Opinion
CASE NO. 2:06-cv-1158-MEF, CASE NO. 2:07-cv-584-MEF.
March 27, 2008
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the Motion to Intervene filed by Hwashin America Corporation ("Hwashin") and Travelers Property Casualty Company of America, Inc. ("Travelers") (Doc. # 173).
Hwashin is named as a Third Party Defendant in Gray Construction, Inc's Third Party Complaint (Doc. # 26). Therefore, Hwashin already is a party in this case. Restatement (Second) of Judgments § 34(1), p. 345 (1980) ("A person who is named as a party to an action and subjected to the jurisdiction of the court is a party to the action."); id., § 34, Comment a, Reporter's Note, at 347 ("The designation of persons as parties is usually made in the caption of the summons or complaint but additional parties may be named in such pleadings as a counterclaim, a complaint against a third party filed by a defendant, or a complaint in intervention.").
Because it is a party, Hwashin cannot intervene pursuant to Rule 24. See Premier Foods of Bruton, Inc. v. City of Orlando, 192 F.R.D. 310, 311 (M.D. Fla. 2000) (citing 7C Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure, § 1901 (2d ed. 1986)). Rather, Hwashin should assert its property damage claims as counterclaims pursuant to Rule 13(a), and Travelers should be joined in this counterclaim pursuant to Rule 13(h).
Although diversity of citizenship would exist if Hwashin was aligned as a Third Party Defendant, "[d]iversity jurisdiction cannot be conferred upon the federal courts by the parties' own determination of who are plaintiffs and who defendants." City of Indianapolis v. Chase Nat'l Bank of City of N.Y., 314 U.S. 63, 69 (1941). The Court must "look beyond the pleadings, and arrange the parties according to their sides in the dispute." Id. (quoting Dawson v. Columbia Ave. Sav. Fund, Safe Deposit, Title Trust Co., 197 U.S. 178, 180 (1905)). "Whether the necessary collision of interest exists . . . must be ascertained from the principal purpose of the suit and the primary and controlling matter in dispute." Id. (internal quotation marks and citations omitted).
In this case, the primary and controlling matter in dispute is the cause of the roof collapse at Hwashin's facility, which injured Mrs. Piggott and damaged Hwashin's property. Gray filed third party claims against its subcontractors (for work that was negligent or not pursuant to the design agreement or both) and Hwashin (for not maintaining the roof drains at its facility). Hwashin plans to make several claims against Gray and its subcontractors.
Gray and its subcontractors are on one side of the primary matter in dispute because they designed and constructed the facility. Hwashin and the Piggotts are on the other side because they were harmed by the roof collapse. Hwashin and Travelers have their interests in alignment because Travelers paid Hwashin for some of its property damage. Therefore, Hwashin and Travelers should be Plaintiffs, and Gray and its subcontractors should be Defendants or Third Party Defendants.
Accordingly, it is hereby ORDERED as follows:
(1) Hwashin and Travelers's Motion to Intervene (Doc. # 173) is DENIED.
(2) To the extent that Hwashin wishes to pursue claims in this action against Gray and its subcontractors, Hwashin shall assert its claims as counterclaims and crossclaims on or before March 31, 2008. If Hwashin elects to assert these counterclaims and crossclaims, the Court will realign Hwashin and Travelers as Plaintiffs and remand this case to the Circuit Court of Butler County, Alabama.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 69 S.Ct. 1221 1225-26 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4 Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1 983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , , , (1949); , , (11th Cir. 1989); , , , , , (1964). : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).