Abraham Wallace et. al. v. NCL (Bahamas) Ltd. – Part 1

Lipcon, Margulies, Alsina & Winkleman, P.A

April 06, 2011

Abraham Wallace et. al. v. NCL (Bahamas) Ltd. – Part 1

Plaintiff Intervenors Motion to Intervene

In this motion to intervene, fellow crew members of an already existing group of seaman pursuing a lawsuit for wrongfully withheld wages, are petitioning the Court for the right to join a case that is already underway. The petitioning crew members argue that their claims are so similar to those plaintiffs in the existing action that they would not be in the interests of justice and fairness to file separate lawsuits.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 09-21814-CIV-JORDAN
ABRAHAM WALLACE, et. al.,
Plaintiffs

v.

NCL (BAHAMAS) LTD.,
Defendants.
________________________________________/

PLAINTIFF-INTERVENORS’ MOTION TO INTERVENE

Plaintiff-Intervenors (former proposed class members), Ian Wallace, Warren King, Christopher McKen, Kittsroy Smith, Dwane Ainsley, Barrington Brown, Hopeton Sinclair, Enrique A. Ellis, Cecil Thorpe, Kelsey Bodden, Jose Sabillon, Michael Mathews, Carl B. Stanford, Horace Lawson, Angel Quintos, Alicia A. Adriano, Ferris Lee, Pierre Pradel, Antoine Dorisman, Joseph Cherizard, Victor F. Mcintonsh, Merrel Bodden, Anderson Phillip, Sandro G. Ambrusly, Clark Cleveaux, Carlos Sewelly, Roberto Burrel, Alex Ang, Merito Chavez, Jaime S. Cruz, Huberto C. Allen, Jonald Cabunoc, Jorge Martinez Fox, Deinael J. Brown, Raul Denis McElroy, Denson Robinson, Jennelie Ramos, Lukman Nasrullah, Ruelo Brosas, Francisco A. Duffis, Bruce Shortte, Constante Bautista, Gerald Gutierrez, Erick Miller, William Joseph, Aaron Walker, Gerardo Nazario, Annajib Fnu, Devon Bedward, Joel Cachapero, Noel Lever O’Neil, Antonio Brown, Procopio Bueno, Sumarjana Nengah, Levi Williams, Boris Jiminez, Charlie Brown Sinclair, hereby move to intervene as of right pursuant to Federal Rule of Civil Procedure 24(a), or in the alternative, seek permissive intervention pursuant to Federal Rule of Civil Procedure 24(b). In support thereof, Plaintiff-intervenors allege as follows:

I. BACKGROUND

A. The Claims.

This case arises out of Defendant NCL’s systematic exploitation of thirty-two (32) named Plaintiffs, and fifty-seven (57) Plaintiff-intervenors. The claims in this matter deal with NCL depriving Plaintiffs and the Plaintiff-Intervenors of their wages. Discovery revealed that NCL willfully created a scheme which saved NCL millions of dollars by depriving its Senior Stateroom Stewards of their earned wages. In short, NCL assigned to its Senior Stateroom Stewards an amount of work on ship embarkation days that could not feasibly be completed in the time allotted by NCL without additional help. The unreasonable amount of work and the short time frame, forced the Plaintiffs and the Plaintiff-Intervenors to hire additional help on embarkation days to complete the required tasks; and NCL effectively required the Senior Stateroom Stewards to pay for the additional help out of their paychecks. This scheme was practiced fleet-wide and effectively deprived this class of persons of roughly 25% of their earned wages. At all times material, NCL’s policies and practices amounted to a breach of Plaintiffs and the Plaintiff-Intervenors employment contracts (including two Collective Bargaining Agreements), and was a violation of the Seaman’s Wage Act, 46 U.S.C. 10101, et. seq.

B. The Court’s Rulings on NCL’s Motion for Summary Judgment

On September 27, 2010, this Honorable Court partially denied NCL’s Motion for Summary Judgment and held: 1) that the plaintiffs have put forth sufficient evidence to raise a material issue of fact as to whether NCL had an unwritten policy of refusing to allow the plaintiffs to keep their wages, such that NCL de facto refused to pay full wages; and 2) that there is a material issue of fact as to whether NCL had an unwritten policy of requiring the plaintiffs to hire extra workers such that they were denied their full wages. [ See D.E. 222, at pg. 9]. Subsequently, on November 9, 2010, in its Order denying NCL’s Motion for Reconsideration, the Court further held that: 1) the plaintiffs have provided evidence that superiors required them to hire additional helpers; and that the plaintiffs would have to clean each assigned stateroom in about six minutes, an impossibly short time frame; 2) evidence exists that NCL required the plaintiffs to hire helpers and that the plaintiffs had to clean rooms in an impossible time frame; and that 3) there is a material issue of fact both on whether NCL reasonably believed that the employees did not need to hire helpers and on whether NCL required employees to hire helpers and did not pay them. [ See D.E. 242].

After resolution of the motions to dismiss and for summary judgment, Plaintiffs’ remaining claims are: (1) Count II, the claim under the Seaman’s Wage Act and (2) Count IV, the claim for breach of the covenant of good faith and fair dealing in connection with the Defendants alleged failure to pay full wages.[1]

C. The Court’s Rulings on Plaintiff’s Motion for Class Certification.

On November 18, 2010, Magistrate Judge McAliley provided her Report and Recommendations (“R&R”) on Plaintiffs’ Motion for Class Certification [D.E. 248]. Pursuant to Federal Rule of Civil Procedure 23(a), Magistrate Judge McAliley held that Plaintiffs satisfied numerosity, commonality, and typicality. Magistrate McAliley further held that class counsel was adequate. However, the report also found that Plaintiffs could not satisfy the predominance and superiority requirements set forth in Rule 23(b)(3). On December 31, 2010, this Honorable Court adopted the Magistrate’s Report and Recommendations and Denied Plaintiffs’ Motion for Class Certification. [D.E. 269]. Subsequently, on March 15, 2011 this Honorable Court denied Plaintiff’s Motion for Reconsideration of the Court’s Order Denying Class Certification [D.E. 274]. In light of the Courts order denying reconsideration, Plaintiff-interevenors (“formerly proposed class members”) hereby move to intervene in the action.

II. THE ABOVE NAMED PLAINTIFF-INTERVENORS (“FORMERLY PROPOSED CLASS MEMBERS”) HEREBY MOVE TO INTERVENE, AS OF RIGHT, PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 24(A); OR IN THE ALTERNATIVE, SEEK PERMISSIVE INTERVENTION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 24(B).

A. Plaintiff-Intervenors (Former “proposed class members”) may Intervene as a Matter of Right, pursuant to Federal Rule of Civil Procedure 24(a).

Rule 24(a)(2) permits parties to intervene as a matter of right under certain conditions:

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

The Eleventh Circuit has interpreted this rule to require a party seeking intervention of right to demonstrate that: “(1) his application to intervene is timely; (2) he has an interest relating to the property or transaction which is the subject of the action; (3) he so situated that disposition of the action, as a practical matter, may impeade or impair his ability to protect that interest; and (4) his interest is represented inadequately by existing parties to the suit. Stone v. First Union Corporation of Florida, et. al., 371 F. 3d 1305 (11th Cir. 2004), citing Worlds v. Dept. of Health and Rehabilitative Servs., 929 F. 2d 591, 593 (11th Cir. 1991).

In evaluating whether these requirements are met, courts are guided primarily by practical and equitable considerations. United States of America v. Board of Police Commissioners, 288 F. 3d 391 (9th Cir. 2002). Further, courts generally construe the Rule broadly in favor of proposed intervenors. Id., at 397. See In re Lease Oil Antitrust Litigation, 570 F. 3d 244, 249 (5th Cir. 2009) (Rule 24 should be construed liberally and doubts resolved in favor of the proposed intervenor).

i. This Motion to Intervene is timely. At all times material, the Intervenors – as proposed class members – relied on the named Plaintiffs to represent their interests. Once the Plaintiff-intervenors became aware that their interests would not be represented by the named Plaintiffs (after this Court entered its final pronouncement on class certification on March 15, 2011), they promptly moved to intervene.

“Timeliness” is not a word of exactitude or of precisely measurable dimensions. Walker v. Jim Dandy Co., 747 F. 2d 1360, 1366 (11th Cir. 1984) (citing McDonald v. E.J. Lavino Co., 430 F. 2d 1065, 1074 (5th Cir. 1970). Rather, “[i]n assessing timeliness the district court must[2] consider the following four factors: (1) the period of time during which the putative intervenor knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene; (2) the degree of prejudice to the existing parties as a result of the would-be intervenor’s failure to move to intervene as soon as he knew or reasonably should have known of his interest; (3) the extent of the prejudice to the would-be-intervenor if his position is denied; and (4) the presence of unusual circumstances militating either for or against the determination that the application is timely. Walker, 747 F. 2d 1360, 1366 (11th Cir. 1984) (citing Stallworth v. Mosanto Co., 558 F. 2d at 264-66 (5th Cir. 1977) (emphasis added).

Furthermore, “the requirement of timeliness must have accommodating flexibility toward both the court and the litigants if it is to be successfully employed to regulate intervention in the interests of justice.” Chiles v. Thornburgh, 865 F. 2d 1197, 1213 (11th Cir. 1989).

First “timeliness” factor. The first factor is “[t]he length of time during which the would-be intervenor actually knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene.” In re Lease Oil Antitrust Litigation, 570 F. 3d 244, 249 (5th Cir. 2009) (citing Stallworth, 58 F. 2d at 264-66 (5th Cir. 1977)). The time that the would-be intervenors become aware of the pendency of the case is not relevant to the inquiry. Stallworth, at 264. In Stallworth, the former Fifth Circuit[3] made clear that courts should discourage premature intervention that wastes judicial resources. Id. at 265. A better gauge of promptness is the speed with which the would-be intervenor acted when it became aware that its interests would no longer be protected by the original parties. Id., at 264.

Accordingly, “[t]he timeliness clock does not start running until the putative intervenor knows that class counsel will not represent his interest.” In re Lease Oil Antitrust Litigation, at 249 570 F. 3d 244, 249 (5th Cir. 2009) (emphasis added).[4]

Here, this Honorable Court entered its final pronouncement regarding class certification, (denying Plaintiffs’ Motion for Reconsideration of the order denying Class Certification [D.E. 274]), on March 15, 2011. It was at this point that the Plaintiff-intervenors learned that the named-plaintiffs would not represent their interest in the action, and that they were no longer “proposed class members.” Because the timeliness clock does not start running until the putative intervenors know “that the class will not represent their interest;” the timeliness clock began to run on March 15, 2011. Plaintiff-intervenors filed this Motion for Intervention on April 6, 2011. As such, 22 calendar days (or 16 working days)is the actual length of time the Intervenor-Plaintiffs have known of their interest before they filed their petition for leave to intervene. Therefore, the Intervening Plaintiffs have brought their motion with reasonable promptness, by moving to intervene when they became aware that their interest would not be protected by the original parties. See Sierra Club v. Espy, 18 F. 3d 1202 (5th Cir. 1994):

In Stallworth, 558 F. 2d at 264, we rejected the notion that the date on which the would-be intervenor became aware of the pendency of the action should be used to determine whether it acted promptly. Courts should discourage premature intervention that wastes judicial resources. Id. at 265. A better gauge of promptness is the speed with which the would-be intervenor acted when it became aware that its interests would no longer be protected by the original parties. Id., at 264.   

See also Florida Pediatric Society v. Secretary of the Florida Agency for Health Care, 2008 WL 4072805 05-23037-CIV-JORDAN/McAliley (S.D. Fla. 2008) (“On this record, this Court finds that the Intervening Plaintiffs brought their Motion within reasonable promptness once it became apparent that the class representatives may have difficulty satisfying the requirements of Rule 23. This factor, thus, weighs in favor of finding the motion timely”).

Second “timeliness” factor: There is no prejudice to existing parties. The second timeliness factor weighs the prejudice to existing parties caused by the delay in seeking intervention. Pursuant to the old Eleventh Circuit, “the more important question is not the mere length of time but the possibility of prejudice to existing parties that the delay may cause. This consideration is to be evaluated against the liberal treatment that is to be accorded applications for intervention of right.” Diaz v. S. Drilling Corp., 427 F. 2d 1118, 11126 (5th Cir. 1970) (“emphasis added”).

The Stallworth Court 58 F. 2d at 265 (Old-11th Cir. 1977) confirmed this liberal treatment when it held that “any prejudice that would result by virtue of the intervention [itself] is not relevant. Id. Rather, “the prejudice to the original parties that is relevant to the question of timeliness is only that prejudice which would result from the would-be intervenors failure to request intervention as soon as they knew or reasonably should have known about their interest in the action” Id. Thus, if the Motion is filed promptly, there is no reason to believe that the status of evidence and memories of the witnesses have changed such that the parties would be prejudiced by the intervention. Stallworth, 558 F. 2d at 267; see also In re Lease Oil Antitrust Litigation, 570 F. 3d 244, 248 (5th Cir. 2009) (“Any potential prejudice caused by the intervention itself is irrelevant, because it would have occurred regardless of whether the intervention was timely”).

Put another way, this Court must consider whether NCL has suffered any prejudice by the Plaintiff-Intervenors filing their claims within 22 calendar days of this Court’s final pronouncement on class action status. The answer is clearly ‘no.’ Here, there is no prejudice to existing parties, because Plaintiffs-Intervenors have moved to intervene promptly – within days of becoming aware that their interests would no longer be protected by the original parties.

See Stallworth v. Mosanto Company, 558 F. 2d 257 (Old-11th Cir. 1977) (“By filing their petition less than one month after learning of their interest in this case, [intervenors] discharged their duty to act quickly”). See also Georgia v. United State Army Corps of Eng’rs, 302 F. 3d 1242 (11th Cir. 2002) (holding that a delay of “six months” does not constitute untimeliness, even after discovery was “largely complete,” because the motion did not delay the proceedings and the Court had yet to take significant action). See also See also Diaz, 427 F. 2d 1118, 11126 (Old 11th-1970) (Finding no showing of any delay in the process of the overall litigation when the motion to intervene was filed more than a year after the action was commenced and no legally significant proceedings had occurred other than completion of discovery). (emphasis added). See also Florida Pediatric Society v. Secretary of the Florida Agency for Health Care, 2008 WL 4072805 05-23037-CIV-JORDAN/McAliley (S.D. Fla. 2008) (The relevant issue is not how much prejudice would result from allowing intervention, but rather how much prejudice would result from the would-be intervenors failure to request intervention as soon as he knew or should have known of his interest in the case.As already noted this Court does not believe Plaintiffs unreasonably delayed in brining their Motion). Id., at 4, citing Stallworth.

Third “timeliness” factor: The Plaintiff-Intervenors would be prejudiced if their petition is denied. As shown above, and explained in greater detail below, starting a new lawsuit, after the parties have diligently litigated this matter for almost three years, would be terribly inefficient and unreasonably costly to all involved. This is particularly the case here, because all relevant issues of law have been decided by this Honorable Court in its Orders on Motions to Dismiss and Summary Judgment – efficiently narrowing down the claims. See D.E. 222, 223 and 242. Therefore, requiring Plaintiff-Intervenors (former “class members”) to start a new lawsuit and relitigate these matters would be inefficient both judicially and to the litigants. See Florida Pediatric Society v. Secretary of the Florida Agency for Health Care, 2008 WL 4072805 05-23037-CIV-JORDAN/McAliley (S.D. Fla. 2008):

As for the third factor, Defendants argue that the Intervening Plaintiffs would not be prejudiced if the Motion to Intervene is denied because they can always pursue their claims in a separate lawsuit. The Court rejects this Argument, as starting a new lawsuit after the parties have diligently litigated this matter for three years, would be terribly inefficient and unreasonably costly to all involved.

Id., at 3-4.

ii. The Plaintiff-Intervenors have an interest relating to the transaction that is the subject of the pending lawsuit. Here, the Intervenors’ interests are indistinguishable from those of the original Plaintiffs. First, the intervenors suffered injury from the same wrongful acts as those complained of by the original Plaintiffs (NCL’s failure to pay Senior Stateroom Stewards full wages by forcing them to hire helpers). Second, the Intervenors claims for relief are founded on the same statutory rights as are the claims of the plaintiffs (violations of the Seaman’s Wage Act). Third, a contractual relation exists between the intervenors and Defendant NCL (Intervenors are all former and/or current NCL employees).

Fed. R. Civ. P. 24(a)(2) provides that the intervenor must have an interest relating to the property or transaction that is the subject of the pending lawsuit. The United States Supreme Court has held that an interest under Rule 24(a)(2) means a “significant protectable interest,” Chiles v. Thornburgh, 865 F. 2d 1197 (11th Cir. 1989) citing Donaldson v. United States, 400 U.S. 517 (1971). In determining the sufficiency of interest, the Eleventh Circuit requires that “the intervenor must be at least real party in interest in the transaction which is the subject of the proceeding.” Worlds v. Department of Health, 929 F. 2d 591 (11th Cir. 1991) (emphasis added). This interest has also been described as “a direct, substantial, legally protectable interest in the proceedings.” Id. The inquiry is a flexible one, which focuses on the particular facts and circumstances surrounding each application, and the type of intervention must be measured by a practical rather than a technical yardstick. United States v. Perry County Bd. of Ed., 567 F. 2d 277, 279 (Old-11th Cir. 1978) (emphasis added) (citation omitted).

In conducting this flexible inquiry, the Eleventh Circuit has held that an intervenor is a real party in interest in the transaction when either: 1) it involves persons who allege that they have suffered injury from the same or very similar wrongful acts as those complained of by the original plaintiffs; 2) the intervenors claims for relief are founded on the same statutory rights as are the claims of the plaintiffs; and/or 3) a contractual relation exists between the intervenors and the Defendant. See Worlds v. Department of Health, 929 F. 2d 591 (11th Cir. 1991):

In determining sufficiency of interest, this circuit requires that “the intervenor must be at least a real party in interest in the transaction which is the subject of the proceeding. This interest has been described as “a direct, substantial, legally protectable interest in the proceedings.” Appellants interests are sufficient to meet this standard, as his interests are practicably indistinguishable for those of the Plaintiffs.

[Intervenors] are persons who allege that they have suffered injury from the same or very similar wrongful acts as those complained of by the original plaintiffs, and [Intervenors]’ claims for relief are founded on the same statutory rights as the claims of the plaintiffs. While the individual acts of discrimination suffered by the plaintiffs and the [Intervenors] may differ, they each assert their claims as a result of the same ‘significantly protectable interest’ in being free of racial discrimination in employment.

Id., at 594, citing Foster v. Gueory, 655 f. 2D 1319 (D.C. Cir. 1981) (emphasis added). See also Stallworth v. Mosanto Company, 558 F. 2d 257 (Old-11th Cir. 1977) (if the district Court finds that a contractual relation exists between the appellants and Mosanto, then the interest requirement of section (a)(2) is satisfied).

The Plaintiffs-Intervenors are “real parties in interest” in this matter. First, like the original Plaintiffs, the Plaintiff-intervenors here are all current and/or former employees of Norwegian Cruise Lines Ltd. and/or NCL (Bahamas) Ltd. employed at any time during the period of May 14, 2006 to June 14, 2009 as Senior Stateroom Stewards. Further, like the original Plaintiffs, the Plaintiffs-intervenors worked subject to the same standard contracts and Collective Bargaining Agreements (“CBAs”). Pursuant to such contracts and CBAs, the Plaintiff-Intervenors, like the named Plaintiffs, were entitled to receive one-hundred (100) percent of their earned wages.

At all times material, NCL assigned both the original Plaintiffs and the Plaintiff-Intervenors, each, an amount of work on embarkation days that could not be feasibly completed without additional help. The unreasonable amount of work and time frames forced both the plaintiffs and the Plaintiff-intervenors to hire additional help out. Finally, NCL effectively required both the Plaintiffs and the Plaintiff-Intervenors to pay for that help out of their earned wages; thereby depriving both the Plaintiffs and the Plaintiff-Intervenors of their earned wages.

At trial, therefore, at issue (for both the original Plaintiffs and the Plaintiff-intervenors) is: 1) whether NCL’s policies and practices amounted to a breach of Plaintiffs and Plaintiff-Intervenors’ employment contracts – under Count IV of the Amended Complaint; and 2) whether NCL’s policies and practices constituted violations of the Seaman’s Wage Act, 46 U.S.C. 10101, et. seq. The intervenors’ interests are therefore indistinguishable from the original Plaintiffs, making them a real party in interest in this matter. [5]

These shared interests were succinctly summarized by this Honorable Court during its consideration of class certification. In fact, in her Report and Recommendations [D.E. 248] Magistrate Judge McAliley succinctly held that factual and legal claims of the class members’ (now “Plaintiffs-Intervenors”) were common to those of the original Plaintiffs. See [D.E. 248, pg. 12-13], ruling, in part:

To begin, there is no dispute that class members were all employed under a single Collective Bargaining Agreement between NCL (Bahamas) Ltd. and Norwegian Sefarers’ Union. [D.E. 172, p. 3]. In the Amended Complaint, all class members assert that Defendant violated their rights under he same legal theory of liability pursuant to the Seaman’s Wage Act and common law. Plaintiffs have also provided evidence that Defendant applied standard housekeeping procedures and policies in its hotel departments for all vessels, imposing on the senior stateroom attendants uniform responsibilities, job duties and time frames for completing assigned tasks. [DE. 141, Exs. 9, 10, 11, 12, 15, 16].

Thus, an issue of fact common to all members of the class is what the Defendant’s policies were for Senior stateroom attendants’ duties, and whether these policies were unreasonable. A corresponding common issue of law is whether the facts alleged by Plaintiff in the Amended Complaint establish Defendant’s liability under the Seaman’s Wage Act and common law.

The information does demonstrate that these twenty plaintiffs have claims typical of the class as a whole; they arise from the same alleged activity by Defendant and seek relief under the same legal theories. Notably, each of these Plaintiffs avers that he or she worked as a senior stateroom attendant during the class period and that, pursuant to Defendant’s standard policies and procedures applicable to all senior stateroom attendants, he or she was given an excessive amount of work that required the hiring of helpers. Each of these Plaintiffs worked for Defendant pursuant to the CBA and brings claims for violations of the Seaman’s Wage Act; the contract and statute applicable to the entire class.

See Id. Judge McCaliley’s Report and Recommendations were subsequently adopted by the Court (Hon. Judge Jordan), at D.E. 269.

All in all, the Plaintiff-Intervenors satisfy the “interest” requirement of Rule 24(a)(2) delineated by the Eleventh Circuit in Worlds v. Department of Health and Stallworth v. Mosanto. As reaffirmed by this Honorable Court, here 1) there is a contractual relationship between Defendant NCL and the Plaintiff-intervenors, through the uniform CBA applicable to all Senior Stateroom Stewards; 2) the Plaintiff-intervenors involved persons who have suffered injuries from the same or very similar wrongful acts as those complained of by the original Plaintiffs (NCL’s failure to pay Senior Stateroom Stewards full wages by forcing them to hire helpers); and 3) the Intervenors claims for relief are founded on the same legal rights as are the claims of the original plaintiffs (violations of the Seaman’s Wage Act – Count II, and breach of the Covenant of Good Faith and Fair Dealing – Count IV). Therefore, the Plaintiff-Intervenors are real parties in interest, thereby having an interest relating to the property or transaction that is the subject of the pending lawsuit. [6]

iii. The Plaintiff-Intervenors are so situated that the disposition of the action, may, as a practical matter, impair or impeade their ability to protect their interest. The Plaintiff-Intervenors would be impaired by the potential stare decisis effect of any rulings on the pending suit against NCL.

The third requirement for intervention as a matter of right under Rule 24(a) is that the applicant must be so situated that the disposition of the action, may as a practical matter, impair or impede his ability to protect his interest. See Fed. R. Civ. P. 24(a)(2). The nature of the applicant’s interest and the effect that the disposition of the lawsuit will have on their ability to protect that interest are closely related issues. The second cannot be answered without reference to the first. Chiles v. Thornburgh, 865 F. 2d 1197, 1213 (11th Cir. 1989).

Adverse stare decisis effect. It is well-established in the Eleventh Circuit that the precedential effect from another trial court on a common legal issue or claim can sufficiently “impair or impeade” the intervenors’ ability to protect their interests, thereby justifying intervention. See Chiles v. Thornburgh, 865 F. 2d 1197, 1214 (11th Cir. 1989) (“Where a party seeking to intervene in an action claims an interest in the very property and very transaction that is the subject of the main action, the potential stare decisis effect may supply that practical disadvantage which warrants intervention as of right) (emphasis added).

The adverse precedential effect is particularly salient for unnamed class members who are dismissed after denial of class certification status. In Stone v. First Union Corp., 371 F. 3d 1305 (11th Cir. 2004), the Eleventh Circuit analyzed this element for intervention of right for opt-ins who had been dismissed as a result of a decertification order, which concluded that despite an alleged common policy, the manner of discrimination suffered by the opt-ins was not identical. The Stone court concluded:

We disagree with the district court that the plaintiffs in this case would not, as a practical matter, be impaired by the potential stare decisis effect of any rulings on Stone’s suit against First Union. This Court previously has found that the potential for a negative stare decisis effect may supply that practical disadvantage which warrants intervention of right. Chiles v. Thornburgh, 865 F. 2d 1197, 1214 (11th Cir. 1989).

Although the potential for negative stare decisis effects does not automatically grant plaintiffs the right to intervene, the practical impairment the plaintiffs may face here is significant. The plaintiffs are alleging the same [employer] policy violated the [law] and led to their injury. Consequently, one court’s ruling on whether the [employer’s] policy, as a matter of law, was in violation of the [law] could influence later suits. Although a district court would not be bound to follow any other district court’s determination, the decision would have significant persuasive effects. We find that these effects are sufficiently significant to warrant intervention.

Id.(Emphasis added).

Here, as set forth earlier, the Plaintiff-Intervenors (formerly proposed class members), are alleging – like the original Plaintiffs- that the same NCL policy (forcing them to hire and pay helpers out of their earned wages) led to their injury (illegal de facto deduction of their wages). Thus, just like the original Plaintiffs, the Plaintiffs-Intervenors will need to adjudicate common questions of fact such as: 1) whether NCL had an unwritten policy of requiring the plaintiffs to hire extra workers such that they were denied their full wages, and 2) whether NCL assigned unreasonable amounts of work within unreasonably short time frames, such that the work could not feasibly be completed without helpers. Moreover, just like the original Plaintiffs, the Plaintiff-Intervenors will need to adjudicate common questions of law such as: 1) whether NCL’s deduction of wages was a violation of the Seaman’s Wage Act (Count II), and 2) whether NCL’s deduction of wages was in breach of the covenant of good faith and fair dealing (Count IV).

Therefore, an adverse ruling by this Court on these shared questions of law and fact would create the very same negative influence upon Plaintiff-Intervenors’ claims that the Eleventh Circuit found in Stone. Here, as established in Stone, one court’s ruling on whether NCL’s policy as a matter of law was in violation of the law could influence later suits. Because these common issues possess the potential to significantly influence the resolution of future actions, this element for intervening by right is satisfied. See Sierra Club v. Espy, 18 F. 3d 1202 (5th Cir. 1994) (As we have stated in Ceres Gulf, id. at 1204, however, an intervenor’s interest “is impaired by the stare decisis effect of a district court’s judgment”).

iv. This Court denied the original named Plaintiffs’ Motion for Class Certification. By virtue of that ruling, the current Plaintiffs do not adequately represent the Plaintiff-Intervenors’ Interests.

The final requirement for intervention as a matter of right is that the applicant’s interest must be inadequately represented by existing parties to the suit. Stone v. First Union Corp., 371 F. 3d 1305 (11th Cir. 2004). Here, Plaintiff-Intervenor’s deserve to intervene by right because the original Plaintiffs do not represent their interests, at all.

As explained by the Eleventh Circuit in Chiles v. Thornburgh, 865 F. 2d 1197, 1214 (11th Cir. 1989), “[t]he Supreme Court has held that the inadequate representation requirement is satisfied if the proposed intervenor shows that representation of his interest ‘may be’ inadequate and that the burden of making that showing should be treated as minimal.Id., at 1214, citing Trbovich v. United Mine Workers of America, 404 U.S. 528 (1972). See also Sierra Club v. Espy, 18 F. 3d 1202 (5th Cir. 1994) citing Trbovich, 404 U.S. 528 (1972) (The applicant has the burden of demonstrating inadequate representation, but this burden is “minimal.” The applicant need only show that representation “may be” inadequate)Id. (emphasis added).

This analysis is even easier to complete when it involves former proposed class members who are seeking to intervene of right after a denial of class certification – because the current Plaintiffs are, by definition, inadequate representatives. See Stone v. First Union Corp., 371 F. 3d 1305 (11th Cir. 2004). As the Eleventh Circuit concluded in Stone:

Here, the district court has already held that Stone is not an adequate representative plaintiff for class action purposes because the plaintiffs do not have sufficiently similar claims against the bank. Although all of the plaintiffs allege to have been subject to the same plan of age discrimination, the manner in which they were discriminated against may not be identical.

Id., at 1312. More importantly, ‘[w]hen the district court denies class certification, the named plaintiffs no longer have a duty to advance the interests of the excluded putative class members. Armstrong v. Martin Marietta Corp., 138 F. 3d 1374, 1381 (11th Cir. 1998) (en banc).

Here, this Honorable Court denied the original Plaintiffs Motion to proceed as representatives of the proposed class members. In doing so, like in Stone, this Honorable Court declared that, while the original Plaintiffs share many issues of fact and law with the proposed class members (i.e. that they have been subject to the same NCL fleetwide policy); these common issues do not predominate over individual issues. In other words, as set forth by this Honorable Court, because the claims of the original Plaintiffs are predominantly individual, by definition these original Plaintiffs cannot adequately represent the interests of the class members (now Plaintiff-Intervenors). As declared by this Honorable Court in its Order Denying Plaintiffs’ Motion for Class Certification [D.E. 269] (citations omitted):

the plaintiffs note the common issues in this case: that NCL allegedly engaged in a fleetwide practice of assigning senior stateroom stewards unreasonable amounts of work in an unreasonable time frame.

It is true that, as the plaintiffs argue, the proposed class would share many issues of fact and law. But, “[w]here, after adjudication of the classwide issues, Plaintiffs must still introduce a great deal of individualized proof or argue a number of individualized legal points to establish most or all of the elements of their individual claims, such claims are not suitable for class certification under Rule 23(b)(3). Here, even after they prove the legal and factual issues that they share, the plaintiffs must introduce an overwhelming amount of individualized proof.

Id., at pg. 2. (Emphasis added). See also Magistrate’s McAliley’s Report and Recommendations [D.E. 248]:

it is clear that even if Plaintiffs were to establish on a class-wide basis that Defendant assigned its senior stateroom stewards an amount of work that was generally considered unreasonable, significant individual issues of liability would remain. The Court would have to determine, for each class member whether that class member hired a helper, and, if the class member hired a helper, the reason for doing so. Cooper, 390 F. 3d at 722 (“a class action should not proceed under Rule 23(b)(3) when it appears that most, if not all, of the plaintiff’s claims will stand or fall not on the question of whether the defendant has a practice or policy but on the resolution of highly case specific factual issues”.). Id., at pg. 21.

All in all, here, like in Stone, by holding that Plaintiffs could not represent the interests of proposed class members because of the “individualized” nature of the claims; the Court effectively determined that the original Plaintiffs are not adequate representatives of the class members. Therefore, based on these rulings, each original Plaintiff in this matter can only prove his or her own individualized claims – and not the claims of all other senior stateroom stewards. As such, the original Plaintiffs do not adequately represent the Plaintiff-Intervenors’ interests. At the very least this satisfies the minimal showing that representation “may be inadequate.”[7] See In re AEP ERISA Litig.2009 U.S. Dist. LEXIS 22568 (S.D. Oh. 2009):

The fourth element [of intervention of right] requires that Wickett show that he may not be adequately represented by the parties already before the Court. Because the Court has ruled that plaintiff Bridge’s has not shown that he is an adequate class representative, Wickett has demonstrated that the current parties cannot adequately represent him. Id.

v. Conclusion: