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Gray v. Alabama Great Southern Railroad Co.

United States District Court, S.D. Mississippi, Eastern Division

March 17, 2017

SHAQUERE MYLESHIA GRAY and HANNAH LASHA HOZE Co-Administratrices of the Estate of Gregory Tramaine Miller PLAINTIFF
v.
ALABAMA GREAT SOUTHERN RAILROAD COMPANY DEFENDANT

          ORDER

          MICHAEL T. PARKER UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on the Motion to File Intervention [65] filed by the law firm of Davis, Saunders, Miller & Oden PLC (“DSMO”). Having considered the Motion [65] and the record, the Court finds that the Motion [65] should be denied.

         This action arises from the death of Gregory Tramaine Miller, who was allegedly killed as a result of an accident which occurred while he was working as an employee of Defendant Alabama Great Southern Railroad Company. See Complaint [1]. On September 22, 2015, the Wayne County Chancery Court appointed Miller's mother, Mona Shea Miller, as adminstratrix of the Estate of Gregory Tramaine Miller. See Exhibit [54-1]. Thereafter, Mona Shea Miller, represented by DSMO, filed this wrongful death action under the Federal Employers' Liability Act (“FELA”), 45 U.S.C. § 51 et seq.

         In late 2015, it was determined that the decedent was the biological father of minor children ZKG and GTH, and on May 24, 2016, the Wayne County Chancery Court determined that ZKG and GTH are the only heirs at law and wrongful death beneficiaries of the decedent. See Exhibit [54-1]. On June 10, 2016, Letter of Administration were issued by the state court, appointing the mother of ZKG-Shaquere Myleshia Gray-and the mother of GTH-Hannah Lasha Hoze-as co-administratrices of the decedent's estate. Id.; Exhibit [54-2].

         Thereafter, counsel for Gray and Hoze entered an appearance in this action and filed a Motion [54] seeking to substitute Gray and Hoze as the proper party in place of Mona Shae Miller. On November 22, 2016, the Court granted the Motion [54] and substituted Grey and Hoze as the proper Plaintiffs in place of Mona Shae Miller. See Order [56].

         On January 31, 2016, DSMO filed the instant Motion [65], seeking to intervene in this action in order to recover “reasonable attorney's fees and monies expended during its prosecution of the present Federal Employer's Liability Act (“FELA”) litigation while representing the former-proper party Plaintiff and Personal Representative, Mona Miller.” DSMO seeks to intervene as of right in this action pursuant to Federal Rule of Civil Procedure 24(a). Alternatively, DSMO seeks a permissive intervention pursuant to Rule 24(b). Federal Rule of Civil Procedure 24(a)(2) provides:

On timely motion, the court must permit anyone to intervene who:
. . .
(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.

         According to Fifth Circuit precedent, in order to intervene as a right, a movant must meet the following four prerequisites:

(1) the application for intervention must be timely; (2) the applicant must have an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair his ability to protect that interest; (4) the applicant's interest must be inadequately represented by the existing parties to the suit.

Taylor Commc'ns Grp., Inc. v. Southwestern Bell Tel. Co., 172 F.3d 385, 387 (5th Cir. 1999). A movant's “[f]ailure to meet any one of these requirements is fatal to a claim of intervention as of right.” Id.

         Federal Rule of Civil Procedure 24(b)(1)(B) provides that “[o]n timely motion, the court may permit anyone to intervene who: . . . has a claim or defense that shares with the main action a common question of law or fact.” “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). Even if the requirements of Rule 24(b)(1)(B) are satisfied, permissive intervention is wholly discretionary with the court. New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 470-71 (5th Cir. 1984).

         Approval from the Wayne County Chancery Court is required for any award of attorney fees derived from proceeds attributable to decedent's minor children. See Foster v. Kotsakos, 147 So.3d 896, 898 (Miss. App. 2014; Willing v. Estate of Benz, 958 So.2d 1240, 1255-56 (Miss. App. 2007). The chancery court has the authority to ...


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