     Case: 16-10347      Document: 00513927863         Page: 1    Date Filed: 03/27/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                          FILED
                                                                       March 27, 2017
                                      No. 16-10347
                                                                       Lyle W. Cayce
                                                                            Clerk
STEPHANIE ODLE, on behalf of herself and all others similarly situated, et
al;

               Plaintiffs

WAL-MART STORES, INCORPORATED,

               Defendant - Appellee

v.

ORALIA FLORES; ROSIE LUJAN; ALICE BISCARDI; DEBBIE
HAYWORTH; BRENDA HENDERSON; LINDA MCFADDEN; MARGARITA
MURILLO; SANDRA PHELAN, on behalf of themselves and others similarly
situated,

               Movants - Appellants




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:11-CV-2954


Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 16-10347    Document: 00513927863     Page: 2   Date Filed: 03/27/2017




      This is a case involving would-be plaintiff–intervenors who filed their
motion to intervene after the district court had already entered a Rule 41(a)(1)
stipulated dismissal of the plaintiffs’ claims. The district court believed it
lacked jurisdiction to consider the motion.    It did not have the benefit of
Sommers v. Bank of American, N.A., decided a few months later, which rejected
the “suggest[ion] that intervention is always improper after a case has been
dismissed.” 835 F.3d 509, 513 (5th Cir. 2016). Sommers controls. The district
court has jurisdiction to consider the would-be intervenors’ motion. See id. at
513 & n.5; see also Ford v. City of Huntsville, 242 F.3d 235, 238–40 (5th Cir.
2001).
      In a Rule 28(j) letter, appellee Wal-Mart Stores, Inc. (“Wal-Mart”)
asserts that Sommers is contrary to prior opinions of this Court and must be
disregarded under the rule of orderliness. See Arnold v. U.S. Dep’t of Interior,
213 F.3d 193, 196 n.4 (5th Cir. 2000) (“[U]nder the rule of orderliness, to the
extent that a more recent case contradicts an older case, the newer language
has no effect.”). But Sommers reconciled those supposedly problematic cases,
see 835 F.3d at 513 n.5, and Wal-Mart’s arguments amount to a request that
we second-guess Sommers. That the rule of orderliness prohibits.
      Other cases cited by Wal-Mart but not mentioned by Sommers do not
alter our conclusion. Wal-Mart cites Gaines v. Dixie Carriers, Inc., for the
proposition that “when a case is dismissed by joint consent the intervention
falls with it.” There, we noted that “Appellee’s brief suggests that the case
having been dismissed by joint consent the intervention falls with it,” but we
rejected the contention. Gaines, 434 F.2d 52, 54 (5th Cir. 1970). Meinecke v.
H & R Block of Houston, 66 F.3d 77 (5th Cir. 1995) (per curiam), United States
v. Kellogg (In re West Texas Marketing Corp.), 12 F.3d 497, 501 (5th Cir.1994),
and Williams v. Ezell, 531 F.2d 1261 (5th Cir. 1976), have nothing to do with
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                                  No. 16-10347
intervention or the particular jurisdictional question here presented and are
not inconsistent with Sommers.
      According to Wal-Mart, Sommers also indicates that the would-be
intervenors’ motion is untimely. This is consistent with its merits brief, which
flagged but reserved arguments that the would-be intervenors have simply
failed to comply with Rule 24 and, specifically, “cannot satisfy” its “timeliness
requirement.” According to Wal-Mart, if jurisdiction is found to exist, we
should remand for consideration of Rule 24’s basic requirements.
      We agree. On appeal, the would-be intervenors have argued that the
district court previously erred by dismissing the original plaintiffs’ class claims
as untimely based on its determination that equitable tolling of the statute of
limitations under American Pipe and Construction Co. v. Utah, 414 U.S. 538
(1974), is improper in a subsequent class action. But making this argument is
the would-be intervenors’ very object, their self-declared “purpose” of
intervening. We will not skip ahead to answer the merits question while the
would-be intervenors’ status is in doubt. Nor do we express any opinion on
whether intervention is warranted.
      We VACATE the district court’s order denying intervention on
jurisdictional grounds and REMAND for further proceedings. The motion for
leave to intervene should be considered under Rule 24.




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