United States District Court, S.D. Alabama, Southern Division
BERNA E. PARKER, et al., Plaintiffs,
RANDY LEE MORTON, Defendant.
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.
action is before the Court on Georgia Farm Bureau Mutual
Insurance Company (“Georgia Farm”) and State Farm
Mutual Automobile Insurance Company's (“State
Farm”) Motions to Intervene. (Docs. 41 & 44).
Plaintiffs Berna Parker and Beverly Wall
(“Plaintiffs”) have responded to the motions, and
they have no objections to either motions to intervene.
(Docs. 41 & 44).
jurisdiction (28 U.S.C. § 1332) is the basis for this
case's federal jurisdiction.However, Plaintiffs and
Georgia Farm are not diverse because, for purposes of
diversity jurisdiction analysis, both Plaintiffs and Georgia
Farm are citizens of Georgia. As the Court will explain,
Georgia Farm's Motion to Intervene will be denied because
its intervention would destroy diversity jurisdiction. State
Farm's Motion to Intervene will be granted if and when
State Farm complies with Federal Rule of Civil Procedure
24(c), which requires the motion be “accompanied by a
pleading that sets out the claim or defense for which
intervention is sought.”
allege Defendant Randy Lee Morton negligently operated a
motor vehicle and collided with Plaintiffs on or about May
21, 2016. (Doc. 1). Plaintiffs allege a negligence claim
against the Defendant. Plaintiffs filed a complaint in
federal court on May 18, 2018. In that first complaint,
Plaintiffs sued (1) Randy Lee Morton; (2) Georgia Farm; and
(3) State Farm. (Id.). Plaintiffs alleged diversity
jurisdiction was present. (Id.).
later moved to dismiss Georgia Farm and State Farm without
prejudice. (Doc. 29). In that motion, Plaintiffs noted that
the Magistrate Judge had expressed concerns regarding the
parties' lack of diversity and ordered Plaintiffs to show
cause why the case should not be dismissed for lack of
jurisdiction. (Id. at 1). Instead of filing a show
cause response, Plaintiffs moved for leave to dismiss Georgia
Farm and State Farm. Plaintiffs noted that Georgia Farm is a
“nondiverse [d]efendant.” (Id.). They
further requested that State Farm be dismissed because State
Farm is Wall's excess underinsured motorist insurance
carrier. Plaintiffs stated that “State Farm is not
responsible for the payment of any damages until the Georgia
Farm . . . policy is exhausted.” (Id. at 2).
At the same time, Plaintiffs submitted a memorandum in
support of their motion to dismiss.
memorandum Plaintiffs submitted acknowledged
“[c]omplete diversity of citizenship [was] lacking as
both Plaintiffs and one (1) Defendant, Georgia Farm Bureau,
are citizens of the State of Georgia . . . .” (Doc. 30
at 2). Nevertheless, Plaintiffs argued that this problem
could be remedied. Plaintiffs argued that, “It is well
settled that a jurisdictional defect may be ‘cured by
the dismissal of the party that . . . destroyed
diversity.'” Landmark Equity Fund II, LLC v.
Residential Fund 76, LLC, 631 Fed.Appx. 882, 884 (11th
Cir. 2015) (quoting Grupo Dataflux v. Atlas
Glob. Grp., LP, 541 U.S. 567, 572 (2004). However,
Plaintiffs noted that before dismissing the nondiverse party,
courts must determine whether the party to be dismissed is
dispensable. If the nondiverse party is dispensable,
“the court may dismiss that party and the claims
against it, and retain jurisdiction over any remaining
diverse parties.” Landmark Equity Fund II,
LLC, 631 Fed.Appx. at 884-85.
Magistrate Judge entered a Report and Recommendation
recommending Plaintiffs' motion be granted. (Doc. 35).
The Report and Recommendation found that because Alabama law
does not require an uninsured/underinsured motorist carrier
be joined in the insured's primary case against an
alleged tortfeasor, Georgia Farm and State Farm were not
required parties under Fed.R.Civ.P. 19(a). (Id. at
6). It additionally found that even if Georgia Farm and State
farm were required parties, their presence was dispensable.
The Report and Recommendation observed that if Georgia Farm
was not dismissed, Plaintiffs' would have no available
remedy because the two-year statute of limitations has
expired on their tort claims. (Id. at 7).
Accordingly, the Report and Recommendation concluded that
Fed.R.Civ.P. 19(b)'s factors strongly favored Georgia
Farm and State Farm's dismissal. (Id. at 8).
Georgia Farm did not object to the Report and Recommendation.
Instead, it merely responded to the Report and
Recommendation. (Doc. 36). It stated that it had no position
on Plaintiffs' motion because, in Georgia Farm's
view, Georgia Farm still had the right to subsequently
intervene. (Id. at 1). It stated that if the Court
granted Plaintiffs' motion, it would “intervene
back into this litigation.” (Id.).
Specifically, Georgia Farm “believes that it is
consistent with Alabama law for an underinsured carrier to
have limited participation at the outset of any such
litigation to adequately determine if it is appropriate to
‘opt out' and that such determination cannot be
made until some initial discovery takes place.”
(Id. at 4).
Court adopted the Magistrate Judge's Report and
Recommendation and granted Plaintiffs' motion for
voluntary dismissal without prejudice. (Doc. 37). In the
Order, the Court noted that “should Defendant
successfully intervene, the issue of diversity will have to
be revisited.” (Id. at 1 n.1). It is now time
to revisit diversity.
neither Georgia Farm nor State Farm identifies whether
intervention is sought as a matter of right, pursuant to Rule
24(a), or instead permissively, pursuant to Rule 24(b), the
Court presumes they intend to intervene permissively. This
assumption is based on two facts. First, Georgia Farm and
State Farm make no argument that their interest is not
adequately represented by the existing defendant. And this
Court will not make the argument for them. See Davis v.
Butts, 290 F.3d 1297, 1300 (11th Cir. 2002) (holding
that to intervene as a matter of right, a party must
establish that “(1) his application to intervene is
timely; (2) he has an interest relating to the property or
transaction which is the subject of the action; (3) he is so
situated that disposition of the action, as a practical
matter, may impede or impair his ability to protect that
interest; and (4) his interest is represented inadequately by
the existing parties to the suit.”) (quoting
Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508,
1512 (11th Cir.1996)). Second, neither Georgia Farm nor State
Farm objected to the Magistrate Judge's conclusion that
they are not required parties under Rule 19(a). And since
Rule 19(a)(1)(B) mirrors Rule 24(a)(2), if Georgia Farm and
State Farm are not required parties, they do not have a right
partying seeking to permissively intervene need only show
that it “has a claim or defense that shares with the
main action a common question of law or fact . . . .”
Fed.R.Civ.P. 24(b)(1)(B). Generally, two elements must be
addressed: Whether “(1) the application to intervene
was timely; and (2) [whether] the intervenor's claim or
defense and the main ...