Opinion
Case No. A1-04-49, Docket Number: 23.
September 10, 2004
ORDER GRANTING MOTION TO INTERVENE AND MOTION TO AMEND COMPLAINT
Before the Court is a Motion to Intervene filed by Michael Vender-Dahl and a Motion to Amend Complaint, filed by the Plaintiff on August 20, 2004. For the reasons set forth below, the motions are granted.
I. BACKGROUND
The plaintiff, Ron Vander Wal, left his employment at Sykes Enterprises, Inc. ("Sykes) on January 23, 2003, when his South Dakota National Guard unit was deployed overseas. Vander Wal returned to the United States approximately fourteen months later. On March 31, 2004, Vander Wal applied for re-employment with Sykes, stating on his application that he would be available to return to work on May 4, 2004. On April 6, 2004, Vander Wal visited Sykes to inquire about his application. On April 23, 2004, Vander Wal contacted Sykes through his attorney to demand his immediate re-employment. On April 28, 2004, Vander Wal filed suit filed suit under the Uniformed Services Employment and Re-employment Rights Act, 38 U.S.C. § 4311. That same day Sykes wrote to Vander Wal to advise him that he was to report for work on May 4, 2004.
On August 20, 2004, Vander Wal and Michael Vender-Dahl filed a Motion to Amend Complaint to add Michael Vender-Dahl ("Vender-Dahl") as a plaintiff. In addition, Vender-Dahl filed a Motion to Intervene pursuant to Rule 24(b) of the Federal Rules of Civil Procedure. Like Vander Wal, Vender-Dahl left his employment with Sykes after his National Guard unit was deployed overseas. According to Vender-Dahl, he had difficulty getting his job back upon his return to the United States. Apparently, he visited Sykes around April 23, 2004, to inquire about re-employment. Although he indicated to Sykes that he was available to return to work on or before April 26th, he was told to report for work on May 4, 2004.
II. LEGAL DISCUSSION
Rule 24(b) of the Federal Rules of Civil Procedure provides that upon timely application anyone may be permitted to intervene in an action when (1) a statute of the United States confers a conditional right to intervene; or (2) the applicant's claim or defense to the main action have a question of law or fact in common. The decision to grant or deny a motion for permissive intervention is wholly discretionary. See South Dakota ex rel Barnett v. U.S. Dept. of Interior, 317 F.3d 783, 787 (8th Cir. 2003); see Bush v. Viterna, 740 F.2d 350, 359 (5th Cir. 1984) ("Permissive intervention is wholly discretionary with the district court even though there is a common question of law or fact, or the requirements of Rule 24(b) are otherwise satisfied."); 7C Wright, Miller Kane, Federal Practice and Procedure § 1913, pp. 376-377 ("If there is no right to intervene under Rule 24(a), it is wholly discretionary with the court whether to allow intervention under Rule 24(b) and even though there is a common question of law or fact, or the requirements of Rule 24(b) are otherwise satisfied, the court may refuse to allow intervention.").
The Defendants oppose the motions to amend and to intervene on the grounds that significant factual differences between the allegations of Vander Wal and Vender-Dahl exist and that their claims are based on separate legal arguments. In response, Vander Wal and Vender-Dahl contend that factual congruence is not required. In addition, they assert that the Defendants' opposition to their respective motions are more properly styled as arguments for judgment on the pleadings, an issue they maintain the Court implicitly decided in its Order of July 22, 2004 (denying the Defendants' Motion to Dismiss).
There is nothing to indicate, and neither Vander Wal nor Vender-Dahl has alleged, that the Uniformed Services Employment and Re-employment Rights Act confers a conditional right to intervene. However, it is clear that the claims of Vander Wal and Vender-Dahl have a common question of law in that both allege a violation of the Act. In addition, the circumstances out of which their claims arose are strikingly similar, namely, both Vander Wal and Vender-Dahl are members of the National Guard, albeit in different units; both were employed by Sykes until their respective units were deployed overseas; both sought reinstatement with Sykes upon their return to the United States in early 2004; and both were ultimately rehired by Sykes and told to report to work on May 4, 2004. The only distinct difference between their two experiences is the date on which each submitted their application for re-employment and the extent of communications each had with Sykes before being rehired and ordered to report to work. Vander Wal submitted an application to Sykes on March 31, 2004, and followed up with defendant Cassie Thompson, Sykes's Human Resources representative, on April 6, 2004. Vender-Dahl submitted an application for re-employment on or about April 22, 2004, but did not speak with anyone at Sykes until April 29, 2004, when he was contacted by Sykes and told he should return to work on May 4, 2004.
Given that the Vander Wal and Vender-Dahl are both alleging violations of the Uniformed Services Employment and Re-employment Rights Act, coupled with the similarities under which their claims allegedly accrued, the Court in its discretion finds that Vender-Dahl's intervention is permissible under Rule 24(b). Such intervention will not prejudice the Defendants as this case is still in its infancy.
III. CONCLUSION
The Motion to Intervene filed by Vender-Dahl and the Motion to Amend Complaint filed by the Vander Wal (Docket No. 16) are GRANTED. Vander Wal is directed to file an Amended Complaint with the Clerk of Court.