The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JEROME KING, et al. CIVIL ACTION
VERSUS NO. 21-579-BAJ-SDJ
FLOWERS FOODS, INC., et al.
ORDER
Before the Court is a Motion to Intervene (R. Doc. 23) filed by Movant Gordon Frank on
June 20, 2022. Defendants Flowers Foods, Inc., and Flowers Baking Company of Baton Rouge,
LLC, oppose the Motion (R. Doc. 24). No reply has been filed. For the reasons set forth below,
this Motion is granted.
I. RELEVANT BACKGROUND
This dispute began as a Fair Labor Standards Act Opt-In Collective Action case filed in
the Western District of Louisiana on October 21, 2015.1 However, the Western District decertified
that Collective Action on April 9, 2021, after which Plaintiffs filed the instant action in this Court
on October 11, 2021.2 Plaintiffs are all “former or current deliverymen” with Flowers Foods, Inc.,
and Flowers Baking Company of Baton Rouge, LLC,3 (collectively, “Flowers”) in Louisiana.4 As
set forth in their Complaint, Plaintiffs challenge “both the classification of Plaintiffs as
independent contractors and Defendants’ denial to Plaintiffs of the rights, obligations, privileges,
1 R. Doc. 1 at 2. The case filed in the Western District was Richard, et al. v. Flowers Foods, Inc., et al., No. 6:15-cv-
02557. Id.
2 Id.
3 Per Plaintiffs, Flowers Foods, Inc., and Flowers Baking Company of Baton Rouge, LLC, “are in the wholesale bakery
business.” Id. at 1.
4 Id. at 1.
and benefits owed to them as employees,” and allege violations of both the FLSA, 29 U.S.C. §
201, et seq., and the Louisiana Wage Payment Law, La. R.S. 23:631, et seq.5
Of note, on March 4, 2022, a Motion to Intervene was filed by David Jones and Bryan Roy,
who also were former or current deliverymen for Flowers, allegedly misclassified as independent
contractors.6 Finding intervention appropriate, the Court granted that Motion, which was
unopposed, on May 16, 2022.7
II. PARTIES’ ARGUMENTS
In his Motion, Movant seeks to permissively intervene in this matter. Per Movant, he
initially joined the collective action that ultimately was decertified by the Western District.8 After
decertification, Movant claims he was “lost in the shuffle” and that “[a]n error of oversight” by
counsel representing plaintiffs in the collective action resulted in Movant “being left out of all
eight (8) actions pending before deferral district courts for the Western, Middle, and Eastern
Districts of Louisiana.”9 Movant argues that, because he is similarly situated to the other plaintiffs
in this action and because he has satisfied all requirements for permissive intervention, he is
entitled to permissively intervene in this matter.
In their Opposition, Defendants argue that the statute of limitations has run on both
Movant’s FLSA and Louisiana Wage Payment Act claims.10 As such, Defendants claim that
Movant’s claims are time-barred and that his Motion should be denied as futile.11
5 Id. at 1, 2.
6 R. Doc. 16.
7 R. Doc. 20.
8 R. Doc. 23-2 at 1.
9 Id.
10 R. Doc. 24 at 5.
11 Id.
III. LAW AND ANALYSIS
Rule 24 of the Federal Rules of Civil Procedure provides for “[i]ntervention—a procedure
by which an outsider with an interest in a lawsuit may come in [even] though [it] has not been
named as a party by the existing litigants.” Wright & Miller, 7C Fed. Prac. & Proc. Civ. § 1901
(3d ed. 2007). The rule distinguishes between two kinds of intervention—intervention as of right
and permissive intervention. See Fed. R. Civ. P. 24(a) (intervention of right) and 24(b) (permissive
intervention). A court must allow intervention if the motion is timely and the movant either: (1)
is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating
to the action and is so situated that disposing of the action may impair or impede the movant’s
ability to protect his interest, unless existing parties adequately represent that interest. Fed. R. Civ.
P. 24(a) (intervention of right). Rule 24(b) provides that the Court may permit anyone to intervene
who (1) is given a conditional right to intervene by a federal statute or (2) has a claim or defense
that shares with the main action a common question of law or fact. Fed. R. Civ. P. 24(b)
(permissive intervention). “Whether leave to intervene is sought under section (a) or (b) of Rule
24, the application must be timely.” Harbour v. Sirico, No. 18-1055, 2019 WL 2338504, at *7
(M.D. La. Jun. 3, 2019), citing Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir. 1977).
Additionally, regardless of the type of intervention, “Rule 24 is to be liberally construed.”
Brumfield v. Dodd, 749 F.3d 339, 341 (5th Cir. 2014).
Here, Movant seeks to permissively intervene in this case. The Fifth Circuit has
acknowledged that “[p]ermissive intervention ‘is wholly discretionary with the [district] court …
even though there is a common question of law or fact, or the requirements of Rule 24(b) are
otherwise satisfied.’” Kneeland v. Nat’l Collegiate Athletic Ass’n, 806 F.2d 1285, 1289 (5th Cir.
1987), quoting New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 470-71
(5th Cir. 1984) (en banc). “Rule 24(b) necessarily vests broad discretion in the district court to
determine the fairest and most efficient method of handling a case with multiple parties and
claims.” Harbour, 2019 WL 2338504, at *7, quoting Secs. & Exch. Comm’n v. Standford Int’l
Bank, Ltd., No. 09-298, 2010 WL 11492410, at *2 (N.D. Tex. Jan. 6, 2010).
A. Whether Movant’s Intervention is Futile
“If the intervening party’s legal claim fails on the merits under clearly-established law or
a prior decision in the case, the motion to intervene can be dismissed as futile.” In re Welded
Constr., L.P., 618 B.R. 710, 723 (Bankr. D. Del. 2020). “Indeed, the Fifth Circuit has affirmed
denials of motions to intervene when the amended complaint in intervention asserts only claims
that are time barred.” State Farm Mut. Auto. Ins. Co. ex rel. Holley v. U.S., No. 02-1799, 2003
WL 1873089, at *3 (E.D. La. Apr. 10, 2003) (finding the court “bound … to conclude that it is
appropriate to deny a motion to intervene when the intervenor seeks to raise claims that are time
barred”) (citations omitted). “The Fifth Circuit defines futility ‘to mean that the amended
complaint would fail to state a claim upon which relief could be granted.’” Hamilton v. First Am.
Title Co., No. 07-1442, 2008 WL 3876038, at *4 (N.D. Tex. Aug. 15, 2008), quoting Stripling v.
Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000).
To determine whether the proposed complaint fails to state a claim upon which relief could
be granted, the court applies the same standard as it would apply in considering a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6), i.e., whether the complaint “include[s] ‘enough
facts to state a claim to relief that is plausible on its face.’” Id., citing Stripling, 234 F.3d at 873;
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Thus, when an opposing party argues
futility, the court reviews proposed [pleadings] in the light most favorable to the proponent,
accepting all well-pleaded facts as true, with every doubt to be resolved in favor of the proponent.”
Id., citing Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.
2004). “In determining whether the proposed intervention is futile, courts must view the
application of the tendered pleadings—that is, whether those pleadings allege a legally sufficient
claim or defense and not whether the applicant is likely to prevail on the merits.” Dynamic Sys.,
Inc. v. Skanska USA Bldg. Inc., No. 19-10237, 2021 WL 6063609, at *2 (S.D.N.Y. Dec. 21, 2021)
(citation omitted).
Here, in his proposed Complaint and Jury Demand (R. Doc. 23-1), Movant alleges
violations by Defendants of the FLSA and the LWPA.12 The Court turns first to Movant’s FLSA
claim. There is a general two-year statute of limitations for violations of the FLSA. 29 U.S.C. §
255(a). The statute of limitations is extended to three years for willful violations of the FLSA.
Ramos v. Al-Bataineh, 599 F.App’x 548, 551 (5th Cir. 2015), citing 29 U.S.C. § 255(a). In his
proposed Complaint and Jury Demand, Movant alleges that Defendants “acted willfully” in failing
to pay him overtime premium wages, in violation of the FLSA.13 Based on this allegation, the
Court will analyze this issue using the three-year statute of limitations.
“A cause of action accrues for FLSA purposes ‘at each regular payday following the work
period during which the services were rendered for which the wage or overtime compensation is
claimed.’” Fabela v. AT&T Commc’ns Corp., No. 06-409, 2007 WL 3310714, at *2 (W.D. Tex.
Oct. 30, 2007), quoting Halferty v. Pulse Drug Co., 821 F.2d 261, 271 (5th Cir. 1987). For
purposes of § 225(a), an action commences when the plaintiff files the complaint. Id., citing
Halferty, 821 F.2d at 271.
12 R. Doc. 23-1 at 27-32 ¶¶ 142-162. The Court notes that Movant brings a third cause of action in his proposed
Complaint and Jury Demand, seeking a declaratory judgment establishing that he is an employee of Defendants,
thereby entitled to all rights and benefits of employment. Id. at 30 ¶ 156.
13 Id. at 29 ¶ 152.
In their Opposition, Defendants allege Movant worked as a distributor for Defendant
Flowers Baking Company of Baton Rouge, LLC (“FBC Baton Rouge”) from 1996 until on or
about June 16, 2013, when Movant’s Distributor Agreement was assumed by FBC New Orleans.14
Thus, per Defendants, “[Movant’s] last interaction with FBC Baton Rouge, the Defendant in this
matter, would have occurred sometime in June 2013.”15 Defendants continue, “[t]he statute of
limitations for [Movant’s] FLSA claims against FBC Baton Rouge would have started running at
that time on or about June 16, 2013, when his business’s contract with FBC Baton Rouge ended.”16
Applying a three-year statute of limitations, Defendants argue that Movant’s FLSA claim against
FBC Baton Rouge expired before Movant opted into the Richard case in the Western District on
January 12, 2017.17 See also 29 U.S.C. § 256 (b) (“In determining when an action is commenced
for the purposes of section 255 of this title, an action … shall be considered to be commenced in
the case of any individual claimant—if such written consent was not so filed or if his name did not
so appear [on the complaint]—on the subsequent date on which such written consent is filed in the
court in which the action was commenced.”). Defendants further note that, under the FLSA,
written consents do not relate back to the filing of the original complaint.18 Thus, per Defendants,
Movant’s claims under the FLSA are time-barred.
Defendants’ argument, therefore, is predicated on Movant’s contract being transferred
from FBC Baton Rouge to FBC New Orleans. And this allegation is substantiated by the
declaration of the Market Vice President for FBC Baton Rouge and deposition testimony of
14 R. Doc. 24 at 5; R. Doc. 24-1 at 5-6, 8-9 (40:23-41:7, 53:13-54:10); R. Doc. 24-2 at 2 ¶ 4.
15 R. Doc. 24 at 8.
16 Id.
17 Id. at 9.
18 Id. at 10. Defendants cite in support Woodward v. Fedex Freight East, Inc., 250 F.R.D. 178, 193 (M.D. Pa. 2008),
in which that court finds that “the written consents, when properly filed, will not relate back to the filing date of the
Amended Complaint.”
Movant.19 However, in his proposed pleading, Movant alleges only that he “works as a
deliveryman for Flowers in Louisiana from 1996 through the present date.”20 He also alleges that
the orders he and his colleagues place “go directly to Flowers Baton Rouge.”21 Thus, this
assumption of Movant’s contract by FBC New Orleans is not referenced in Movant’s proposed
pleading. Given the standard that the Court is to look only to Movant’s proposed pleading and to
view same in the light most favorable to him, accepting all well-pleaded facts as true, the Court
cannot, based on the allegations in Movant’s proposed pleading, find his FLSA claims to be time-
barred at this point in the litigation.
Defendants make a similar argument with regard to Movant’s LWPA claim. As argued by
Defendants, Movant’s LWPA claim is subject to a liberative prescription period of three years.22
Noting that under Federal Rule of Civil Procedure 23, the running of the statute of limitations in a
class action is tolled by the commencement of the suit and continues until certification of the class
is denied, Defendants again argue that the statute of limitations for Movant’s LWPA claim also
began to run in June of 2013, when Movant “stopped contracting with FBC Baton Rouge.”23 Per
Defendants, the statute of limitations ran for over two years until the Richard litigation was filed
on October 21, 2015.24 When class certification for the LWPA claims in the Richard case was
denied on April 9, 2021, the statute of limitations began running again.25 Because Movant did not
seek to intervene in this matter until June 20, 2022, more than a year after decertification of the
19 R. Doc. 24-1 at 8-9 (53:13-54:10); R. Doc. 24-2 at 2 ¶ 4.
20 R. Doc. 23-1 at 2 ¶ 4.
21 Id. at 23 ¶ 116.
22 R. Doc. 24 at 10. In support, Defendants cite to La. Civ. Code art. 3494, which establishes a three-year liberative
prescriptive period for “[a]n action for the recovery of compensation for services rendered, including payment of
salaries, wages, commissions, professional fees, fees and emoluments of public officials, freight, passage, money,
lodging, and board.” La. Civ. Code art. 3494(1).
23 R. Doc. 24 at 11.
24 Id.
25 Id.
class in Richard, “more than three years ha[ve] expired on the statute of limitations for [Movant’s]
LWPA claim and it is now time-barred.”26
As with Defendants’ argument that Movant’s FLSA claim is time-barred, Defendants’
assertion that Movant’s LWPA is time-barred is predicated on the allegation that Movant no longer
contracts with FBC Baton Rouge, an assertion which is not included in Movant’s proposed
pleading. For the reasons stated above, the Court cannot, based on Movant’s pleadings, find that
his LWPA claims are time-barred. Accordingly, the Court finds that, at this stage of the litigation,
it cannot be determined that Movant’s Motion to Intervene is futile. Thus, the Court now turns to
the question of whether Movant has satisfied the requirements for intervention.
B. Whether Movant is Entitled to Permissive Intervention
As stated above, Movant seeks to permissively intervene in this matter. Permissive
intervention is permitted upon a timely application when the movant has a claim or defense that
shares with the main action a common question of law or fact. Dynamic Sys., 2021 WL 6063609,
at *2, citing Fed. R. Civ. P. 24(b)(1)(B).
Here, Movant, a distributor for Flowers, claims he was wrongfully classified as an
“independent contractor” and is owed, inter alia, overtime compensation and reimbursement of
illegal deductions, which were denied him because he was not considered an “employee.”27
Plaintiffs seek the same in their Complaint.28 It is thus clear to the Court that Movant’s claims
share a common question of law or fact with the main action, and Defendants do not challenge this
assertion. As such, the only remaining question is whether Movant’s Motion to Intervene was
26 Id.
27 R. Doc. 23 at 2.
28 See R. Doc. 1 at 1, 2.
timely. The Court notes that Defendants also do not challenge the timeliness of Movant’s Motion
to Intervene in their Opposition.
“Determining the timeliness of a motion to intervene entails consideration of four factors:
(1) the length of time during which the would-be intervenor actually knew or reasonably should
have known of its interest in the case before it petitioned for leave to intervene; (2) the extent of
the prejudice that the existing parties to the litigation may suffer as a result of the would-be
intervenor’s failure to apply for intervention as soon as it knew or reasonably should have known
of its interest in the case; (3) the extent of the prejudice that the would-be intervenor may suffer if
intervention is denied; and (4) the existence of unusual circumstances militating either for or
against a determination that the application is timely.” Sierra Club v. Espy, 18 F.3d 1202, 1205
(5th Cir. 1994), citing Stallworth v. Monsanto Co., 558 F.2d 257, 264-66 (5th Cir. 1977).
However, the Fifth Circuit has cautioned that an analysis of timeliness “is contextual” and
“absolute measures of timeliness should be ignored.” Id., citing Stallworth, 558 F.2d at 266.
Similarly, “[t]imeliness is not determined solely by the length of time that passes before a motion
to intervene is made” and, instead, “must be determined from all the circumstances in the case.”
Assoc. of Prof. Flight Attendants v. Gibbs, 804 F.2d 318, 320, 321 (5th Cir. 1986). “The
requirement of timeliness is not a tool of retribution to punish the tardy would-be intervenor, but
rather a guard against prejudicing the original parties by the failure to apply sooner.” Nat’l
Horsemen’s Benevolent & Protective Ass’n v. Black, No. 21-071, 2022 WL 974335, at *3 (N.D.
Tex. Mar. 31, 2022) (quoting Sierra Club, 18 F.3d at 1205).
1. Length of Time
The first factor to consider when determining whether a motion to intervene is untimely is
the length of time during which the would-be intervenor knew or reasonably should have known
of its interest in the case before it petitioned for leave to intervene. Here, Movant first argues that,
upon decertification of the collective action in the Richard case, he was “lost in the shuffle” and
that “[a]n error of oversight by counsel representing plaintiffs in the previous, conditionally
certified class resulted in [Movant] being left out of all eight (8) actions pending before federal
district courts for the Western, Middle, and Eastern Districts of Louisiana.”29 Movant also argues
that Defendants were aware of his claims against them “as early as January 6, 2017, in the prior
Richard class and collective action.”30 Movant continues:
Furthermore, this action commenced only eight months ago. One month later the
proceeding was stayed by consent of the parties. It has been only six months since
the stay was lifted, and Flowers did not commence any discovery until one month
ago on May 17, 2022. This discovery in the form of Interrogatories and Request
for Production of Documents was largely duplicative.31
Defendant does not challenge Movant’s assertions here. And the Court notes that
Defendants did not challenge as untimely intervention by two now Plaintiffs who sought
intervention just over three months prior to Movant’s Motion.32 While Movant is seeking
intervention approximately eight months after this litigation was initiated, it is unclear to the Court
when Movant became aware of his failure to be included in any of the pending post-Richard federal
actions. Per Movant, “[t]he failure to including [him] was eventually discovered relatively
promptly.”33 This provides no substantive information to the Court, and the Court cannot
determine exactly how long Movant delayed in filing the instant Motion. Based on the eight-
month delay, the Court finds this factor weighs in favor of finding Movant’s Motion to Intervene
untimely.
29 R. Doc. 23-2 at 1.
30 Id. at 2.
31 Id.
32 See R. Docs. 16 and 20.
33 R. Doc. 23-2 at 1.
2. Prejudice to Existing Parties
The second timeliness factor to consider is the extent of the prejudice to the existing parties
to the litigation as a result of the would-be intervenor’s failure to apply for intervention as soon as
it knew or reasonably should have known of its interest in the case. However, the “prejudice must
be measured by the delay in seeking intervention, not the inconvenience to the existing parties of
allowing the intervenor to participate in the litigation.” Sierra Club, 18 F.3d at 1206, citing
Stallworth, 558 F.2d at 265. As stated above, Defendants do not address this issue. Movant argues
that his intervention in this litigation “would make adjudication of his claims more efficient”
because resolution of his claims will rely not only on the same or similar evidence as that of other
Plaintiffs, but also on the same witnesses, including expert witnesses, as the other Parties.34 Per
Movant, “[i]t would be much easier to hear [Movant’s] testimony with the other plaintiffs, rather
than to have the same four experts and Flowers management testify in an entirely separate trial
just for [Movant]…” The Court agrees.
Additionally, the fact discovery period for this case is still ongoing. Per Movant, “no
depositions have been conducted in this proceeding to date, and there has been no contested motion
practice,” and at the time Movant filed his Motion, the case is “well over a year away before
discovery will close.”35 Thus, at the time Movant’s Motion was filed, this case was still in its
infancy, further indicating Movant’s intervention will not prejudice the existing Parties. Also, as
stated above, Movant filed this Motion less than four months after two other now Plaintiffs sought
intervention in this litigation, much like Movant here, and Defendants did not oppose their
34 Id. at 3.
35 Id.
Motion.36 The Court therefore finds that this factor weighs in favor of finding Movants’ Motion
timely.
3. Prejudice to Movant
The third factor in determining timeliness is the extent of the prejudice that the would-be
intervenor may suffer if intervention is denied. As argued by Movant, if he should have to proceed
with his claims in a separate action, his “pursuit of justice” would become “economically
burdensome.”37 Per Movant, he will rely on the same expert witnesses as have already been
obtained by Plaintiffs in other proceedings pending in other federal courts in Louisiana.38 Further,
Movant asserts that “[e]arly preparation for trial in other similar proceedings has demonstrated an
expense of $35,000 to report on the relationship between one distributor and the Flowers
Defendants.”39 Movant claims that if he “had to obtain a separate expert for both reporting and
trial and deposition testimony, he likely will not be able to afford the costs, and/or the expense of
the expert may be grossly out of proportion to [Movant’s] recovery.”40 Intervention, therefore,
“would permit [him] to share the expense among fourteen (14) plaintiffs rather than for him to
bear the suit expenses, including expert witnesses, individually.”41 Recognizing the potential
prejudice to Movant should he not be allowed to intervene, and recognizing that Defendants do
not dispute this assertion, the Court finds this factor also weighs in favor of finding Movants’
Motion timely.
36 See R. Docs. 16 and 20.
37 R. Doc. 23-2 at 4.
38 Id.
39 Id.
40 Id.
41 Id.
4. Unusual Circumstances
The final factor to consider in determining timeliness is the existence of unusual
circumstances militating either for or against a determination that the application is timely.
Movant argues that, because of his involvement in this Richard litigation, Defendants have known
about his claim “for five years now,” meaning “[t]his is not in any way a new claim about which
Flowers is learning for the first time.”42 Per Movant, Defendant knew that the Richard action was
decertified “and that the claimants in that action have continued their claims throughout eight
actions pending before the Western, Middle, and Eastern Districts of Louisiana.”43 Given this
procedural history, Movant claims his request to intervene “is much different than cases where
defendants are receiving notice of the claim upon receipt of the Motion.”44 The Court agrees that
Defendants have had prior notice of Movant’s intent to bring a claim against them. It therefore
finds this factor also weighs in favor of finding Movant’s Motion timely. Thus, as three of the
four timeliness factors weigh in Movant’s favor, as Movant’s claims mirror those of current
Plaintiffs in this litigation, and as Defendants were aware of Movant’s involvement in the Richard
litigations, indicating Movant was pursuing a claim against them, the Court, in exercising the broad
discretion given it, finds Movants’ Motion to Intervene timely.
IV. CONCLUSION
Accordingly,
42 Id.
43 Id. at 4-5.
44 Id. at 5.
IT IS ORDERED that the Motion to Intervene (R. Doc. 23) filed by Movant Gordon Frank
is GRANTED. The Clerk’s Office is instructed to file Movant’s Complaint and Jury Demand
(R. Doc. 23-1) into the record.
Signed in Baton Rouge, Louisiana, on March 30, 2023.
S
SCOTT D. JOHNSON
UNITED STATES MAGISTRATE JUDGE