Connie Jean Smith, Individually and on behalf of all others similarly situated Plaintiff- AppelleeJeannie Vanette Hill Thomas Intervenor Plaintiff- Appellant
SEECO, Inc., Now known as SWN Production (Arkansas), LLC; Desoto Gathering Company, LLC; Southwestern Energy Services Company; Southwestern Energy Company Defendants - Appellees
Submitted: April 4, 2017
from United States District Court for the Eastern District of
Arkansas - Little Rock
COLLOTON, BEAM, and BENTON, Circuit Judges.
Vanette Hill Thomas appeals the district court's denial
of her motion to intervene in Connie Jean Smith's class
action against SEECO, Inc., Desoto Gathering Company, LLC,
Southwestern Energy Services Company, and Southwestern Energy
Company (collectively, Appellees). Thomas moved to intervene
based on her interest in adequacy of representation by the
class representative and class counsel. We conclude that the
district court's determination on this question was
final, and that the district court's rationale for
denying the motion was inadequate. We therefore remand the
motion for further consideration. Thomas also moved to
intervene based on her interest in the adequacy of notice and
opt-out procedures for the class. The district court's
determination on this issue was not final, so we dismiss this
aspect of the appeal for lack of jurisdiction.
is a member of a certified class in Smith's class action
against Appellees for allegedly inflating deductions from
royalty payments due under oil and gas leases. After class
certification under Federal Rule of Civil Procedure 23(b)(3)
and the submission of a proposed notice, but before the
district court approved the notice, Thomas moved to
intervene, both as of right and, in the alternative,
permissively. She sought to challenge the adequacy of
representation by the class representative and counsel, and
she challenged the proposed notice. Specifically, she alleged
that the defendants, class counsel, and class counsel in a
parallel state case colluded so as to create a conflict of
interest rendering class representation inadequate. She also
alleged that certain of class counsel were found to have
violated Federal Rule of Civil Procedure 11 in an unrelated
class-action case. See Adams v. United Servs. Auto.
Ass'n, No. 2:14-cv-02013, 2016 WL 1465433 (W.D. Ark.
Apr. 14, 2016), rev'd sub nom. Adams v. USAA Cas.
Ins. Co., No. 16-3382, No. 16-3482, 2017 WL 3136919 (8th
Cir. July 25, 2017). Thomas also alleged the notices
contained unnecessary and onerous requirements for opting
out. She sought to have the district court stay the notice
procedure while it held a hearing and ruled on the effect of
these matters on the adequacy of representation and pending
the Adams court's imposition of sanctions. If
the notices went ahead, she sought to include in them
disclosure of the conflict-of-interest and Rule 11
violations. Finally, she sought an order compelling
production of any agreements or memoranda between class
counsel and any of the defendants, counsel for defendant, or
counsel in the parallel state case.
district court denied the motion to intervene because
"intervention is either unnecessary or premature."
It noted that Thomas was free to pursue her claim with
different counsel by opting out and that objection to the
proposed notice was premature because it had not yet been
approved or distributed. The district court concluded that
"the intervenor['s] position that the opt out
procedures are 'onerous' or that [she] cannot opt out
is premature because those procedures have not been finalized
and the intervenor [has] not had the opportunity to comply
with them." It therefore denied the motion without
prejudice. Thomas appeals, pressing only the district
court's denial of her motion to intervene as of right.
and Smith argue that we lack jurisdiction to hear this appeal
because the district court's denial of Thomas's
motion to intervene was made without prejudice, and is
therefore not a final decision. Our jurisdiction in this case
is bottomed upon 28 U.S.C. § 1291, which permits us to
review "final decisions" by the district court. The
general rule is that a final decision under that section is
one that "ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment."
Dieser v. Cont'l Cas. Co., 440 F.3d 920, 923
(8th Cir. 2006) (quoting Borntrager v. Cent. States, Se.
& Sw. Areas Pension Fund, 425 F.3d 1087, 1091 (8th
Cir. 2005)). As to a district court's denial of a motion
to intervene as of right under Federal Rule of Civil
Procedure 24(a), we have repeatedly stated the well-settled
rule that "[t]he denial of a motion to intervene of
right is immediately appealable as a final judgment."
United States v. Geranis, 808 F.3d 723, 727 (8th
Cir. 2015) (reviewing denial of motion to intervene as of
right for lack of Article III standing); see also FTC v.
Johnson, 800 F.3d 448, 451 (8th Cir. 2015) (on merits);
ACLU of Minn. v. Tarek ibn Ziyad Acad., 643 F.3d
1088, 1092 & n.2 (8th Cir. 2011) (standing); United
States v. Metro. St. Louis Sewer Dist., 569 F.3d 829,
833 (8th Cir. 2009) (standing); S.D. ex rel. Barnett v.
United States Dep't of Interior, 317 F.3d 783, 785
& n.2 (8th Cir. 2003) (adequacy); Mausolf v.
Babbitt, 85 F.3d 1295, 1298 (8th Cir. 1996) (adequacy);
EPA v. City of Green Forest, Ark., 921 F.2d 1394,
1401-02 (8th Cir. 1990) (district court's jurisdiction);
Corby Recreation, Inc. v. General Elec. Co., 581
F.2d 175, 176 n.1 (8th Cir. 1978).
this precedent would appear to settle the issue of our
jurisdiction (at least as to intervention as of right), it is
important to observe that the denials appealed from in these
and other cases from our circuit, to the extent the matter
was discussed, constituted the district court's
conclusive ruling that a movant would not be permitted to
become a party to the case. A movant's failure to, for
example, possess Article III standing or meet the
requirements of Rule 24(a), is not an infirmity that will
evolve as the circumstances or stages of litigation in the
case progress. In such a situation, because the movant
"cannot appeal from any subsequent order or judgment in
the proceeding unless he does intervene, the order denying
intervention has the degree of definitiveness which
supports an appeal therefrom." Bhd. of R.R. Trainmen
v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 524
(1947) (emphasis added). Requiring finality is consistent
with the Supreme Court's observation that appealability
from the denial of a motion to intervene is, like the
collateral-order doctrine, "one of the narrow categories
of decisions that we have deemed final for purposes of
review, even though the entire dispute has not yet been
resolved." Stringfellow v. Concerned Neighbors in
Action, 480 U.S. 370, 375 (1987); id. at 377
("[W]hen an order prevents a putative intervenor from
becoming a party in any respect, the order is
subject to immediate review."). Where, instead, the
district court provisionally denies intervention of right,
indicating that the right may materialize later in the
litigation, permitting the movant to appeal would undermine
the objectives of § 1291's "firm finality
principle": preventing piecemeal litigation and
preserving the partitioned relationship between trial and
appellate courts. Microsoft Corp. v. Baker, No.
15-457, slip op. at 2-4 (June 12, 2017).
we agree with Appellees and Smith that the district
court's order, made without prejudice and inviting Thomas
to reassert her right to intervene at a later time, warrants
a closer look to determine if the requisite finality is
present for purposes of our jurisdiction. As the Seventh
Circuit has observed, the words "without prejudice"
should not be given "talismanic importance, "
United States v. City of Milwaukee, 144 F.3d 524,
528 n.7 (7th Cir. 1998); the issue is whether, as a practical
matter, the order amounts to a "final decision"
under § 1291 with respect to the movant and her claimed
right to intervene. Cf. Great Rivers Coop. of Se. Iowa v.
Farmland Indus., Inc., 198 F.3d 685, 689 (8th Cir. 1999)
("A dismissal without prejudice can be an appealable
final order."). Because Thomas moved to intervene under
Rule 24(a)(2), her asserted right to intervene arises out of
a claimed interest.Her motion claimed two: (1) her interest in
adequate representation by the class representative and
counsel; and (2) her interest in notice and opt-out
procedures that are informative and non-onerous.
respect to adequacy, the district court stated in its order,
"[i]f class members are not satisfied by class counsel
or they wish to pursue their claims with different counsel,
they may opt out." It is apparent that the district
court considered opting out, rather than intervention, to be
the appropriate way for Thomas to protect her interest in
adequate representation, and that this was a final conclusion
not subject to later events in the litigation. This
determination seems to us to contain the necessary finality
for § 1291.
conclude that the district court gave an inadequate rationale
for denying Thomas's motion to intervene as of right
based on her interest in the adequacy of representation.
Although some district courts, like the district court here,
have ruled that class members are not entitled to intervene
because they can protect their interests by opting out of the
class, we think this reasoning is flawed. As one leading
treatise explains, SEECO's proposed reading of Rule 24
"is surely wrong: it would mean a class member could
never intervene in a (b)(3) class action (since she can
always opt out), yet both Rule 23 and the history of Rule 24
explicitly envision intervention as a means of securing
adequacy of representation." 3 William B. Rubenstein,
Newberg on Class Actions § 9:34 (5th ed. 2013 &
Supp. 2017). Rule 23(d)(1)(B)(iii) provides that the court
may issue orders that give class members notice of their
opportunity "to intervene and present claims or
defenses, or to otherwise come into the action." Rule
23(c)(2)(B)(iv), applicable to Rule 23(b)(3) classes like
this one, states that notice to class members must explain
"that a class member may enter an appearance through an
attorney if the member so desires." When Rule 24 on
intervention was amended in 1966, the advisory committee
specifically contemplated that "a member of a class
should have the right to intervene in a class action if he
can show the inadequacy of the representation of his interest
by the representative parties before the court."
Fed.R.Civ.P. 24 advisory committee's note to 1966
amendment. These provisions and notes would be unnecessary if
intervention as of right could be rejected simply because a
class member may opt out and litigate separately.
Accord 7B Charles Alan Wright, Arthur R. Miller
& Mary Kay Kane, Federal Practice and ...