Opinion
No. 16-10347
03-27-2017
Stephanie ODLE, on behalf of herself and all others similarly situated, et al; Plaintiffs Wal-Mart Stores, Incorporated, Defendant - Appellee v. Oralia FLORES; Rosie Lujan; Alice Biscardi; Debbie Hayworth; Brenda Henderson; Linda Mcfadden; Margarita Murillo; Sandra Phelan, on behalf of themselves and others similarly situated, Movants - Appellants
Theodore J. Boutrous, Jr., Esq., Catherine Anne Conway, Esq., Attorneys, Gibson, Dunn & Crutcher, L.L.P., Los Angeles, CA, Rachel Susan Brass, Gibson, Dunn & Crutcher, L.L.P., San Francisco, CA, Michelle L. Maryott, Gibson, Dunn & Crutcher, L.L.P., Irvine, CA, Karl G. Nelson, Gibson, Dunn & Crutcher, L.L.P., Dallas, TX, Mark Andrew Perry, Gibson, Dunn & Crutcher, L.L.P., Washington, DC, for Defendant – Appellee WAL–MART STORES, INCORPORATED. Hal K. Gillespie, Gillespie Sanford, L.L.P., Dallas, TX, Joseph M. Sellers, Christine E. Webber, Cohen Milstein Sellers & Toll, P.L.L.C., Washington, DC, for Movants – Appellants.
Theodore J. Boutrous, Jr., Esq., Catherine Anne Conway, Esq., Attorneys, Gibson, Dunn & Crutcher, L.L.P., Los Angeles, CA, Rachel Susan Brass, Gibson, Dunn & Crutcher, L.L.P., San Francisco, CA, Michelle L. Maryott, Gibson, Dunn & Crutcher, L.L.P., Irvine, CA, Karl G. Nelson, Gibson, Dunn & Crutcher, L.L.P., Dallas, TX, Mark Andrew Perry, Gibson, Dunn & Crutcher, L.L.P., Washington, DC, for Defendant – Appellee WAL–MART STORES, INCORPORATED.
Hal K. Gillespie, Gillespie Sanford, L.L.P., Dallas, TX, Joseph M. Sellers, Christine E. Webber, Cohen Milstein Sellers & Toll, P.L.L.C., Washington, DC, for Movants – Appellants.
Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:
This is a case involving would-be plaintiff–intervenors who filed their motion to intervene after the district court had already entered a Rule 41(a)(1) stipulated dismissal of the plaintiffs’ claims. The district court believed it lacked jurisdiction to consider the motion. It did not have the benefit of Sommers v. Bank of American, N.A. , decided a few months later, which rejected the "suggest[ion] that intervention is always improper after a case has been dismissed." 835 F.3d 509, 513 (5th Cir. 2016). Sommers controls. The district court has jurisdiction to consider the would-be intervenors’ motion. See id. at 513 & n.5 ; see also Ford v. City of Huntsville , 242 F.3d 235, 238–40 (5th Cir. 2001).
In a Rule 28(j) letter, appellee Wal-Mart Stores, Inc. ("Wal-Mart") asserts that Sommers is contrary to prior opinions of this Court and must be disregarded under the rule of orderliness. See Arnold v. U.S. Dep’t of Interior , 213 F.3d 193, 196 n.4 (5th Cir. 2000) ("[U]nder the rule of orderliness, to the extent that a more recent case contradicts an older case, the newer language has no effect."). But Sommers reconciled those supposedly problematic cases, see 835 F.3d at 513 n.5, and Wal-Mart’s arguments amount to a request that we second-guess Sommers . That the rule of orderliness prohibits.
Other cases cited by Wal-Mart but not mentioned by Sommers do not alter our conclusion. Wal-Mart cites Gaines v. Dixie Carriers, Inc., for the proposition that "when a case is dismissed by joint consent the intervention falls with it." There, we noted that "Appellee’s brief suggests that the case having been dismissed by joint consent the intervention falls with it," but we rejected the contention. Gaines , 434 F.2d 52, 54 (5th Cir. 1970). Meinecke v. H & R Block of Houston, 66 F.3d 77 (5th Cir. 1995) (per curiam), United States v. Kellogg (In re West Texas Marketing Corp. ), 12 F.3d 497, 501 (5th Cir.1994), and Williams v. Ezell , 531 F.2d 1261 (5th Cir. 1976), have nothing to do with intervention or the particular jurisdictional question here presented and are not inconsistent with Sommers .
According to Wal-Mart, Sommers also indicates that the would-be intervenors’ motion is untimely. This is consistent with its merits brief, which flagged but reserved arguments that the would-be intervenors have simply failed to comply with Rule 24 and, specifically, "cannot satisfy" its "timeliness requirement." According to Wal-Mart, if jurisdiction is found to exist, we should remand for consideration of Rule 24’s basic requirements.
We agree. On appeal, the would-be intervenors have argued that the district court previously erred by dismissing the original plaintiffs’ class claims as untimely based on its determination that equitable tolling of the statute of limitations under American Pipe and Construction Co. v. Utah , 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), is improper in a subsequent class action. But making this argument is the would-be intervenors’ very object, their self-declared "purpose" of intervening. We will not skip ahead to answer the merits question while the would-be intervenors’ status is in doubt. Nor do we express any opinion on whether intervention is warranted.
We VACATE the district court’s order denying intervention on jurisdictional grounds and REMAND for further proceedings. The motion for leave to intervene should be considered under Rule 24.