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Cross Creek Multifamily, LLC v. ICI Construction, Inc.

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

September 23, 2019

CROSS CREEK MULTIFAMILY, LLC PLAINTIFF
v.
ICI CONSTRUCTION, INC. and HARTFORD FIRE INSURANCE COMPANY DEFENDANTS

          ORDER

          MICHAEL T. PARKER UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff’s Motion for Leave to File Amended Complaint [253] and the Motion to Intervene [265] filed by Pucciano & Associates, P.C. Having considered the parties’ submissions and the applicable law, the Court finds that the Motion to Intervene should be denied and the Motion for Leave to File Amended Complaint [253] should be granted.

         BACKGROUND

         On May 10, 2018, Plaintiff filed this action against Defendants ICI Construction, Inc. and its surety, Hartford Fire Insurance Company, asserting multiple claims arising from alleged construction defects in an apartment complex constructed by ICI Construction and owned by Plaintiff. Thereafter, ICI Construction asserted third-party claims against multiple subcontractors that performed work on the apartment complex, including All American Builders, Inc., Burris Contracting, LLC, Perren Masonry, LLC, RJM McQueen Contracting, Inc., Warner Construction Co. of MS, LLC, and Kimbel Mechanical Systems, Inc. ICI Construction asserts that the subcontractors are responsible for the alleged defects.

         On October 24, 2018, the Court entered a Case Management Order [39], which required the parties to file motions to amend or add parties by November 26, 2018. On August 16, 2019, Plaintiff filed a Motion to Amend [253], seeking to add as a defendant Pucciano & Associates, P.C. (“Pucciano”), the architectural firm for the apartment complex. According to Plaintiff, recent discovery caused it to determine that Pucciano is at least partially responsible for the alleged construction defects.

         Defendants ICI Construction and Hartford do not oppose the Motion to Amend [253]. The Third-Party Defendants are split, with Perren Masonry, LLC and Burris Contracting, LLC not opposing the Motion and RJM McQueen Contracting, Inc. and Kimbel Mechanical Systems, Inc. opposing the Motion.[1] Additionally, Pucciano filed a Motion [265], requesting that the Court allow it to intervene in this action for the limited purpose of objecting to the Motion to Amend [253].

         ANALYSIS

         Motion to Intervene [265]

         Federal Rule of Civil Procedure 24 provides for two types of intervention: intervention of right pursuant to Rule 24(a) and permissive intervention pursuant to Rule 24(b). Rule 24(a) provides as follows:

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.

Fed. R. Civ. P. 24(a)(2). The Fifth Circuit has stated that to intervene of right a movant must establish the following:

(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 ...


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