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Robertson v. Enbridge (U.S.) Inc.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
May 28, 2021
CIVIL ACTION NO. 2:19-CV-01080-LPL (W.D. Pa. May. 28, 2021)

Opinion

Civil Action 2:19-CV-01080-LPL

05-28-2021

ZACHARIAH ROBERTSON, Plaintiff, v. ENBRIDGE (U.S.) INC., Defendant.


ECF Nos. 286, 289, 301

William S. Stickman, District Judge

REPORT AND RECOMMENDATION ON MOTIONS TO INTERVENE

LISA PUPO LENIHAN, UNITED STATES MAGISTRATE JUDGE

I. RECOMMENDATION

It is respectfully recommended that the Motions to Intervene as a defendant by Onshore Quality Control Specialists, LLC (“Onshore”), Avery Technical Resources, Inc. (“Avery”) and MBF Inspection Services, Inc. (“MBF”) be denied.

II. REPORT

Pending before the Court are three substantially identical Motions to Intervene as a defendant by Onshore Quality Control Specialists, LLC, Avery Technical Resources, Inc. and MBF Inspection Services, Inc. pursuant to Federal Rule of Civil Procedure 24. The motions are substantially similar, and for simplicity, the Court will refer to the entities as “Movants.”

A. Factual Background and Procedural History

This case was filed on August 27, 2019 alleging violations by Defendant of both the Pennsylvania Minimum Wage Act and the federal Fair Labor Standards Act. Compl., ECF No. 1. The Complaint alleges that Robertson and other workers like him regularly worked for Enbridge (US) Inc. (“Enbridge”) over 40 hours per week and were never paid overtime. Id. ¶ 4. It further alleges that Enbridge improperly classified employees as exempt and paid a daily rate. Id. ¶ 5. The putative class includes all personnel who worked for or on behalf of Enbridge who were paid a day rate for the past three years. Id. ¶ 15. Two other parties, Cypress Environmental Management-TIR, LLC (“Cypress”) and Cleveland Integrity Services, Inc., (“CIS”) were permitted to intervene at a much earlier stage of the case, when discovery had not yet commenced. ECF No. 111. The claims of putative plaintiffs employed by Cypress and CIS have been either dismissed or deferred until after arbitration.

Following a lengthy and robust motions practice as well as discovery and mediation efforts, original Defendant Enbridge (U.S.) Inc. has entered into a settlement agreement with Plaintiffs. ECF No. 270. The District Judge has entered an Order granting Approval of a Collective Action Settlement and Preliminary Approval of a Class Action Settlement. ECF No. 272. The putative class for the settlement agreement consists of

All Plaintiffs, Opt-in Plaintiffs, and current or former Inspectors who performed work on Defendant Enbridge (U.S.) Inc. pipeline or projects (including the pipeline or projects of Spectra Energy Corp. or affiliated entities) at any time from September 17, 2017 to September 17, 2020 working in Pennsylvania, New York, Ohio and Illinois; and employed by the Vendor Companies.
ECF No. 272 at 2.

Numerous members of this putative class were staffed via third party vendors, including Movants herein. Notice to these putative class members must be provided pursuant to the Order of Preliminary Approval and Enbridge claims that it does not have access to many of the workers' contact information. To obtain the information, it was agreed that counsel for Robertson, the named Plaintiff, would send third party subpoenas to certain third-party vendors, Onshore, MBF and Avery being three of these. See Robertson's Motion to Enforce Compliance with Third-Party Subpoena, ECF No. 293-3 at 3. The Fairness Hearing for Final Approval is currently scheduled before the District Judge on June 29, 2021.

Enbridge and Robertson oppose the intervention requests. ECF Nos. 292, 293, 294. Onshore and Avery have filed Replies. ECF Nos. 299, 300. The Motion filed by MBF is more recent (filed May 24, 2021, ECF No. 301). No Responses or Replies have been filed yet; however, as this Motion and Brief in Support are identical to those filed by Onshore and Avery the Court sees no need to wait for Responses and Replies redundant to what is already before it.

B. Legal Standard

Under Federal Rule of Civil Procedure Rule 24:

(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
Fed. R. Civ. P. 24 (a).

Absent an applicable federal statute providing a right to intervene in intervention as of right cases, the applicant bears the burden to satisfy all four requirements of Rule 24(a)(2) . Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 220 (3d Cir. 2005) (citing Kleissler v. United States Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998)). The four-part test requires: (1) timely application, (2) the applicant has a significantly protectable interest in the pending lawsuit, (3) disposition of the lawsuit may impair or impede his ability to protect applicant's interest absent intervention, and (4) the existing parties do not adequately represent applicant's interest. Id.

Under section 24(c) , a motion to intervene “must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.” Fed.R.Civ.P. 24 (c).

C. DISCUSSION

Movants argue that, because their employees had agreed to arbitrate any claims associated with their employment, they should not be included in any class or collective settlement. Onshore, MBF and Avery seek leave to intervene so that they can file a motion for protective order relative to these subpoenas to establish that they need not produce any confidential employee information and that no notice be sent to any of their employees.

Plaintiffs object to the intervention, arguing that the motions are untimely, will prejudice the parties and drastically impact the settlement agreement with Enbridge. In addition, all three potential intervenors can litigate the subpoenas directly and do not need to intervene to do so.

At the time of filing of Plaintiff's Response to the Onshore and Avery motions, there was litigation over the subpoenas in Colorado and possibly also in Texas. The issues raised in Colorado regarding the Avery subpoena has now been transferred to this Court. ECF Nos. 305, 306.

Enbridge also objects to the intervention, arguing that the motions directly interfere with the settlement agreement between it and Plaintiffs. It argues that there is a distinction between notice to employees who are barred from being potential plaintiffs in an ongoing class/collective lawsuit due to arbitration agreements and notice to employees of their right to participate in a settlement.

Rule 24(a)(2) Intervention as of Right

The Third Circuit has broken Rule 24 (a)(2) into four parts which the Court will now address. Harris v. Pernsley, 820 F.2d 592, 596 (3d Cir. 1987) (citing Commonwealth of Pennsylvania v. Rizzo, 530 F.2d 501, 504 (3d Cir.), cert denied sub nom. Fire Fighters Union v. Pennsylvania, 426 U.S. 921 (1976)).

i. Timeliness

The Third Circuit has identified three factors for courts to use to determine the timeliness of intervention requests: “(1) How far the proceedings have gone when the movant seeks to intervene, (2) [the] prejudice which resultant delay might cause to other parties, and (3) the reason for the delay.” In re Fine Paper Antitrust Litig., 695 F.2d 494, 500 (3d Cir. 1982)(internal citations omitted). The main objection to intervention by Plaintiffs and Enbridge is timeliness. All three movants have been aware of this matter for over a year. See Plaintiffs' Brief in Opposition, ECF No. 293 at 6. Enbridge argues that it sent notice to these companies in November 2019 advising them of the lawsuit. See Enbridge Brief in Opposition, ECF No. 292 at 7.

Movants chose not to intervene when Cypress and CIS did. Following years of motions practice and months of negotiations between Enbridge and Plaintiffs, Enbridge has chosen to settle. Movants are preventing this settlement from moving forward. The case is in a much different posture now than when the original motions to intervene were filed. Settlement has been conditionally approved and the parties are working to facilitate notice to the class and collective members. Intervention will only cause delay and prejudice to both Plaintiffs and Enbridge. See Choike v. Slippery Rock Univ. of Pa. of State Sys. Of Higher Educ., 297 Fed.Appx. 138, 141 (3d Cir. 2008)(holding that intervention after the parties had reached a proposed class settlement was untimely). The Court further finds that the parties offer no legitimate reasons for their delay. Therefore, the Court finds that Movants' motions to intervene are untimely.

ii. Sufficient Interest in the Litigation

Movants argue that they have an interest in the lawsuit to prevent notice from being sent to its ineligible employees. They do not substantiate why the employees would not be eligible to participate in the settlement. As the settlement is between Enbridge and Plaintiffs, the Court fails to see why employees of Onshore, Avery or MBF would be precluded from participation as Enbridge and Plaintiffs are of the position that participation would be permitted. As Enbridge argues, while it may have a right to try to enforce an arbitration agreement with an individual, it may still choose to enter into a settlement agreement with an individual who has an arbitration agreement. ECF No. 292 at 4 n.8. Movants have no right to prevent Enbridge from deciding whether and with whom it may settle. ECF No. 292 at 4.

The Court agrees with the opposition that the cases cited by Movants, In re JPMorgan Chase & Co., 916 F.3d 494 (5th Cir. 2019) and Bigger v. Facebook, Inc., 947 F.3d 1043 (7th Cir. 2020), are not relevant here. Those cases involved sending notice to an employee with a valid arbitration agreement as part of conditional certification. This case is in an entirely different posture. Notice is being sent to inform the employees of their ability to participate in the settlement agreement. While the arbitration agreements may have prevented the employees from litigating the case, they do not prevent them from participating in a settlement between Enbridge and Plaintiffs.

The Court notes that it did not find that the arbitration agreement precluded an Onshore employee from litigating a claim with Enbridge. It found that the issue of whether the arbitration agreement was a bar was required to be submitted to the arbitrator. ECF No. 182.

The Court agrees with Enbridge and thus finds that this prong has not been satisfied.

iii. The Interest May Be Affected by the Disposition of the Action

Movants argue that disposing of this lawsuit without their involvement would allow Plaintiffs to do an end run around their arbitration agreements with their employees. They argue that they do not intend to challenge the settlement agreement. What they are asking for is the ability to file a protective order as to the third-party subpoenas. First of all, the protective order can still be filed and may have been filed in the appropriate courts. The Court notes that Robertson ahs filed a Motion to Enforce Compliance with the third-Party Subpoena as to Avery in the District of Colorado. That matter has now been transferred to this Court for a ruling and Avery may raise its objections there. As all Movants are similarly situated, the issues raised by one, and any ruling by the Court, will apply to all. See ECF Nos. 305, 306.

Second, they fail to clarify how the settlement by Enbridge impairs their ability - or even requires them - to defend against claims that the compensation they-not Enbridge-paid, violated state and federal law. They have not been named in the lawsuit, and the case has been settled so there is no defense or action required on the part of the Movants.

Under this element of the test, the Movants must show that their legal interests “may be affected or impaired, as a practical matter by the disposition of the action.” Brody By & Through Sugzdinis v. Spang, 957 F.2d 1108, 1122 (3d Cir. 1992) (citations omitted). Movants have not shown that their legal interest will be affected or impaired by providing their employees notice of the settlement agreement.

iv. Interest Not Adequately Represented

The final prong is whether the Movants' interests are adequately represented. The burden is on the applicant to show that representation of its interests is inadequate based on “any of the following three grounds: (1) that although the applicant's interests are similar to those of a party, they diverge sufficiently that the existing party cannot devote proper attention to the applicant's interests; (2) that there is collusion between the representative party and the opposing party; or (3) that the representative party is not diligently prosecuting the suit.” Brody By & Through Sugzdinis, 957 F.2d at 1123.

Generally, the burden of showing the inadequacy of representation is on the movant and “should be treated as minimal.” Benjamin ex rel. Yock v. Dep't of Pub. Welfare of Pennsylvania, 701 F.3d 938, 958 (3d Cir. 2012) (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)) (additional citation and internal quotation marks omitted). The Court finds that Movants have not met their burden here. Earlier in the case, they may have had a better argument and, indeed, the undersigned found in the converse when considering the motions to intervene filed at the outset of the case, when legal claims were pending. At this point, however, no legal claims are pending. A settlement agreement has been reached and conditionally approved, no money is required from the Movants, Enbridge has chosen to settle. Basically, the Movants have no interest to be argued.

Therefore, all factors weigh against the allowance of intervention under Rule 24(a)(2) and the Court recommends that all Motions to Intervene on this basis be denied.

2. Rule 24(b) Permissive Intervention

Movants further argue that, if intervention as of right is in question, they should be allowed to intervene as a matter of permission. Rule 24(b)(1)(B) allows permissive intervention to anyone who timely asserts “a claim or defense that shares with the main action a common question of law or fact.” “Whether to grant permissive intervention under Rule 24(b), as the doctrine's name suggests, is within the discretion of the district court, and as noted above, this decision is reviewed only for abuse of discretion.” Brody By & Through Sugzdinis, 957 F.2d at 1124. “In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.” Fed.R.Civ.P. 24 (b) (3); see U.S. ex rel. FrankM. Sheesley Co. v. St. Paul Fire & Marine Ins. Co., 239 F.R.D. 404, 414 (W.D. Pa. 2006).

Movants assert only that the remaining issue, whether their employees will be part of the settlement class, is the precise reason they should be allowed to intervene. They further argue that there will be no prejudice. Plaintiffs respond that, given the procedural posture of the case, any common issues of law or fact are no longer being litigated. Enbridge argues that Movants have no interest in the matter at this juncture. Both argue that the motions are untimely and will delay the resolution and prejudice the parties.

The Court finds that all of these issues discussed above under intervention as of right, apply similarly here. At this stage in the litigation, the enforceability of any arbitration agreements is no longer an issue, settlement is imminent and intervention at this point would necessarily delay resolution.

III. CONCLUSION

For the reasons discussed above, after due consideration of the Motions to Intervene (ECF Nos. 286, 289 and 301) it is respectfully recommended that the Motions be denied.

In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.


Summaries of

Robertson v. Enbridge (U.S.) Inc.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
May 28, 2021
CIVIL ACTION NO. 2:19-CV-01080-LPL (W.D. Pa. May. 28, 2021)
Case details for

Robertson v. Enbridge (U.S.) Inc.

Case Details

Full title:ZACHARIAH ROBERTSON, Plaintiff, v. ENBRIDGE (U.S.) INC., Defendant.

Court:UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Date published: May 28, 2021

Citations

CIVIL ACTION NO. 2:19-CV-01080-LPL (W.D. Pa. May. 28, 2021)