United States District Court, E.D. North Carolina, Western Division
TERESA M. SPEAKS, TOBY SPEAKS, STANLEY SMITH, EDDIE BROWN, ROBERT POINDEXTER, MIKE MITCHELL, ROY L. COOK, ALEX SHUGART, and N. RANDY WOOD, Plaintiffs,
U.S. TOBACCO COOPERATIVE, INC., Defendant.
C. DEVER, III CHIEF UNITED STATES DISTRICT JUDGE
September 15, 2017, Dan Lewis ("Lewis") filed a
motion to intervene under Rule 24 of the Federal Rules of
Civil Procedure. [D.E. 70]; see Fed.R.Civ.P. 24(a), (b).
Lewis is a named plaintiff in a case against U.S. Tobacco
Cooperative, Inc. ("U.S. Tobacco"), which he filed
in North Carolina Superior Court in 2005. See Dan Lewis
et. al. v. Flue-Cured Tobacco Coop. Stabilization Corp.
(n/k/a U.S. Tobacco Coop.. Inc.)(Lewis) 05 CVS 188 (
N.C. Super. Ct); [D.E. 73] 8-9. The Lewis case is
pending in North Carolina Superior Court. This federal case
"was filed in 2012 after various plaintiffs in the State
Court Proceeding splintered and disagreed as to the strength
of their legal claims and optimal strategy for pursuing
them." [D.E. 73] 9; see Am. Compl. [D.E. 64]
¶¶ 46-58. On December 17, 2012, this court stayed
the federal case while awaiting a state-court determination
on class certification in Lewis. See [D.E.
18, 22]. After the state proceeding "was remanded to the
trial court earlier this year, " this court lifted its
stay, and the parties in the federal case engaged in
mediation. See [D.E. 73] 12-13. The mediation took place on
May 11-12, 2017, and yielded a term sheet on May 24, 2017.
Id. at 13-14. On June 9, 2017, the parties in the
federal case appeared and provided this court a status update
about the mediation and impending settlement. See
Id. at 14: [D.E. 54].
named plaintiff in a parallel lawsuit against U.S. Tobacco,
Lewis knew about this federal case no later than November
2014, when it was referenced in the brief U.S. Tobacco
submitted to the Supreme Court of North Carolina. See [D.E.
76-1] 14. Lewis also knew about the mediation between the
parties in this case no later than May 5, 2017. See [D.E.
73-20]. Notably, on May 5, 2017, William Robert Cherry, Jr.,
Lewis's attorney, sent a letter to the counsel for
plaintiffs in this federal case referencing the upcoming
mediation. Id. On June 5, 2017, U.S. Tobacco filed a
motion informing this court that it had concluded a
"two-day mediation" on "May 12, 2017."
[D.E. 52] 1; see [D.E. 53]. On June 9, 2017, the
parties attended a status conference in this court and
discussed the mediation and impending settlement. See [D.E.
54]. Also on June 9, 2017, Lewis argued to the state court
that the mediation in this case was improper, but made no
motion or other argument in this court. See [D.E. 73-24]. On
June 22, 2017, U.S. Tobacco notified the state court that a
mediation in the federal case had yielded a "tentative
settlement" and that it expected to file
"preliminary papers for judicial approval of the
settlement within approximately 30 days." [D.E. 73-23]
September 15, 2017, Lewis moved to intervene in this case.
See [D.E. 70]. On September 26, 2017, U.S. Tobacco responded
in opposition. See [D.E. 73]. On September 28, 2017,
plaintiffs responded in opposition. See [D.E. 76]. On October
2, 2017, Lewis replied. See [D.E. 79].
party seeking to intervene under either Federal Rule of Civil
Procedure 24(a) or 24(b) may do so only upon the filing of a
timely motion." Alt v. EPA. 758 F.3d 588, 591
(4th Cir. 2014) (quotation omitted); see NAACP v. New
York, 413 U.S. 345, 365-66 (1973). "In order to
properly determine whether a motion to intervene in a civil
action is sufficiently timely, [courts must] assess three
factors: first, how far the underlying suit has progressed;
second, the prejudice any resulting delay might cause the
other parties; and third, why the movant was tardy in filing
its motion." Alt, 758 F.3d at 591. These three factors
doom Lewis's motion to intervene. First, this suit has
progressed all the way to preliminary settlement, and the
parties have begun to implement the approved notice program.
The timeliness requirement exists "to prevent a tardy
intervenor from derailing a lawsuit within sight of the
terminal." Scardelletti v. Debarr, 265 F.3d
195, 202 (4th Cir. 2001) (quotation omitted), rev'd
sub nom. on other grounds Devlin v. Scardelletti. 536
U.S. 1 (2002). Second, the parties would be substantially
prejudiced by allowing Lewis's tardy intervention. The
parties have made and are on the brink of making further
substantial investment in the notice program attendant to the
preliminary settlement. See Wheatman Decl. [D.E. 73-32].
Permitting Lewis to intervene at this time would derail this
process and financially prejudice the parties. Finally, Lewis
has failed to show good cause for his tardy motion. Lewis
sought to intervene in this case on September 15, 2017,
nearly five years after the initial complaint was filed, and
nearly five months after learning about the mediation.
defense of his untimely motion, Lewis argues that he was not
aware of the specific details of the settlement until
September 7, 2017, and filed his Rule 24 motion eight days
later. See [D.E. 79] 4. Lewis cites United Airlines. Inc.
v. McDonald for the proposition that intervention may be
timely, even if late in the litigation, if it is done
"as soon as it [becomes clear] that the interests of the
unnamed class members [are] no longer protected by the named
class representatives." 432 U.S. 385, 394 (1977).
does not help Lewis. The intervenor in McDonald
sought to intervene immediately after it became clear that
the interests of the named plaintiffs and the unnamed class
members diverged. See id. at 388-90. In contrast, on
May 5, 2017, Lewis's counsel wrote plaintiffs'
counsel in the federal case and stated that plaintiffs and
their attorneys represented a position that was
"materially adverse to the interests" of Lewis and
his class. [D.E. 73-20] 1-2; [D.E. 79-2] 1-2. On June 9,
2017, Lewis echoed to the state court his concerns about
plaintiffs and plaintiffs' counsel's ability to
adequately represent the class. See [D.E. 73-24] 3.
Nonetheless, Lewis waited until September 15, 2017, to seek
court refuses to endorse a wait-and-see strategy designed to
disrupt a preliminary settlement at the eleventh hour.
Permitting intervention in this case would neuter Rule
24's timeliness requirement. The motion to intervene is
untimely and is denied. Moreover, for the reasons discussed
in the responses in opposition, the motion not only is
untimely, but also lacks merit. See [D.E. 73] 15-21; [D.E.
Lewis's motion to ...