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Williams v. American Equipment & Fabricating Corp.

May 10, 2010

KEVIN J. WILLIAMS, PLAINTIFF
v.
AMERICAN EQUIPMENT & FABRICATING CORP., DEFENDANT



The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge

ORDER and OPINION

Now before the Court are the following motions: Defendant's Motion to Compel (#37) and a Motion to Intervene as Plaintiff (#35) by T. Steel Construction, Inc. As explained more fully herein, the Motion to Compel is denied as moot and the Motion to Intervene as Plaintiff is granted.

MOTION TO COMPEL

In this motion, Defendant asserts that it has served written discovery on the Plaintiff who had not, at the time of filing the motion, responded. In Plaintiff's response (filed on April 12), he asserts that discovery responses were served on April 7, 2010. Defendant has filed nothing to dispute that assertion.

Accordingly, the motion to compel is denied as moot. This is not to say that the dilatory response is condoned. Future discovery shall be conducted in the time and manner directed by the Federal Rules and the scheduling order in this case.

MOTION TO INTERVENE AS PLAINTIFF

T. Steel Construction Corp. ("T. Steel") was the employer of Plaintiff Kevin Williams ("Williams") at all pertinent times. Williams' injury asserted in this case occurred during the scope of his employment and resulted in a worker's compensation claim. That claim was paid by T. Steel. By this motion, T. Steel seeks to protect its worker's compensation lien and subrogation interest in any judgment in this action.

Plaintiff has not responded to this motion. Defendant American Equipment & Fabrication Corporation ("American") opposes the motion on two grounds. First, it claims that the motion was untimely. Second, it claims that the movant's interest is adequately protected by the current parties to this litigation.

This case was filed on May 13, 2009. The Fourth Amended Complaint was filed on October 19, 2009. The underlying event allegedly occurred on October 10, 2007. The Motion to Intervene as Plaintiff was filed on March 24, 2010.

There are two kinds of intervention: intervention as of right and permissive intervention. A would-be intervenor who cannot meet the test for intervention as of right may nonetheless be permitted to intervene if the applicant can meet the test for permissive intervention. Both types of intervention are governed by Fed.R.Civ.P. 24. In pertinent part, this Rule provides:

(a) Intervention as of right. On timely motion, the court must permit anyone to intervene who:

***

(2) claims an interest relating to the property or transaction that is the subject of the action and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, ...


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