Opinion
Civil Action, No: 01-2748, Section: "M" (1)
February 5, 2002
HEARING ON MOTION
Before the undersigned is the motion of Donald P. Callais ("Callais") who seeks leave to intervene in these proceedings. The plaintiff, Becky T. Wilkerson ("Wilkerson"), and defendant, USI Gulf Coast, Inc. ("USI"), consented to trial of this action before the undersigned. Rec. doc. 4. Callais reports that Wilkerson objected to his request to intervene, but she has not filed any opposition.
Wilkerson seeks to intervene pursuant to Fed.R.Civ.P. 24(b). "Upon timely application anyone may be permitted to intervene in an action . . . when an applicant's claim or defense and the main action have a question of law or fact in common." Id. Wilkerson filed her complaint against her former employer pursuant to Title VII alleging that she was the victim of sexual harassment and retaliation. Wilkerson alleges that Callais sexually harassed her. Callais denies Wilkerson's allegations and seeks leave to assert claims of defamation and malicious prosecution.
Wilkerson cannot name Callais as a defendant in this proceeding because Title VII only imposes liability against a defendant who meets the definition of"employer." This definition does not include a natural person, such as Callais, except in those circumstances where the natural person is himself an employer under Title VII. Grant v. Lone Star Co, 21 F.3d 649 (5th Cir. 1994), and Zatarain v. WDSU-Television, Inc., 881 F. Supp. 240 (E.D.La. 1995).
There are common questions of fact and law in Callais' claim that are present in Wilkerson's claim, and therefore the issue is whether the court's discretion should be exercised in favor of granting Callais' leave to intervene. The following questions should be considered in the exercise of a court's discretion under Rule 24(b): (1) will the intervention unduly delay the adjudication of the plaintiffs claim; (2) will the applicant for leave to intervene benefit by intervention; and (3) whether the complicating effect of additional issues outweighs any advantage in the disposition of the common issue. 7C Wright, Miller and Marcus, Federal Practice and Procedure § 1913 (2d ed. 1986). Callais' intervention will not unduly delay or complicate the resolution of Wilkerson's claim.
The question remains, however, whether intervention will be of any benefit to Callais. In Keppard v. AFC Enterprises, Inc., 2001 WL 1539064 (La.App. 4th Cir. Nov. 28, 2001), the court listed six elements of a claim of malicious prosecution under Louisiana law:
(1) the commencement or continuance of an original criminal or civil proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) a favorable termination in favor of the present plaintiff; (4) the absence of probable cause for such a proceeding; (5) the presence of malice and (6) damage conforming to legal standards resulting to the plaintiff.Id. at *7 (Emphasis added). Even though Callais cannot be a party defendant to this Title VII proceeding, the Louisiana law on malicious prosecution must be interpreted as requiring a favorable termination of Wilkerson's claim against USI. Until that occurs, Callais lacks an essential element of his claim for malicious prosecution. Even if Callais was a defendant to Wilkerson's claim, there is authority under Louisiana law that an action for malicious prosecution may not be asserted by way of counterclaim. Lees v. Smith, 363 So.2d 974, 978 (La.App. 3rd Cir. 1978). If Callais cannot pursue his claim of malicious prosecution until this action has been terminated in favor of USI, Callais will derive no benefit from intervening.
Callais also alleges defamation.
The essential elements in Louisiana for a successful action in defamation are: (1) defamatory words, (2) communication to persons other than the one alleging the action, (3) falsity, (4) malice, actual or implied, (5) resulting injury.Lees v. Smith, 363 So.2d at 977-78. An action for defamation based upon a plaintiffs petition cannot be brought until final termination of the first suit. Id. at 979. Callais' claim for defamation suffers from the same defect as his claim for malicious prosecution.
Callais argues that if he is not permitted to intervene, he may file suit in state court and there would be two proceedings with the possibility of inconsistent results. Because Callais' state court action cannot proceed until this action has terminated in favor of USI, Callais' fear of inconsistent results is not well founded. The court's discretion should not be exercised in favor of granting Callais leave to intervene.
IT IS ORDERED that Callais' motion to file intervention (Rec. doc. 5)