In Re Randolph Scott By Next Friend
| Decision Date | 18 February 2011 |
| Docket Number | Case number 4:10cv1578 TCM |
| Parties | IN RE RANDOLPH SCOTT BY NEXT FRIEND and SPECIAL ADMINISTRATOR VIANNA SIMMONS, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on a motion to intervene as a plaintiff filed by Randolph Scott, Sr. (Intervenor) pursuant to Federal Rule of Civil Procedure 24 (Rule 24) [Doc. 3] and on Intervenor's motion to stay proceedings [Doc. 51].
This damages action arises out of the death in St. Louis, Missouri, of minor Randolph Scott as the alleged result of a shooting by a Park Ranger for the National Park Service, Defendant Josh Updegraff, who was allegedly acting within the scope of his employment and supervised and trained by Defendants Beth Stout, an Assistant Chief Ranger for the National Park Service, and Scott Karrigan, a Supervisory Park Ranger, at the time of the shooting.1 (See ¶¶ 4-7 and 10 of the Compl. as admitted by Defendant United States of America (the Government) [Docs. 1 and 21].) Counts I through IV of the complaint present claims underthe Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., for assault and battery, negligence, and negligent supervision and failure to train (Compl. at 1-12 [Doc. 1]), while Counts V through VIII of the complaint present claims under the Fourth, Fifth, and Eighth Amendments to the United States Constitution ("constitutional claims") (id. at 12-14). Each count of the complaint alleges that the minor's death occurred as a result of the relevant Defendant's conduct. (Id. ¶¶ 15, 38, 45, 46, 51, as well as those paragraphs as incorporated into the constitutional claims at ¶¶ 54, 56, 58, and 60.)
Vienna Simmons (Simmons), whose request to be appointed the minor decedent's next friend for purposes of prosecuting this lawsuit was granted (see Doc. 28), is the natural mother of the decedent.2 There is no dispute that, before filing this lawsuit, Simmons timely filed an unsuccessful administrative claim with the United States National Park Service. By that claim Simmons, as mother of decedent, sought relief for her son's wrongful death, and did not present any claim for personal injury or in any capacity other than as decedent's mother. (Id.; Simmons' Br. Oppos. Mot. Intervene [Doc. 48].)3 Simmons did not identify Intervenor in her administrativeclaim, either by name or by relationship to the decedent. .) Intervenor is also not identified in Simmons' complaint, either by name or relationship to the decedent. (Compl. [Doc. 1].)
Intervenor reports he is the natural father of the minor decedent. (Mot. Intervene ¶ 2 [Doc. 3].) No party disputes Intervenor's status as the minor decedent's father.
In his motion to intervene, Intervenor first urges he is entitled to intervene as of right under Rule 24(a) because, while not mentioned in the complaint, the claims pursued by Plaintiff are wrongful death claims under Missouri law and, as the father of the minor decedent, his rights will be impaired and are not adequately represented without intervention. Alternatively, Intervenor seeks permissive intervention under Federal Rule of Civil Procedure 24(b) because his claims share a common question of fact or law with those in the complaint and his intervention will not unduly delay or prejudice the adjudication of the pending claims. The Government opposes the motion only to the extent Intervenor requests intervention with respect to the claims pursued under the FTCA, on the ground that Intervenor did not file an administrative claim regarding the minor's death and is time-barred from filing one now. Simmons adopts and reiterates, in large part, the Government's response in opposition to the intervention motion with respect to the FTCA claims. With respect to the constitutionalclaims, Simmons opposes intervention on the grounds Intervenor's participation "will inject confusion at a trial" and is not necessary because, pursuant to Missouri's wrongful death statute, Mo. Rev. Stat. § 537.080 et seq., only one wrongful death action may be brought against any one defendant for a person's death and Intervenor may participate in a judicial hearing for distribution and apportionment of any proceeds resulting from this wrongful death lawsuit, see, e.g., Mo. Rev. Stat. § 537.095.2.
Rule 24. For intervention as of right under Rule 24(a), the intervenor must file a timely motion and satisfy all three conditions set forth in the Rule, i.e., showing the intervenor's interest in the action, that the interest may be impaired by disposition of the case, and that the interest is not adequately protected by a current party to the litigation. South Dak. ex rel. Barnett v. United States Dep't of Interior, 317 F.3d 783, 785 (8th Cir. 2003). Under the terms of Rule 24(b), a court may grant a timely application for permissive intervention when the intervenor's claim and the main lawsuit have a question of law or fact in common, so long as in the exercise of its discretion the court finds the intervention will not "unduly delay or prejudice" the adjudication of the original litigants' rights. Rule 24 is "to be liberally construed with all doubts resolved in favor of the proposed intervenor." South Dak. ex rel. Barnett, 317 F.3d at 785.4
The question of a Rule 24 motion's timeliness must be the first issue reached. NAACP v. New York, 413 U.S. 345, 365 (1973); United States v. Ritchie Special Credit Invs., 620
F.3d 824, 832 (8th Cir. 2010). The motion's "[t]imeliness is... determined from all the circumstances." NAACP, 413 U.S. at 366; Ritchie Special Credit Invs., 620 F.3d at 832 (quoting NAACP, 413 U.S. at 366)). To determine timeliness, the court should consider "'[(1)] how far the litigation had progressed at the time of the motion for intervention, [(2)] the prospective intervenor's prior knowledge of the pending action, [(3)] the reason for the delay in seeking intervention, and [(4)] the likelihood of prejudice to the parties in the action.'" Ritchie Special Credit Invs., 620 F.3d at 832 (alterations in original) (quoting Minnesota Milk Producers Ass'n v. Glickman, 153 F.3d 632, 646 (8th Cir. 1998)).
The record shows that the motion was filed less than thirty days after this lawsuit was filed, before all defendants were served, before any answer was filed, and before any substantive matters were presented by the parties or addressed by the Court. Simmons does not contest the Intervenor's remarks that she misled him or did not communicate with him about the filing of her administrative claim and of this lawsuit. Under all the circumstances, the Court concludes the motion to intervene was timely filed.
The Court will first consider the motion under the terms of Rule 24(b) for permissive intervention. A court's consideration of permissive intervention under Rule 24(b) is "wholly discretionary." South Dak. ex rel. Barnett, 317 F.3d at 787. "The principal consideration in ruling on a Rule 24(b) motion is whether the proposed intervention would unduly delay or prejudice the adjudication of the parties' rights, " and consideration of the "adequacy of [the] protection [of the intervenor's rights by existing litigants] is only a minor variable" under this Rule. Id. In view of the status of these proceedings with discovery ongoing, dispositivemotions not due until December 31, 2011, the jury trial scheduled for April 2012, and the pendency of a recently filed motion to dismiss or for summary judgment that is not yet ready for consideration by the Court, the Court concludes granting the motion will not unduly delay or prejudice the adjudication of the original parties' rights. See e.g. Case Management Order, dated January 14, 2011 (Doc. 35). Moreover, the death of Intervenor's and Simmons' minor son, which forms the basis of all the claims in this lawsuit, is the focus of Intervenor's interest in this litigation. As shown in the discussion below, Intervenor's claims share questions of law and fact in common with Simmons' claims. Therefore, the Court will grant permissive intervention to the extent Intervenor may pursue the claims in this lawsuit. See discussion below regarding what claims Intervenor may pursue. Having determined that intervention under Rule 24(b) is proper, the Court will not address Intervenor's motion to the extent it seeks intervention as of right under Rule 24(a).
The FTCA Claims. "The United States may be held liable for negligent or wrongful acts by federal employees committed while acting within the scope of their employment under the FTCA." Washington v. Drug Enforcement Admin., 183 F.3d 868, 873 (8th Cir. 1999). Specifically, federal district courts are granted jurisdiction over civil damages actions against the federal government
for personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674 (). "The 'law of the place' [in § 1346(b)(1)] refers to the substantive law of the state where the wrongful conduct took place."5 Washington, 183 F.3d at 873 (citing FDIC v. Meyer, 510 U.S. 471, 477-78 (1994)). Therefore, the Government's liability under the FTCA depends upon the substantive law of the state where the alleged incident took place. Because the shooting...
To continue reading
Request your trial