Opinion
Civil Action No. 3:01-CV-2375-M.
February 1, 2002.
MEMORANDUM ORDER
Before the Court is the Plaintiffs' Motion for Leave to File their "Third" Amended Complaint, filed December 7, 2001. Plaintiffs, in their Reply, agree with Delta that Leonard Forbes' proposed appearance to assert his claim against AMEX Assurance Company is "actually in the nature of an intervention." The Court will thus recognize the proposal as a Plea in Intervention.
The amended complaint should be styled Plaintiffs' Second Amended Complaint.
FACTUAL SUMMARY
Ruth Forbes died while flying on Delta Air Lines, Inc. ("Delta") from Dallas, Texas, to Atlanta, Georgia with her daughter Alice Phillips ("Phillips"). Phillips, individually and on behalf of all of the wrongful death beneficiaries of Ruth Forbes, brought an action in Texas state court, alleging Delta's negligence caused the death of Ms. Forbes. Delta removed the case to the Eastern District of Texas based on diversity jurisdiction, and the Plaintiffs simultaneously sought leave to add Leonard and Patrick Forbes, Ruth Forbes's surviving husband and son respectively, and to remand the case. Prior to transfer, Judge Howell Cobb denied both motions, finding that Leonard and Patrick Forbes were already represented in the suit and were being added to destroy diversity. On October 17, 2001, the case was transferred to the Northern District of Texas. Plaintiffs then sought to join Stat Medevac, Inc., Aviation Mobility, L.L.C., Luxfer Group, Luxfer Gas Cylinders, and AMEX Assurance Company ("AMEX") as defendants. Leonard Forbes ("Leonard") seeks to intervene as a plaintiff to assert claims against AMEX.
Ruth Forbes suffered from a respiratory disease. She needed supplemental oxygen to assist her breathing. Arrangements for oxygen tanks on the flight were made by Ms. Phillips in advance of the flight and they were provided to Mrs. Forbes for use during the flight; however, the flow of oxygen allegedly ceased at some point during the flight, resulting in her death.
Delta opposes the intervention of Leonard as a plaintiff-intervenor and the joinder of AMEX as a defendant. It argues that the Amended Complaint seeks to add an additional plaintiff who asserts unrelated claims against a new defendant against whom Phillips, the moving party, asserts no claim.
ANALYSIS
Delta initially asserts that Plaintiffs seek to add Leonard to divest the Court of jurisdiction. The case was properly removed based on diversity jurisdiction. If granted, the Amended Complaint and Plea in Intervention would not defeat diversity. While at the time the Original Petition was filed, Leonard was a resident of Georgia (where Delta is a citizen), when Phillips sought to join him to assert the AMEX claims, he was a citizen of Florida. Leonard's intervention thus would not destroy complete diversity or divest the Court of jurisdiction.
See, e.g., Casas Office Machines, Inc. v. Mita Copystar America, Inc., (1st Cir. 1994) (diversity is adjudicated between the plaintiff and the newly added parties at the time leave is requested); but see Rosmer v. Pfizer Inc., 263 F.3d 110, 126 (4th Cir. 2001) (Section "1367(b) prohibits supplemental jurisdiction over claims of would-be plaintiffs, who attempt to join an ongoing diversity action under Rule 19 or to intervene in such an action under Rule 24, when the presence of these plaintiffs would destroy diversity jurisdiction"). Judge Cobb held that the Phillips's purpose in joining Leonard as a plaintiff on the initial claims against Delta was to defeat diversity. The Court does not upset this finding. However, the timing of the intervention creates a distinct situation since he is not a Georgia resident at the time this effort to join was filed and Delta does not argue the change in residency was a result of fraud.
Delta does not oppose the joinder of defendants Stat Medevac, Inc., Aviation Mobility, L.L.C., Luxfer Group, and Luxfer Gas Cylinder. The Court GRANTS Phillips leave to join these Defendants.
Delta objects to Leonard's joinder. Under Federal Rule of Civil Procedure 24(b), the Court may, in its discretion, permit intervention if "the applicant's claim or defense and the main action have a question of law or fact in common." In exercising its discretion, the Court should consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
FED. R. CIV. P. 24.
Id.
Here, Leonard seeks to intervene so as to assert breach of contract, Insurance Code, and Deceptive Trade Practices Act claims against AMEX because of AMEX's alleged failure to pay life insurance proceeds on travel life and health insurance policies Leonard and/or Ruth Forbes allegedly purchased and entered into. He argues that "the questions of how, why, and under what circumstances Mrs. Forbes passed away," are common to both disputes and that "not allowing joinder of these two claims would cause the parties to basically have to try the same case twice."
Delta argues that before Leonard could assert a claim against AMEX, Phillips would have to join AMEX, but notes that she does not have standing to do so since only Leonard was a beneficiary of the AMEX policy. Further, Delta argues that even if Phillips could join AMEX, Leonard should not be permitted to intervene because his insurance claims do not share common questions of law or fact with Phillips's wrongful death action.
The Eastern District of Texas denied Phillips leave to join Leonard as a plaintiff, holding that "Leonard . . . [is] already represented in this lawsuit [by Phillips]." Mem. Op. at 3. The Court agrees with that conclusion, since Phillips sues individually and on behalf of all beneficiaries under the Texas Wrongful Death Statute. Leonard, not Phillips, is the beneficiary of the AMEX policies; Phillips cannot assert claims against AMEX. Further, the evidence likely to be produced on the wrongful death claim is largely distinct from the evidence that will be proffered in connection with the bad faith, breach of contract, and negligent claims handling claims tied to Leonard's life and health insurance policies. Factual commonalities are present. However, although discovery on the claims may overlap, the legal posture of them is such that the interpretation and bad faith issues related to Leonard's insurance claims, if joined with the fact intensive causation disputes related to the Plaintiffs' wrongful death claims, would unduly delay or prejudice the adjudication of the rights of the original parties.
See also Pena v. McAurthur, 889 F. Supp. 403 (E.D. Cal. 1994) (severing claims where the gravamen of an automobile accident claim was separate and distinct from the insurance claim).
Having weighed the relevant equities, the Court concludes that a strong case for intervention has not been made. Leave to join AMEX and Leonard is therefore DENIED, but leave to join Stat Medevac, Inc., Aviation Mobility, L.L.C., Luxfer Group, and Luxfer Gas Cylinder is GRANTED. Phillips is instructed to file a Second Amended Complaint in accordance with this Order within twenty days of the date of this order.