Related Case to Honorable James O. Browning, filed
September 26, 2017 (Doc. 11)(“Motion to
Transfer”). In the Motion to Transfer, the Defendants
state: “Pursuant to Rule 42(a)(3) of the Federal Rules
of Civil Procedure, Defendants Tri-State CareFlight, LLC and
Blake A. Stamper respectfully move the Court to transfer the
above-captioned case to the Honorable James O.
Browning.” Motion to Transfer at 1.
On September 30, 2017, the Court granted the Motion to
Intervene and the Supp. Motion to Intervene, which added
sixty-[eight] current and former Tri-State CareFlight
employees as named Plaintiffs. See Memorandum
Opinion and Order at 60, 322 F.R.D. 647, 683, filed September
30, 2017 (Doc. 175)(“Intervention MOO”). In the
Intervention MOO, the Court states:
. . . . 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. . . .
Intervention MOO at 2, 322 F.R.D. at 654.
MOO at 2-7, 322 F.R.D. at 436-38. In reaching this
conclusion, the Court relies on Lucero v. Bureau of
Collection Recovery, Inc., 639 F.3d at 1249. The Court
explains: “Lucero holds that, when a class
certification is pending, ‘any Article III interest a
class may or may not have in a case is or is not present from
its inception' and that ‘the personal stake of the
class inheres prior to certification.'”
Intervention MOO at 53, 322 F.R.D. at 679 (quoting Lucero
v. Bureau of Collection Recovery, Inc., 639
F.3d at 1249). The Court also concludes:
Third, relief from the Final Judgment is not necessary for
the Proposed Intervenors to intervene. . . .
Intervention MOO at 2, 322 F.R.D. at 654. The Court also
determines, in the Intervention MOO, that a nonparty may, in
certain circumstances, intervene into a case in which a final
judgment has been entered. See Intervention MOO at
55-56, 322 F.R.D. at 680. The Court states:
[T]he Proposed Intervenors need not disturb the Named
Plaintiffs' Final Judgment in order to intervene; rather,
they must first intervene before they can seek relief from
Because intervention is a precondition for a nonparty to make
a rule 60(b) motion, not the other way around, the Court
concludes that the Named Plaintiffs' Final Judgment
presents no insurmountable obstacle to the Proposed
Intervenors' Motion to Intervene.
MOO at 55-56, 322 F.R.D. at 680.
MOO at 7-8, 327 F.R.D. at 438-39. The Court rests its
decision on United Airlines, Inc. v.
McDonald, 432 U.S. 385 (1977), wherein the Supreme Court
of the United States of America “ruled that a nonparty
could intervene after a final judgment to appeal the denial
of class certification when the intervenor acted promptly
upon learning that the named plaintiffs . . . did not intend
to appeal.” Intervention MOO at 55, 322 F.R.D. at 680
(citing United Airlines, Inc. v. McDonald, 432 U.S.
Court did not make a determination regarding whether the
intervening Plaintiffs could proceed, notwithstanding the
Court's Final Judgment, without obtaining relief from
that Final Judgment via a motion under rule 60(b) of the
Federal Rules of Civil Procedure. The Court also expressed
The Court arrives at this conclusion with reservations.
First, the Court is skeptical that most motions to intervene
after final judgment are timely, particularly here given that
the Proposed Intervenors' attorneys also represent the
Named Plaintiffs and therefore had a direct hand in reaching
the settlement and entering the Final Judgment. The Proposed
Intervenors, therefore, could not have been taken by surprise
and presumably were capable of making their motion before the
Final Judgment was entered. Second, the Court is not eager to
deprive the Defendants of the benefit of that bargain: unlike
the first settlements with the Original Plaintiffs, the
Defendants took the rule 68 route with the Named Plaintiffs
and deliberately negotiated for the Final Judgment.
See Offer of Judgment at 2 (“By accepting this
Offer of Judgment, Plaintiffs agree to the entry of the
attached form of final judgment.”). The Defendants have
not expressly stated why they bargained for the Final
Judgment, but it could be precisely for this moment. One
possibility is that, having unsuccessfully opposed the first
motion to intervene, they figured a Final Judgment might make
it harder for future intervenors. Another possibility is that
the Defendants may want to do some judge-shopping: they may
prefer to shut the case down before the Court and defend
against the remaining claims that are undoubtedly on the way
before another judge in a separate case. A third possibility
is that they may want to force their opponents to file
another case and pay another filing fee. Finally, and most
likely, the Defendants may want to take advantage of any
applicable statute of limitations and cut down on damages.
See Tr. at 15:8-10 (Lowry)(“[W]e believe there
are some people in the proposed class, assuming this proceeds
as a class action, whose claims would be barred.”). By
treating the Final Judgment like any other judgment -- i.e.,
not presuming that a post-final judgment intervention motion
is untimely, or not requiring intervenors undo the final
judgment via rule 60(b) before seeking intervention -- the
Defendants may be deprived of the benefit of their bargain.
That outcome looks a lot like prejudice. Also, simply
ignoring rule 60(b)'s plain language, as the court does
in United Airlines v. McDonald, seems misguided;
rules should be construed like statutes, and under the rules
of statutory construction, a statute's plain language
should not be overlooked. See Lamie v. U.S. Trustee,
540 U.S. 526, 534 (2004)(“It is well established that
when the statute's language is plain, the sole function
of the courts -- at least where the disposition required by
the text is not absurd -- is to enforce it according to its
With respect to prejudice, the Court shares [the misgivings
that the Honorable Lewis F. Powell Jr., former Associate
Justice of the Supreme Court] expressed in his dissent in
United Airlines v. McDonald, 432 U.S. 385, 399-400
(Powell, J., dissenting). The dissent asserted that allowing
post-final judgment intervention in that case unduly
prejudices the defendant, arguing that, because only named
plaintiffs may appeal a certification denial, and the
settlement ended the named plaintiffs' ability to appeal
the denial, then no one remained to make the appeal -- not
even an unnamed member of the putative class. See
432 U.S at 399-400 (Powell, J., dissenting). Thus, the
dissent asserts, “[h]aving achieved a settlement of the
case, [the defendant] was prejudiced by [the
intervenor's] attempt to reopen the case.” 432 U.S.
at 399 (Powell, J., dissenting). The majority, meanwhile,
stated that the defendant “can hardly contend that its
ability to litigate the issue was unfairly prejudiced simply
because an appeal on behalf of putative class members was
brought by one of their own, rather than by one of the
original named plaintiffs.” 432 U.S. at 394-95 (Powell,
The Court also shares the dissent's skepticism of the
majority's “casual treatment of the
prejudice” to a putative class action defendant who
settles with all named plaintiffs. 432 U.S. at 399 (Powell,
J., dissenting). Not only does the majority's approach
risk prejudice to a defendant, but it does so by disregarding
the judicial system's interest in settlements and
finality, see 432 U.S. at 401 (Powell, J.,
dissenting)(“The Court also ignores the important
‘principle that (s)ettlement agreements are highly
favored in the law and will be upheld whenever possible
because they are a means of amicably resolving doubts . . .
and preventing lawsuits.'” (quoting Pearson v.
Ecological Sci. Corp., 522 F.2d 171, 176 (5th Cir.
1975))), and undermining public policy behind statute of
limitations, see 432 U.S. 385, 400 (Powell, J.,
dissenting)(“Considerations of policy militate strongly
against the result reached by the Court. Our cases reflect a
long tradition of respect for statutes of limitations and the
values they serve.”).
MOO at 59-60 n.18, 322 F.R.D. at 682 n.18.
the Intervention MOO, the parties' counsel began
discussing a stipulated order to be filed in Bell
vis-à-vis the Transfer Motion. On October 3, 2017, the
Defendants' counsel wrote to the Plaintiffs' counsel:
What are your thoughts, in light of your agreement to not
oppose consolidation, on the parties filing a joint motion
with [the Honorable Carmen E. Garza, United States District
Judge for the District of New Mexico] asking to vacate the
JSR deadline and the scheduling conference?
from Charles J. Vigil, to Christopher M. Moody and Repps D.
Stanford at 3 (dated October 3, 2017), filed October 19, 2017
(Doc. 178-1). The Plaintiffs' counsel responded:
On our call we said that we would not oppose consolidation so
long as there is no appeal of the intervention order.
Thinking about it, I don't think you would have an appeal
anyway so assuming that you agree not to try an interlocutory
appeal, we are not opposing consolidation. If we are not
opposing consolidation I think it makes sense to ask Judge
Garza to vacate the JSR/scheduling conference and we submit
an order of consolidation and then proceed with case
scheduling before Judge Browning. In our experience Judge
Garza is pretty available by phone so we might want to
approach it that way.
Email from Christopher M. Moody, to Charles J. Vigil and
Repps D. Stanford at 3 (dated October 3, 2017), filed October
19, 2017 (Doc. 178-1). The Defendants responded: “Ok.
Makes sense. We are not appealing the intervention
order.” Email from Charles J. Vigil, to Christopher M.
Moody and Repps D. Stanford at 3 (dated October 3, 2017),
filed October 19, 2017 (Doc. 178-1).
MOO at 8-10, 327 F.R.D. 433 at 439-40.
October 4, 2017, the Basnet Intervenors filed the Third
Amended Complaint. See Third Amended Complaint at
18. The same day,
the Defendants' counsel emailed the Plaintiffs'
counsel a draft of the Stipulated Order, asking for the
Plaintiffs' counsel's thoughts. See Email
from Jeffrey L. Lowry, to Christopher M. Moody and Repps D.
Stanford at 6 (dated October 4, 2017), filed October 19, 2017
(Doc. 178-1). The Plaintiffs' counsel responded:
“The order looks fine except that we think it should
refer to Rule 42(a)(2) rather than (a)(3). That's the
part of the rule implicated in all the class cases involving
consolidation that we have seen.” Email from
Christopher M. Moody, to Jeffrey L. Lowry and Repps D.
Stanford at 6 (dated October 4, 2017), filed October 19, 2017
(Doc. 178-1). The Defendants' counsel explained:
The motion cited Rule 42(a)(3) because it allows the most
flexibility given the unusual circumstances and status of the
two cases. Nevertheless, I don't know that we need to get
hung up on the subparagraph. If we revise the order to cite
Rule 42 without reference to any particular part of that
rule, would that be acceptable?
Email from Jeffrey L. Lowry, to Christopher M. Moody at 6
(dated October 4, 2017), filed October 19, 2017 (Doc. 178-1).
Later that day, Defendants' counsel emailed
Plaintiffs' counsel: “Here are the motion and order
to vacate the Bell deadlines and scheduling conference as
well as the final version of the stipulated order on the
motion to transfer case. With your approval, I'll file /
submit these today.” Email from Jeffrey L. Lowry, to
Christopher M. Moody at 9 (dated October 4, 2017), filed
October 19, 2017 (Doc. 178-1). The Plaintiffs' counsel
replied: “Looks good.” Email from Repps D.
Stanford, to Jeffrey L. Lowry and Christopher M. Moody at
9-10 (dated October 4, 2017), filed October 19, 2017 (Doc.
178-1). On the same day, the Plaintiffs filed the Complaint
in this case, see Complaint at 1.
On October 6, 2017, [Judge Gonzales], approved Bell,
Stipulated Order Granting Defendants' Motion to Transfer
Related Case to Honorable James O. Browning, filed October 6,
2017 (Doc. 15)(“Transfer Order”). The Transfer
Order states that the “Plaintiffs do not oppose”
Tri-State FlightCare's Motion to Transfer and that Judge
Gonzalez grants the Motion to Transfer. Transfer Order at 1.
The Transfer Order concludes with the following:
“Accordingly, pursuant to Rule 42 of the Federal Rules
of Civil Procedure, IT IS HEREBY ORDERED that the above
captioned case be transferred to the Honorable James O.
Browning, who shall preside over all future
proceedings.” Transfer Order at 1-2.
On October 16, 2017, the Plaintiffs' counsel's
paralegal, Anne Chavez, spoke with the Court's Courtroom
Deputy, Michelle Behning, to determine whether Bell and this
case had been consolidated. See Declaration of Anne
Chavez ¶¶ 4-6, at 1 (dated November 15, 2017),
filed November 15, 2017 (Doc. 181-2)(“Chavez
Decl.”). Behning “confirmed that the cases had
not formally been consolidated, and suggested that a motion
to consolidate be filed if that was the direction Counsel
wished to take.” Chavez Decl. ¶ 6, at 1. That same
day, the Plaintiffs' counsel emailed the Defendants'
My paralegal spoke with Michelle at Judge Browning's
chambers this morning regarding consolidation. We filed our
reply brief on Friday only in the Bell case because we have
not received any order consolidating the two cases from Judge
Browning (just the notice from the clerk reassigning the Bell
case to Judge Browning). Michelle told us that the two cases
(Bell and Bastian or whatever we are calling it now) are not
consolidated and that if we want them consolidated we need to
file a motion. What do you think?
from Christopher M. Moody, to Charles J. Vigil and Jeffrey L.
Lowry at 10 (dated October 16, 2017), filed October 19, 2017
(Doc. 178-1). The Defendants' counsel responded:
Many thanks. Not being party to your paralegal's ex parte
communications with Judge Browning's chambers, it is
difficult for me to comment. We filed a motion to
transfer the Bell case to Judge Browning and
that is what was approved by Judge Gonzales. And, that is
what has happened -- the Bell case is no[w] assigned to Judge
Browning. It was most certainly never a motion to
consolidate. . . . In any event, we believe consolidation is
improper. To the extent Plaintiffs are entertaining making of
such a motion, please be advised that the Defendants oppose
and will oppose any motion to consolidate the two cases.
Email from Charles J. Vigil, to Christopher M. Moody and
Jeffrey L. Lowry at 10 (dated October 16, 2017), filed
October 19, 2017 (Doc. 178-1)(emphasis in original).
MOO at 10-12, 327 F.R.D. at 440-41.
Basnet Intervenors then filed the Basnet Intervenors'
Opposed Fed.R.Civ.P. 42 (A)(1) & (A)(2) Motion to
Consolidate, filed October 19, 2017 (Doc. 178)(“Motion
to Consolidate”), asking to consolidate this case and
Bell. See Motion to Consolidate at 1.
Thirteen days later, the Defendants filed the Defendants'
Motion to Strike or Dismiss Third Amended Complaint, filed
November 1, 2017 (Doc. 180)(“Motion to Strike”),
arguing that, because this case is closed, the Basnet
Intervenors cannot prosecute the Third Amended Complaint.
See MTD at 1. In the Consolidation MOO, the Court
granted the Basnet Intervenors' request to consolidate.
See Consolidation MOO at 436, 450, 452-54. The Court
Given that the facts, parties, and legal claims are virtually
identical, consolidating the cases would be the most
efficient way forward. The Court does not see how
consolidation could cause delay or prejudice; there appears
to be no upside to keeping these cases separate.
. . . .
. . . . The Defendants' position is that the Court's
Final Judgment means that there is no action before the court
with which Bell can be consolidated. See
Consolidation Response at 7-9. See also Fed.R.Civ.P.
42(a) (listing procedural options available for
“actions before the court”). The Defendants'
[sic] contend that, once a court enters a final judgment,
nothing else can happen in the case unless and until the
final judgment is set aside. See Consolidation
Response at 8-9 (citing Rekstad v. First Bank Sys.
Inc., 238 F.3d 1259, 1261 (10th Cir. 2001); United
States v. Kentucky Utilities Co., 927 F.2d 252, 255 (6th
Cir. 1991)); Pedroza v. Lomas Auto Mall, Inc., 304
F.R.D. 307, 333 (D.N.M. 2014)(Browning, J.); Thompson v.
THI of New Mexico at Casa Arena, [No. CIV 05-1331
JB/LCS, ] 2008 WL 5999653, at *28 [(D.N.M. Dec. 24,
Consolidating an active case with one in which Final Judgment
has been entered is permissible, but rarely appropriate.
See, e.g., Shelton v. MRI Global,
No. 11-CV-02891, 2014 WL 793464, at *2 (D. Colo. Feb. 26,
2014)(Brimmer, J.)(“Courts are reluctant to consolidate
a pending case with a case where a final judgment has been
entered, unless the final judgment is first vacated.”);
Washington v. Brumbaugh & Quandahl, P.C., LLO.,
No. 8:15CV444, 2016 WL 1435665, at *3 (D. Neb. Apr. 11,
2016)(Strom, J.), on reconsideration, No. 8:15CV444, 2016 WL
4734393 (D. Neb. Sept. 9, 2016); Tormasi v. Hayman,
No. CIV. 3:08-CV-4950, 2009 WL 3335059, at *3 (D.N.J. Oct.
15, 2009)(Thompson, J)(concluding that consolidating an
active case with a closed case would not “promote the
administration of justice”). But see Abels v.
Skipworth, No. C10-5033BHS, 2010 WL 2376230, at *1 (W.D.
Wash. June 9, 2010)[(Settle, J.)](concluding that the
plaintiff's request to consolidate a case with a prior
closed case is “misplaced, ” because rule 42(a)
applies to actions before the court, and the plaintiff's
prior case “is no longer an action before the
Court”). Here, however, these cases' unique
circumstances satisfy the Court that consolidation would help
the parties resolve their disputes most efficiently. Although
the Court has entered Final Judgment in this case, the Court
recently granted motions [sic] to intervene, restocking this
case's docket with sixty-nine fresh named Plaintiffs.
Whether they can or must undo the Final Judgment via a rule
59 or 60 motion before proceeding any further remains to be
seen, but given that the Court has already allowed
intervention, there is enough life in the case for
consolidation to be a useful and efficient tool. That low bar
is enough for the Court to file documents in a docket in a
consolidated case rather than keeping them separate. When the
Court has consolidated cases in the past, it has occasionally
had to dismiss one of the cases and enter final judgment; yet
the cases remain consolidated in a consolidation caption and
the Court does not “unconsolidate” the cases.
Here, the only difference is that the Court entered a final
judgment in this case before consolidating the cases rather
than entering final judgment after the consolidation order.
In any event, the Court concludes that consolidating the
cases will help avoid unnecessary costs and economize the
Court's resources, notwithstanding the final judgment.
MOO at 34-36, 327 F.R.D. at 452-53. The Court chose to leave
the Third Amended Complaint on file until the Basnet
Intervenors demonstrate that they do not need to satisfy rule
59 or rule 60 before they prosecute the Third Amended
Complaint, or that rule 59 or rule 60 permits this case to
proceed. See Consolidation MOO at 37-38, 327 F.R.D.
at 453. The Court permitted the Defendants not to file an
answer to the Third Amended Complaint until the Court and the
parties determined whether the Basnet Intervenors could
proceed with this litigation. See Consolidation MOO
at 37-38, 327 F.R.D. at 453. Because the arguments in the
briefing and hearing on the Motion to Strike overlap with the
briefings on the Motion, the Court incorporates in full its
earlier summary of those briefings and that hearing.
3. The Motion to Strike.
The Defendants filed their Motion to Strike in this case on
November 1, 2017. See Motion to Strike at 1. In the
Motion to Strike, the Defendants argue that the Court should
dismiss the [Third Amended] Complaint, because the case
remains closed. See Motion to Strike at 4. According
to the Defendants, the Plaintiffs may not file their [Third
Amended] Complaint until they convince the Court to set aside
the Final Judgment. See Motion to Strike at 4-5. The
Defendants contend that the Court should “strike or
dismiss” the [Third Amended] Complaint “on
jurisdictional grounds” pursuant to rule 12(b)(1) of
the Federal Rules of Civil Procedure, or pursuant to rule
12(b)(6) Federal Rules of Civil Procedure, because the Court
cannot provide relief so long as the Final Judgment remains
in place. Motion to Strike at 5.
. . . .
5. The Response to the Motion to
The Plaintiffs respond to the Motion to Strike. See
Intervenors'/Plaintiffs' Response to Defendants'
Motion to Strike or Dismiss Third Amended Complaint [Doc.
180], filed November 15, 2017 (Doc. 182)(“Strike Motion
Response”). The Plaintiffs argue that filing the [Third
Amended] Complaint was proper, because --the Plaintiffs
contend -- the Court's Intervention MOO establishes that
the Plaintiffs may proceed with their claims without moving
to set aside the Final Judgment. See Strike Motion
Response at 3-4. The Plaintiffs contend that they do not seek
to undo the Final Judgment, which resolves five
Plaintiffs' individual claims “but did not affect
the nascent class interests.” Strike Motion Response at
4-5. The Plaintiffs also contend that the Defendants, in
bringing the Motion to Strike, aim to keep the
Plaintiffs' claims active in the sister proceeding Bell,
which could mean that some Plaintiffs' and proposed class
members' claims might be time barred. See Strike
Motion Response at 7 n2. The Plaintiffs argue that the
Defendants' “procedural shenanigans” are
“contrary to the spirit and intent of the Federal Rules
of Civil Procedure ‘to secure the just, speedy, and
inexpensive determination of every action and
proceeding.'” Strike Motion Response at 7 n.2
(quoting Fed.R.Civ.P. 1)).
6. The Reply to the Motion to
The Defendants reply to the Motion to Strike Response.
See Reply in Support of Defendants' Motion to
Strike or Dismiss Third Amended Complaint, filed December 6,
2017 (Doc. 186)(“Strike Motion Reply”). The
Defendants reply that, if there is any party engaging in
creative procedural stratagems, it is the Plaintiffs, given
filed a separate complaint that they concede is nearly
identical to the Third Amended Complaint that is at issue in
the instant motion, then agreed to transfer that lawsuit to
the judge presiding over this lawsuit, and then filed a
motion to ...