Abraham Wallace et. al. v. NCL (Bahamas) Ltd. – Part 2

Lipcon, Margulies, Alsina & Winkleman, P.A

May 05, 2011

Abraham Wallace et. al. v. NCL (Bahamas) Ltd. – Part 2

Reply in Support of Motion to Intervene

This reply was written on behalf of numerous seafarers to support their motion to intervene in an already existing lawsuit being handled by Lipcon, Margulies, Alsina & Winkleman, P.A. In this document the Plaintiffs respond to the arguments offered by the defense to prevent their intervention. The Plaintiffs claim that their intervention is timely and appropriate in this action. Through intervention these potential Plaintiffs can assure that their rights will not be affected by a lawsuit to which they are not a party.

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

v.

NCL (BAHAMAS) LTD.,
Defendants
____________________________/

INTERVENORS’ REPLY IN SUPPORT OF MOTION FOR INTERVENTION

COME NOW, Ian Wallace, et. al., Plaintiff-Intervenors, by and through undersigned counsel, and hereby file their Reply in Support of their Motion for Intervention [D.E. 277]. In support thereof, Plaintiff-Intervenors allege as follows:

I.PLAINTIFF-INTERVENORS MAY INTERVENE AS MATTER OF RIGHT, PURSUANT TO RULE 24(A).

To intervene as a matter of right, a party must show 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 is 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).

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 Rule 24 broadly in favor of the 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).

A. The Motion to Intervene is timely.

When considering whether a motion to intervene is timely, a court must consider the following four factors: (1) how long the potential intervener knew or reasonably should have known of her stake in the case into which she seeks to intervene; (2) the prejudice, if any, the existing parties may suffer because the potential intervenors failed to intervene when she knew or reasonably should have known of her stake in that case or from the time he became aware that their stake would no longer be protected by the existing parties to the lawsuit; (3) the prejudice, if any, the potential intervener may suffer if the court does not let her intervene; and 4) any unusual circumstances that weigh in favor of or against a finding of timeliness. Walker v. Jim Dandy Co., 747 F. 2d 1360, 1366 (11th Cir. 1984) (citing Stallworth v. Mosanto Co., 558 F. 2d at 264-66 (5th Cir. 1977).

Courts should discourage premature intervention [because it] wastes judicial resources. Sierra Club v. Espy, 18 F. 3d 1202, 1205 (5th Cir. 1994). Thus, these factors are a framework and “not a formula for determining timeliness” John Doe v. Glickman, 256 F. 3d 371 (5th Cir. 2001) citing Edwards v. City of Houston, 78 F. 3d 983 1000 (5th Cir. 1996). A motion to intervene may still be timely even if all the factors do not weigh in favor of a finding of timeliness. Stallworth v. Mosanto Co., 558 F. 2d at 264-66 (5th Cir. 1977).[1]

1. Contrary to NCL’s assertions, pursuant to binding Eleventh Circuit precedent, when considering timeliness, the date on which the would-be intervenors became aware of the pendency of the action – is irrelevant. Rather, the timeliness clock starts to run from the time that the intervenors became aware that their interests would no longer be protected by existing parties in the lawsuit. In the context of a class action, that timeliness clock does not start running until the putative intervenors know that the class representatives will no longer represent their interest.

The first timeliness factor is the length of time during which the would-be intervenor actually knew or should have known of his interest in the case before he petitioned for leave to intervene. Stallworth, 558 F. 2d at 1206. Thus, the timeliness clock runs either from the time the applicant knew or reasonably should have known of his stake in the case into which he seeks to intervene, or from the time he became aware that his stake would no longer be protected by the existing parties to the lawsuit. John Doe v. Glickman, 256 F. 3d 371 (5th Cir. 2001) citing Edwards v. City of Houston, 78 F. 3d 983 1000 (5th Cir. 1996) (Emphasis added).

In the context of a class action, as this case was originally styled, “[t]he timeliness clock does not start running until the putative intervener knows that class counsel will not represent his interest.” In re Lease Oil Anti Antitrust Litigation, 570 F. 3d 244, 249 (5th Cir. 2009) (Emphasis added).

Here, this Honorable Court entered its final pronouncement regarding class certification, (denying Plaintiff’s Motion for Reconsideration of the Order Denying Class Certification [D.E. 274]), on March 15, 2011. It was at this point that the intervenors became aware that 1) they were no longer ‘putative class members’ and 2) that the named Plaintiffs would no longer represent their interests in the action. Because the timeliness clock does not start running until the putative intervenors learn that the named class representatives – the existing parties – will no longer protect their interests; the timeliness clock here began run on March 15, 2011. Plaintiff intervenors filed their motion for intervention on April 6, 2011. As such, 22 calendar days (or 16 working days) is the actual length of time that has elapsed since the Intervenor learned that their interests would not be protected by the existing named Plaintiffs in the case. See Foster, et. al. v. Gueory, et. al., 655 F. 2d 1319 (D.C. Cir. 1981):

In the present case appellants satisfied the timeliness requirement when their motion was made little more than one month after the district court denied the original plaintiffs’ motion for class certification. Until that denial, appellants might have reasonably believed they could secure relief as members of a plaintiff class. Though the motion to intervene did not occur approximately ten months after the filing of the complaint, it is improbable that the defendants would be prejudiced by intervention at that time since the purpose of intervention was to permit appellants to join in the complaint rather than to assert different causes of action. Under these circumstances, appellants’ motion to intervene was timely.

Id., at 1324. (Emphasis added).

In contravention to such long standing precedent, in its Response in opposition to Plaintiffs’ Motion for Intervention, NCL argues that this Honorable Court should look at the date on which the intervenors became aware of the pendency of this action to determine whether they acted timely. In doing so, NCL points out that some of the Intervenors first became aware of the existence of the case 10 months before they filed their motion for intervention.[2] Thus, NCL seems to improperly suggest that the timeliness clock started to run when the intervenors became aware of the pendency of the action. NCL’s argument is not the law and is in contravention with binding Eleventh Circuit precedent.

In Stallworth v. Mosanto Co., 558 F. 2d at 257, 264 (5th Cir. 1977), the old fifth Circuit[3] unequivocally held that that “the time that the would-be intervenor first became aware of the pendency of the case is not relevant to the issue of whether the application was timely.” See Stallworth, at 264-265:

Although there is language in the NAAP that could conceivably be read to require that the date on which the would-be interevenor became aware of the pendency of the action instead of the date on which he learned of his interest in the case be considered for the purpose of determining whether he acted promptly, we reject the notion that the Supreme Court intended to establish such a rule for three reasons. […] Second, in the more recent United Airlines decision,[4] the Supreme Court considered the speed with which the would-be intervenor in a class action acted when she became aware of her interests “would no longer be protected by the named representatives” rather than when she learned the lawsuit was pending. Third, a rule making knowledge of the pendency of the litigation the critical event would be unsound because it would induce both too much and too little intervention. It would encourage individuals to seek intervention at a time when they ordinarily can possess only a small amount of information concerning the character and potential ramifications of the lawsuit, and when the probability that they will misjudge the need for intervention is correspondingly high. Often the protective step of seeking intervention will later prove to have been unnecessary.[…] These effects would be inconsistent with two important purposes of Rule 24: to foster economy of judicial administration and to protect non-parties from having their interests adversely affected by litigation conducted their participation. Therefore, the time that the would be intervenor first became aware of the pendency of the case is not relevant to the issue of whether his application was timely.

Id. (Emphasis Added). See John Doe v. Glickman, 256 F. 3d 371, 376 (5th Cir. 2001), citing Stallworth (“The timeliness clock does not start to run from the date the potential intervener knew or should have known of the existence of the case into which he seeks to intervene”).

Therefore, for purposes of the timeliness analysis, and contrary to NCL’s assertions, it is wholly irrelevant when the Intervenors became aware of the existence of the case.

In fact, as cited earlier, the actual rule promulgated by Stallworth – binding on the Eleventh Circuit – is that the timeliness clock begins to run from the time that the applicant became aware that his stake would no longer be protected by the existing parties to the lawsuit. In this case that happened when the intervenors became aware that 1) they were no longer putative class members and 2) that the named Plaintiffs would no longer represent their interests in the action. See Sierra Club v. Espy, 18 F. 3d 1202, 1205 (5th Cir. 1994), citing Stallworth at 264-265:

In Stallworth, 558 F. 2d at 264 we rejected the notion that the date on which the would-be intervener 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 his interests would no longer be protected by the original parties. Id., at 264,

Id. (Emphasis added).

Here, as shown above, the Intervenors filed their Motion for Intervention on April 6, 2011; 22 calendar days after they became aware (on March 15, 2011) that their interests would no longer be protected by the original parties. That is, when the Court entered its final pronouncement on class certification. As result, their motion for intervention was timely filed. See Stallworth v. Mosanto Co., 558 F. 2d at 257, 267 (5th Cir. 1977) (“By filing their petition less than one month of learning of their interest in this case, the appellants discharged their duty to act quickly”). See also Sierra Club v. Espy, 18 F. 3d 1202 (5th Cir. 1994) (motion found timely when made within two months of intervenor becoming aware that its interests would no longer be protected by the original parties). See also Cook v. Boorstin, 763 F. 2d 1462 (D.C. 1985):

First, the panel considered the requirement imposed by Rule 24(a) that the intervention motion be timely filed. The court found the requirement satisfied because the appellants’ motion had been filed little more than a month after the district court had denied class certification. As the Library tacitly concedes, the timeliness requirement is therefore also satisfied because the appellants now before us filed their intervention motion within five weeks of the denial of class certification.

Id., at 205 (Emphasis added).

2.Pursuant to binding United States Supreme Court precedent, while the intervenors where putative class members they were considered merely passive beneficiaries who were not required to act to protect their interests. As contemplated by Rule 23 and 24, therefore, a putative class member is only required to act – either file a separate suit or intervene in the case – after the denial of class certification status. NCL’s arguments that the intervenors should have anticipated that class certification would be denied – and as such should have intervened earlier – have been expressly rejected by the United States Supreme Court. As set forth in American Pipe v. Utah, such protective motions to intervene are not allowed.

The concept that the timeliness clock does not start running until the putative intervenors learn that the named class representatives – the existing parties – will no longer protect their interests, is predicated on a rule promulgated by the Untied States Supreme Court in American Pipe and Construction Co., et. al., v. Utah, 414 U.S. 538 (1974). In American Pipe the Court held that until a Court denies class certification, unnamed class members are presumed to be represented by the class representatives, and thus, are merely passive beneficiaries who are not required to act on their own to protect their interests. The Court, therefore, thus held that until class certification is denied, unnamed class members 1) are not required to file a separate lawsuit (their statute of limitations is tolled during the class certification stage), and 2) they are not required to file premature/protective motions to intervene.

In contravention to this binding precedent, in its response in opposition to Plaintiffs’ Motion for Intervention, NCL argues, in part, D.E. 283 at pg. 4:

The intervenors and their counsel were alerted to the fundamental problems making class treatment inappropriate long before the Court denied the motion for reconsideration. The problems first became apparent during discovery, when NCL employees offered evidence showing that the core issues of liability – whether and why senior stateroom stewards hire helpers – were individualized. Those problems were made even more apparent, when, in its response to the motion for class certification, NCL demonstrated that class treatment was impossible [DE 254]. If the Intervenors and their counsel did not want to take NCL’s word for it, Magistrate Judge McCaliley made it crystal clear on November 18, 2010 when she recommended that class certification be denied. [D.E. 248]. At no point during that process, however, did the intervenors seek to intervene.

NCL’s argument is essentially that the Intervenors should have filed protective motions to intervene in the event that the class would later be found to be unsuitable. That is not the law. In fact, NCL’s argument was expressly rejected by the United States Supreme Court in American Pipe and Construction Co., et. al., v. Utah, 414 U.S. 538 (1974):

A contrary rule allowing participation only by those potential members of the class who had earlier who had earlier filed motions to intervene in the suit would deprive Rule 23 class actions of the efficiency and economy of litigation which is a principal purpose of the procedure. Potential class members would be induced to file protective motions to intervene or to join in the event that a class was later found unsuitable. In cases such as this one, where the determination to disallow the class action was made upon considerations that may vary with such subtle factors as experience with prior similar litigation or the current status of a court’s docket, a rule requiring successful anticipation of the viability of the class would breed needless duplication of motions. We are convinced that the rule most consistent with federal class action procedure must be that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.

Id., at 553-554. See also John Doe v. Glickman, 256 F. 3d 371, 376 (5th Cir. 2001) (“Courts should discourage premature intervention because it wastes judicial resources”). See also Crown, Cork & Seal Company, Inc., v. Parker, 462 U.S. 345 (1983):

Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiff’s in the pending action.

Id., at 353. (Emphasis added). See also Armstrong v. Martin Marietta Corp., 138 F. 3d 1374 (11th Cir. 1998):

We therefore conclude that the pendency of a class action tolls the applicable statute of limitations only until the district court makes a class certification decision. If class certification is denied in whole or in part, the statute of limitations begins to run against those putative class member who were excluded from the class. In order to protect their rights, such individuals must seek to intervene in the pending action (like the Plaintiffs in American Pipe) or file a separate individual action (like the plaintiff in Crown, Cork) before the time remaining in the limitations period expires.

Id., at 1391 (Emphasis added).

Therefore, NCL’s argument that the Intervenors should have anticipated that the class would be denied, and as such, should have filed protective motions to intervene, is incorrect and contrary to law.[5] All in all, if the putative class member statute of limitations was tolled until March 15, 2011 (when the Court denied Plaintiffs’ Motion for Reconsideration of Class Certification); the putative class members were not required to take any affirmative action until then – either in the form of a new lawsuit or by moving to intervene. Pursuant to American Pipe, any such action would have been deemed premature, and a waste of judicial resources.

3. Contrary to NCL’s assertions, when considering the second timeliness factor of “prejudice to exiting parties,” pursuant to binding Eleventh Circuit precedent, the prejudice that results from the intervention itself is irrelevant. To establish whether a party is allowed to intervene as a matter of right under Rule 24(a), the only prejudice that the Courts look at is that which might result from the intervener’s delay in moving to intervene. Here, the Intervenors moved to intervene within twenty-two (22) days of the Court’s final pronouncement on class certification. NCL has failed to show that it is prejudiced by the twenty-two day delay.

The second timeliness factor is concerned with assessing any prejudice caused to the existing parties by the applicants’ failure to seek intervention as soon as possible after learning of their interest in the case. In Stallworth v. Mosanto Co., 558 F. 2d at 257, 265 (5th Cir. 1977), the old Fifth Circuit[6] unequivocally held that this factor is exclusively concerned with the prejudice caused by the applicant’s delay in seeking intervention. Prejudice that would result by virtue of the intervention itself is not relevant when considering whether a party should be allowed to intervene as of right pursuant to Rule 24 (a). See Stallworth, at 265:

Factor 2. The extent of the prejudice that the existing parties to the litigation may suffer as a result of the would-be intervenors failure to apply for intervention as soon as he actually knew or reasonably should have known of his interest in the case. As these cases make clear, the prejudice to the original parties to the litigation 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 he knew or reasonably should have known about his interest in the action. Although it is sometimes suggested that any prejudice that would result by virtue of intervention is relevant, this is incorrect/strong>. Whether allowing intervention will delay the progress of the case or prejudice the rights of the original parties is a factor which the district court must consider in exercising its discretion to permit intervention under section (b) of Rule 24 [permissive intervention] […] Since a similar provision is not included in section (a) of this Rule [intervention of right], it is apparent that prejudice to existing parties other than that caused by the would-be intervenors failure to act promptly was not a factor meant to be considered where intervention was sought under section (a). Therefore, to take any prejudice that the existing parties may incur if intervention is allowed into account under the rubric of timeliness would be to re-write Rule 24 by creating an additional pre-requisite to intervention as of right.

Id., at 265 (Emphasis added). See also Edwards v. City of Houston, 78 F. 3d 983, 1002 (5th Cir. 1996), citing Stallworth (“This factor is concerned only with the prejudice caused by the applicants’ delay, not the prejudice which may result if intervention is allowed”). See also John Doe v. Glickman, 256 F. 3d 371, 378 (5th Cir. 2001), citing Stallworth (“[C]ourts should ignore the likelihood that intervention may interfere with orderly judicial processes. Prejudice must be measured by the delay in seeking intervention, not the inconvenience to existing parties of allowing the intervenor to participate in the litigation.”).

In its response in opposition to Intervention, NCL, in contravention to Eleventh Circuit precedent under Stallworth, attempts to show how it would be prejudiced by allowing the intervention itself. Although relevant to the determination of whether Plaintiffs’ should be allowed “permissive intervention” under Rule 23(b); NCL’s reasons [D.E. 283, pp. 5 – 6] are wholly irrelevant to determine “intervention as of right” under Rule 23(a).[7]

Indeed, the only relevant inquiry here is as follows: Is there any prejudice to NCL because the Intervenors filed their Motion to Intervene within twenty-two (22) days after the Court’s final pronouncement denying class certification [D.E. 274] – when they became aware that the existing parties would no longer protect their interests?

In its response, NCL’s does not show that it was harmed or somehow prejudiced by the twenty-two (22) day wait. The reason is clear: NCL is simply not prejudiced. In fact, courts all-over have deemed similar and even longer periods as “timely.” See Stallworth, 58 F. 2d at 257, 265 (5th Cir. 1977)[8] (less than one month timely); Sierra Club v. Espy, 18 F. 3d 1202 (5th Cir. 1994) (timely when made within two months); Association of Professional Flight Attendants v. Gibbs, 804 F. 2d 318 (5th Cir. 1986) (five month lapse not unreasonable); Glickman, 256 F. 3d 371, 376 (5th Cir. 2001) (one month timely); See Foster, et. al. v. Gueory, et. al., 655 F. 2d 1319 (D.C. Cir. 1981) (“little more” than one month timely); Cook v. Boorstin, 763 F. 2d 1462 (D.C. 1985) (Filing intervention motion within five weeks of the denial of class certification timely); Georgia v. United States Army Corps of Eng’rs, 302 F. 3d 1242 (11th Cir. 2002) (holding that delay of six months does not constitute untimeliness); Diaz v. Southern Drilling Corp., 427 F. 2d 1118, 1126 (5th Cir. 1970)[9] (Finding no showing of delay in the process of overall litigation when the motion to intervene was filed more than a year after the action was commenced and all significant legal proceedings had occurred other than the completion of discovery).

Even if the, for the sake of argument, the relevant period were to be measured before the Court’s final pronouncement on class certification – which as shown above cannot be -; [10] NCL has still failed to show any prejudice. For instance, NCL argues that the Intervenors should have moved to intervene after Magistrate Judge McCaliley entered her Report & Recommendations, NCL’s assertion, however, is disingenuous. By the time that Magistrate Judge McCaliley had entered her R&R, on November 18, 2010 [D.E. 248], discovery had been completed four months before (on June 10, 2010) and all substantive rulings in the case had been made two months before (on September 27, 2010)[11]

Therefore, even if the relevant period were to be counted from the Magistrate Judge’s ruling on class certification, NCL has still failed to show how it would have suffered less prejudice. In other words, even if the intervenors had filed then, rather than filing when they did so, both parties would still have been bound by the Court’s substantive rulings and similarly precluded from conducting any additional discovery. See In re Geisser, 554 F. 2d 698, (5th Cir. 1977)[12] (An intervenor “must accept the proceedings as he finds them.” The intervenor has no right to relitigate issues already decided). Id., at 705 n. 6.

4.The Intervenors will be severely prejudiced if their Motion for Intervention is denied. If Plaintiff-Intervenors are not allowed to Intervene in the pending case, there is a high risk that they will not be able to independently assert their Seaman Wage Act causes of action in another Court of law. This factor is also an unusual circumstance that weighs in favor of a finding of timeliness.

The third timeliness factor focuses on the prejudice the potential intervener would suffer if he is not allowed to intervene. See Stallworth, at 266:

[T]he district court should apply a more lenient standard of timeliness if the would be intervenor qualifies for intervention [as of right] under section (a) than if he qualifies for intervention [permissive] under section (b). The rule arose out of a concern that a section (a) intervenor “may be seriously harmed if he is not permitted to intervene.

Id. As set forth in the Motion to Intervene [D.E 277], all of the Intervenors’ employment agreements with NCL include arbitration provisions. Each subject arbitration provision contains a choice of law clause which provides, in part, that “… any disputes … shall be exclusively governed … by arbitration … and the law to be applied to the dispute is Bahamian law, to the exclusion of any other applicable jurisdiction and without regard to Bahamian conflict of laws rules.”

If the Plaintiff-Intervenors are not allowed to intervene in the pending case, and they attempt to file separate lawsuits, NCL has made it clear that it will move to compel arbitration of their claims under the aforementioned provision. However, because of NCL’s foreign choice of law provision, if the Plaintiff-Intervenors were compelled to arbitrate this matter, they would be forced to arbitrate their claims exclusively under Bahamian law. Because all of the Intervenors’ causes of actions under the Seaman’s Wage Act are U.S. statutory remedies (which Bahamian law does not recognize), compelling the case to arbitration would completely deprive them of their statutory rights under U.S. law – and ultimately deprive them of a remedy. See Odom v. Celebrity, 10-23086-CIV-JORDAN (Hon. Judge Jordan) (S.D. Fla. 2011), citing Thomas v. Carnival Corp., 573 F. 3d 113, 1117 (11th Cir. 2009) (per curiam) (arbitration agreement mandating foreign law in a foreign venue is against public policy because it effectively waives the plaintiffs’ rights under the Seaman’s Wage Act).

By intervening on the pending action, in contrast, the Intervenors would not be subject to arbitration under foreign law. Here, in the pending case, Defendant NCL stipulated on the record that NCL will not seek arbitration of these claims. See NCL’s Motion to Dismiss [D.E. 28]:

“NCL has not sought arbitration of the claims Plaintiffs have pleaded in the Amended Complaint, and, for the record, NCL will not seek arbitration of those claims.” Id., at pg. 2.

In light of such record stipulation, arbitrating under foreign laws that do not recognize the Seaman’s Wage Act is a non-issue in the present action. It is important to note that this stipulation was made by NCL long before this Court denied the Plaintiffs’ Motion to Certify the Class. As such, at the time that NCL made the stipulation the putative class members – including Intervenors – were necessarily contemplated by NCL when entered into this stipulation.

All in all, it is undisputed that if the Intervenors are not allowed to intervene in this action, and attempt to file separate lawsuits, they will be deprived of their Congressional U.S. statutory right under the Seaman’s Wage. Therefore, these former class members will be seriously harmed if they are not permitted to intervene. This, in and of itself, also constitutes an “unusual circumstance” that weighs in favor of a finding of timeliness.

Notwithstanding this, in its Response in Opposition to the Motion for Intervention, NCL disingenuously attempts to limit its record stipulation by arguing that it was limited to the named Plaintiffs. NCL further alleges that if Intervenors are permitted to intervene it will “consider the possibility of seeking to compel arbitration for those individuals ’ claims, and also seeking dismissal based on the intervenors failure to follow the mandatory grievance procedure.” NCL should be estopped from doing so.

First and foremost, the NCL stipulation clearly and unequivocally asserts that it will not seek arbitration of the claims in the Amended Complaint. The Amended Complaint in this matter, was styled as a proposed class action with class action allegations, brought by the Plaintiffs’ on their own behalf and on behalf of all other similarly situated Senior Stateroom Stewards – employed at any time by NCL between May 14, 2006 and June 14, 2009. Therefore, by stipulating that it would not seek arbitration of the claims pleaded in the Amended Complaint; NCL’s stipulation contemplated Plaintiffs and the members of the class. Put simply, had this Honorable Court ultimately granted class certification, NCL would have been bound by its stipulation as to both class representatives and class members. Therefore, NCL’s cannot now attempt to limit its stipulation just for purposes of attempting to prevent intervention of the same class members.

Second, in Count I of the Amended Complaint [D.E. 26], Plaintiffs pled a declaratory relief – on their own behalf and on behalf of the proposed class members – seeking a declaration, pursuant to Thomas v. Carnival Corp., 573 F. 3d 113, 1117 (11th Cir. 2009) (per curiam), that the arbitration provision in Plaintiffs’ employment agreements requiring application of foreign law was null and void as against public policy, as it deprived them of their statutory rights under U.S. law (Seaman’s Wage Act).

In response to the declaratory count, NCL filed a Motion to Dismiss [D.E. 28, pg. 2-3] and made its stipulation that it would not seek arbitration of the claims in the Amended Complaint:

In Count I, Plaintiffs seek a declaration that the arbitration provision contained in the collective bargaining agreement is void, thus permitting Plaintiffs to assert their claims here instead of in arbitration. NCL has not sought arbitration of the claims Plaintiffs have pleaded in the Amended Complaint and, for the record, NCL will not seek arbitration of those claims. In light of this record statement by NCL, Count I should be dismissed for lack of subject matter jurisdiction because it is moot and does not present a justiciable case or controversy.

Relying on these representations, Plaintiff withdrew its declaratory judgment count in the Amended Complaint. Also relying on NCL’s representations, this Honorable Court declared Count I of the Amended Complaint as moot. NCL’s should therefore, be judicially estopped from attempting to limit or change their record stipulation now simply to avoid intervention. See Burnes v. Pemco Aeroplex, Inc., 291 F. 3d 1282 (11th Cir. 2002) (“the purpose of the doctrine [judicial estoppel] is to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment”). By entering into the stipulation NCL waived arbitration. It cannot now deliberately change its position. NCL’s about-face is far too late. See Gunn Plumbing, Inc., v. Dania Bank, 252 So. 2d 1 (Fla. 1971) (“A stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and the Court. Also, a stipulation entered into during the course of one action may, unless expressly limited by its terms, be recognized in another action or proceeding”).

Third, to the extent that NCL argues that if the intervenors are allowed to intervene it will seek to compel arbitration of their claims, pursuant to binding Eleventh Circuit precedent NCL cannot relitigate old matters that have already been decided. See In re. Geisser, 554 F. 2d 698, 705 n. 6 (5th Cir. 1977) (“The intervenor has no right to relitigate issues already decided”).

Finally, even in the absence of the arbitration issue, 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.

B.Plaintiff-Intervenors: 1) have an interest relating to the transaction that is the subject of the pending lawsuit – their interests are indistinguishable from the original Plaintiffs; 2) are so situated that the disposition of the action may as a practical matter, impair or impede their ability to protect their interest – they would be impaired by the potential stare decisis effect of any rulings on the pending suit against NCL; and 3) The Court denied the current Plaintiffs’ Motion for Class Certification. By virtue of that ruling, the current Plaintiffs’ do not adequately represent the Plaintiff-Intervener’s interests.

The Intervenors incorporate by reference their argument at pages 8 – 15 of their Motion for Intervention [D.E. 283].

Nothing in NCL’s response changes the fact that the intervenors have an interest relating to the transaction that is the subject of the pending suit; the interests of the Intervenors are indistinguishable from the interests of the original Plaintiffs. As such, they are a “real party in interest” in this matter. See Worlds v. Department of Health, 929 F. 2d 591 (11th Cir. 1991) (An intervener’s interests are sufficient to meet this standard if is interests are practically indistinguishable from the interests of the original Plaintiffs).

Further, nothing in NCL’s response changes the fact that the disposition of this action may impede or impair their ability to protect their interest. Pursuant to binding Eleventh Circuit the precedential effect from another trial court on a common legal issue (i.e. liability under the Seaman’s Wage for policy requiring use and payment of helpers out of Plaintiffs’ own earned wages) can sufficiently “impair or impeade” the Intervenors’ ability to protect their interests. See Chiles v. Thornburgh, 865 F. 2d 1197, 1214 (11th Cir. 1989). This was further explained by the Eleventh Circuit in Stone v. First Union Corp., 371 F. 3d 1305 (11th Cir. 2004) in the context of a class action lawsuit (after denial of certification), as adverse precedential effect is particularly salient for unnamed class members who are dismissed after denial of class certification status.

Finally, nothing in NCL’s response changes the fact that by virtue of the Court’s denial of Plaintiff’s Motion for Class Certification – the 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).