RUIZ-HANCE v. PUERTO RICO AQUEDUCT SEWER AUTH

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Docket Number

Civil No. 06-1096 (PG).

Attorney(S)

Francisco M. Troncoso-Cortes, Richard Schell-Asad, Troncoso Schell, San Juan, PR, for Plaintiff. Edgardo L. Rivera-Rivera, Rivera Fernandez Reboredo PSC, Raul Castellanos-Malave, E. Umpierre Suarez, PSC, Hector Cuebas-Tanon, Vicente Cuebas, Francisco J. Amundaray-Rodriguez, Mercado Soto, Francisco E. Colon-Ramirez, Francisco J. Colon-Pagan, Colon Colon PSC, PHV Charles Scott Toomey, Campbell, Campbell, Edwards Conroy, Eduardo Castillo-Blanco, Ivan M. Fernandez Law Office, Pedro Santiago-Rivera, Romulo A. Suero-Ponce, Reichard Escalera, Nora Vargas-Acosta, Ivan M. Fernandez Law Office, San Juan, PR, for Defendants. Nicolas Nogueras-Cartagena, Nicolas Nogueras Law Offices, San Juan, PR, for Intervenor Plaintiffs.

Judges

Juan Manuel Perez-Gimenez

Acts

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Smart Summary

Factual and Procedural Background

This case arises from the tragic death of minor Antonio Luis Ruiz Ramos, who drowned after falling into an open manhole. Initially, a consolidated civil action (Civil Case No. 04-1351) was filed by multiple plaintiffs, including members of the Ruiz Piñero family, against various defendants such as the Commonwealth of Puerto Rico, Puerto Rico Aqueduct and Sewer Authority (PRASA), and others, alleging violations under 42 U.S.C. § 1983 and several constitutional amendments, along with state-law claims under Article 1802 of the Puerto Rico Civil Code.

The consolidated action was dismissed for failure to state a federal claim under Section 1983, resulting in lack of federal jurisdiction. Subsequently, a new suit was filed by some of the original plaintiffs under diversity jurisdiction, asserting wrongful death and emotional damages claims pursuant to Article 1802. The plaintiffs in this suit are citizens of Florida, while defendants are residents or entities of Puerto Rico.

Shortly after the filing of the new suit, a group of intervenors, who were plaintiffs in the original consolidated case, sought to intervene as of right under Rule 24(a)(2) to assert inherited claims for the decedent’s pain and suffering prior to death. The Court initially denied intervention, a decision affirmed in part and remanded by the First Circuit to determine whether intervention was proper as to the state-law claims without destroying diversity jurisdiction.

Following the remand, the intervenors renewed their motion to intervene, arguing they meet three of the four prerequisites under Rule 24(a)(2), including having an interest in the suit, a practical impediment to protecting that interest if excluded, and that existing parties do not adequately represent their interests. The defendants opposed the motion primarily on grounds that intervention would destroy complete diversity and thus divest the Court of jurisdiction.

Legal Issues Presented

Whether the applicants for intervention satisfy the requirements for intervention as of right under Federal Rule of Civil Procedure 24(a)(2) in a diversity jurisdiction case.
If intervention is proper, whether the intervention by nondiverse parties would destroy complete diversity, thereby divesting the Court of jurisdiction under 28 U.S.C. § 1332 and 28 U.S.C. § 1367(b).
Whether the intervenors are indispensable parties under Rule 19(b) of the Federal Rules of Civil Procedure, such that their joinder is required despite potential jurisdictional consequences.

Arguments of the Parties

Intervenors' Arguments

Maria Ramos Piñero, as mother of the deceased minor, inherited a cause of action for her son’s pain and suffering prior to death, which she shares with plaintiff Luis A. Ruiz-Hance.
They have a significant interest in the suit because factual and substantive determinations may affect their claims, implicating claim or issue preclusion principles.
The disposition of the case threatens to create a practical impediment to protecting their interests if they are not allowed to intervene.
Existing parties, particularly Luis A. Ruiz-Hance, do not adequately represent their interests, as Maria Ramos Piñero had custody of the decedent and better insight into his psyche and fears.
They argue they are not indispensable parties under Rule 19(b) and thus their intervention should not destroy diversity jurisdiction.

Defendants' Arguments

The Municipality and other defendants contend that intervention by the applicants would destroy the complete diversity required for federal jurisdiction under 28 U.S.C. § 1332.
The Court should decline supplemental jurisdiction pursuant to 28 U.S.C. § 1367(b) because allowing intervention by nondiverse parties would be inconsistent with the jurisdictional requirements.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
B. Fernandez Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541 (1st Cir. 2006)	Prerequisites for intervention as of right under Fed. R. Civ. P. 24(a)(2) and Rule 19(b) indispensability analysis.	Guided the Court in assessing whether intervenors met the four prerequisites for intervention and whether they were indispensable parties whose joinder would destroy diversity jurisdiction.
In re Olympic Mills Corp., 477 F.3d 1 (1st Cir. 2007)	Permitting nondiverse but dispensable intervenors without divesting diversity jurisdiction.	The Court distinguished this case from Olympic Mills, finding intervenors’ interests arose at the commencement of the suit and thus intervention would destroy diversity.
Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426 (1991)	Jurisdiction depends on the state of things at the time the action is commenced; subsequent events generally do not divest jurisdiction.	Supported the principle that intervention by nondiverse parties arising after filing might not divest jurisdiction, but here the intervenors’ interest existed at filing.
Arias-Rosado v. Gonzalez Tirado, 111 F.Supp.2d 96 (D.P.R. 2000)	Puerto Rico law on survivorship claims and heirs’ rights to pain and suffering damages of decedent prior to death.	Used to analyze the nature of intervenors’ interests and whether absent heirs are indispensable parties.
Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994)	Federal courts are courts of limited jurisdiction.	Reinforced the principle that courts must ensure jurisdictional prerequisites are met before permitting intervention.
Provident Tradesmens Bank Trust Co. v. Patterson, 390 U.S. 102 (1968)	Rule 19(b) factors regarding indispensability and equity considerations.	Informed the Court’s application of Rule 19(b) to assess whether intervenors were indispensable parties.
Picciotto v. Continental Casualty Co., 512 F.3d 9 (1st Cir. 2008)	Rule 19(b) dismissal when joinder of necessary parties is not feasible but they are indispensable.	Supported the framework for indispensability analysis applied by the Court.

Court's Reasoning and Analysis

The Court began by reaffirming the limited jurisdiction of federal courts and the strict application of the complete diversity rule under 28 U.S.C. § 1332, which requires all plaintiffs to be diverse from all defendants at the time of filing. The intervenors are nondiverse with respect to defendants, threatening to destroy diversity jurisdiction if allowed to intervene as plaintiffs.

The Court reviewed the four prerequisites for intervention as of right under Rule 24(a)(2): timeliness, interest in the property or transaction, practical impairment of the ability to protect that interest, and inadequate representation by existing parties. The intervenors had already been found timely and to have an interest relating to the suit.

However, the Court found that the intervenors failed to show that the disposition of the action threatened to create a practical impediment to their ability to protect their interests. The Court relied on Puerto Rico law, as explained in Arias-Rosado v. Gonzalez Tirado, which treats the estate and heirs as a community of property where a judgment in favor of one heir benefits all others. Since plaintiff Luis A. Ruiz-Hance already brings the survivorship claim on his own behalf, a favorable judgment would benefit absent heirs, and an unfavorable judgment would prejudice only him, leaving other heirs their state-law remedies.

Because the intervenors failed to satisfy one of the essential requirements for intervention, the Court deemed it unnecessary to address whether existing parties adequately represent their interests.

Alternatively, the Court rejected the intervenors’ reliance on In re Olympic Mills Corp., which allows nondiverse dispensable intervenors post-filing without destroying diversity jurisdiction, because here the intervenors’ interests arose at the time the suit commenced, not afterward. The Court emphasized that plaintiffs cannot evade the complete diversity requirement by excluding nondiverse potential co-plaintiffs at filing and then waiting for them to intervene.

Finally, the Court acknowledged that the intervenors are not indispensable parties under Rule 19(b), but this fact does not override the failure to meet the intervention prerequisites nor permit destruction of diversity jurisdiction.

Holding and Implications

The Court hereby DENIES the intervenors’ renewed motion to intervene as of right pursuant to Rule 24(a)(2).

The direct effect of this decision is that the intervenors will not be permitted to join the federal diversity action as plaintiffs, preserving the complete diversity jurisdiction of the Court. The ruling reinforces the strict application of the complete diversity rule and prevents plaintiffs from circumventing jurisdictional requirements by excluding nondiverse parties initially and later seeking their intervention. No new legal precedent was established beyond the application of existing First Circuit and Supreme Court jurisprudence.

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Luis A. RUIZ-HANCE, ET AL., Plaintiffs, v. PUERTO RICO AQUEDUCT AND SEWER AUTHORITY (PRASA), et al., Defendants.

OPINION AND ORDER

JUAN M. PEREZ-GIMENEZ, District Judge.

Before the Court now is a renewed motion to intervene as a matter of right pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure filed by Maria Ramos Piñero, Keisha Ruiz Ramos, Héctor Luis Ramos Piñero, Nancy Ivette Ramos Piñero, Miguel L. Ramos Piñero, Orlando del Valle Crespo, and minor Ishell Marie Dávila Villalobos (hereinafter collectively called "intervenors" or "applicants") (Docket No. 91). After a careful review of the parties' motions and the applicable law, this Court finds that the applicants' motion to intervene should be DENIED.

I. BACKGROUND

Civil Case No. 04-1351 was a consolidated action filed by the plaintiffs in the case before this Court in conjunction with the applicants to intervene. The plaintiffs in said action were the following: Maria Ramos Piñero, Keisha Ruiz Ramos, Héctor Luis Ramos Piñero, Nancy Ivette Ramos Piñero, Miguel L. Ramos Piñero, Orlando del Valle Crespo, minor Ishell Marie Dávila Villalobos, Luis A. Ruiz-Hance, Norma Soto-Robles, Valeria Ruiz-Soto, Brian Omar Gonzalez, Luis Armando Gonzalez. The consolidated action was brought against defendants the Commonwealth of Puerto Rico, Puerto Rico Aqueduct and Sewer Authority ("PRASA"), Ondeo de Puerto Rico, Inc. ("Ondeo"), the Department of Transportation and Public Works, the Puerto Rico Highway Authority ("PRHA"), the Municipality of San Juan ("the Municipality") and Pep Boys, Manny Moe Jack of Puerto Rico, Inc. ("Pep Boys") pursuant to the provisions of 42 U.S.C. § 1983 ("Section 1983") and the Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution. Supplemental jurisdiction was invoked to include a claim for damages under Article 1802 of the Puerto Rico Civil Code ("Article 1802"), P.R. LAWS ANN. tit. 31, § 5141.

Just like the above-captioned claim, Civil Case No. 04-1351 involved "a most unfortunate event: the death of minor Antonio Luis Ruiz Ramos, who plunged into an open manhole, and consequently drowned." Ramos Piñero v. Commonwealth of Puerto Rico, 359 F.Supp.2d 56 (D.P.R. 2005). However, that case was dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because the complaint's allegations failed to state a claim under Section 1983, and thus, federal jurisdiction was lacking. See Civil Case No. 04-1351, Docket No. 92.

Thereafter, on January 25, 2006, some of the plaintiffs in Civil Case No. 04-1351 — Luis A. Ruiz-Hance, Norma Soto-Robles, Valeria Ruiz-Soto, Brian Omar Gonzalez and Luis Armando Gonzalez — filed suit against defendants the PRASA, Ondeo, the PRHA, the Municipality, Asunción Rodriguez Crespo, Israel Rodriguez and Blas Sandoval seeking redress for their emotional damages as a result of the wrongful death of minor Antonio Luis Ruiz Ramos pursuant to the provisions of Article 1802. As father of the decedent, the complaint also includes Luis A. Ruiz-Hance's inherited claim for the pain and suffering of his son prior to his death. See Amended Complaint, Docket No. 118. This time around, federal jurisdiction is predicated on diversity of citizenship pursuant to 28 U.S.C. § 1332. Id.

The claims against PRASA and Ondeo have been subsequently dismissed without prejudice. See Docket No. 150.

The named plaintiffs allege to be citizens of the State of Florida. See Complaint, Docket No. 1, ¶ 1.

On February 7, 2006, — two weeks after the above-captioned claim was filed — the remaining plaintiffs from the previous civil action filed a "Motion Requesting Intervention as a Matter of Right under Rule 24(a)" and a "Complaint in Intervention" attached. See Docket No. 3. The attached intervenor complaint was filed pursuant to the provisions of Section 1983 and the Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution, and requested that this Court exercise supplemental jurisdiction of the state-law damages claim. The Court denied this request for intervention because their claims under Section 1983 and the Fourth, Fifth, Ninth, and Fourteenth Amendments had already

The applicants for intervention are: Maria Ramos Piñero, Keisha Ruiz Ramos, Héctor Luis Ramos Piñero, Nancy Ivette Ramos Piñero, Miguel L. Ramos Piñero, Orlando del Valle Crespo, and minor Ishell Marie Dávila Villalobos.

been dismissed with prejudice by Judge Casellas in Civil Case 04-1351. See Docket No. 10.

The applicants timely appealed this order. The First Circuit affirmed that the movants were barred from refiling their federal claims, however, remanded the case for this Court to determine whether or not the movants were entitled to intervene as to the state law claim. See Docket No. 72. Specifically, the First Circuit ordered this Court to determine if movants met the requirements for intervention under Rule 24(a)(2) discussed in B. Fernandez Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541 (1^st Cir. 2006). The First Circuit also indicated that if this Court determined that although the intervenors met the requirements of Rule 24, intervention would destroy complete diversity, then this Court ought to apply the indispensability analysis mandated by Rule 19 of the Federal Rules of Civil Procedure. The First Circuit thus remanded so that this Court make further findings and engage in the applicable analysis.

In accordance with this ruling, this Court ordered the applicants to refile their motion to intervene wherein they properly argue three of the four requisites for intervention of right under Rule 24 of the Federal Rules of Civil Procedure, namely: (a) that they have an interest relating to the property or transaction that forms the basis of the ongoing suit; (b) that the disposition of the action threatens to create a practical impediment to their ability to protect their interest; and (c) that no existing party adequately represents their interests. See Docket No. 90.

In the November 15, 2007 Opinion and Order, this Court found that the intervenors complied with the first of the four presequisites for intervention under Fed.R.Civ.P. 24(a)(2): that the application for intervention be timely filed. See Docket No. 90 at page 5.

The applicants for intervention complied with this Court's order. See Docket No. 91. In the motion, intervenor plaintiff Maria Ramos-Piñero contends that as the mother of the deceased minor she inherited a cause of action from her son for the damages he suffered during the moments prior to his death. Accordingly, she argues that she has an interest in the above-captioned claim because the cause of action that arises from her son's pain and suffering before his death is one claim that was inherited by both Luis A. Ruiz-Hance and herself. The intervenors also claim that any factual and substantive determinations reached in this case regarding the death of the minor may become controlling upon the claims of all of the absent parties. Therefore, claim or issue preclusion principles may apply to their claims and thus, the disposition of this action threatens to create a practical impediment to their ability to protect their interests. With regards to the third requirement, they argue that although plaintiff Luis A. Ruiz-Hance's stakes in the inherited claim are as high as Maria Ramos', he does not adequately represent her interests because she had custody of their son, and thus, she has better insight upon their deceased son's psyche and fears. Finally, the intervenors argue that they are not indispensable parties pursuant to the provisions of Rule 19(b) of the Federal Rules of Civil Procedure.

Co-defendant the Municipality timely opposed the intervenors' motion (Docket No. 95), and co-defendants Israel Rodriguez and Blas Sandoval joined its opposition (Docket No. 97). In its response, the Municipality simply argues that pursuant to 28 U.S.C. § 1367, this Court should not allow the applicants' intervention because it would destroy diversity. In their reply, the intervenors argued that pursuant to In re Olympic Mills Corp., 477 F.3d 1 (1^st Cir. 2007), the addition of necessary but dispensable, nondiverse intervenors does not divest the district court of diversity jurisdiction.

II. DISCUSSION A. Intervention and the Complete Diversity Rule

"The district courts of the United States are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute." See In re Olympic Mills Corp., 477 F.3d at 6 (citing Kokkonen v. Guardian Life Ins. Co. Of Am., 511 U.S. 375, 377 (1994)).

In 28 U.S.C. § 1332, the sole basis for jurisdiction in this case, Congress bestowed upon the district courts original jurisdiction in civil actions between citizens of different states. The diversity requirement of § 1332 must be complete. In cases involving multiple plaintiffs or defendants, the presence of but one nondiverse party divests the district court of original jurisdiction over the entire action.

In re Olympic Mills Corp., 477 F.3d at 6 (internal citation omitted).

The complete diversity rule "is most inflexibly applied at the time of filing, for it has long been settled that `the jurisdiction of the court depends upon the state of things at the time of the action brought.'" Id. at 7. Notwithstanding, "[t]he postfiling context is more elastic." Id. As a general matter, "if jurisdiction exists at the time an action is commenced, such jurisdiction may not be divested by subsequent events."Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991) (internal citations omitted) (holding substitution under FED.R.CIV.P. 25(c) neither destroyed diversity or divested the court of jurisdiction where added party was not indispensable at the time complaint was filed and had no interest in outcome until sometime after suit was commenced).

"There are exceptions, however: the postfiling introduction of a nondiverse party may, in certain circumstances, spoil the jurisdiction that obtained when the suit commenced." In re Olympic Mills Corp., 477 F.3d at 7 (internal citations omitted). For example, the supplemental jurisdiction statute, 28 U.S.C. § 1367, identifies situations in which supplemental jurisdiction shall not be exercised, in particular where the joinder of persons seeking to be made parties under Federal Rules of Civil Procedure 14, 19, 20 or 24 would erode the complete diversity rule. Specifically, subsection (b) of the relevant statute provides that:

In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.

28 U.S.C. § 1367(b).

Specifically, Federal Rule of Civil Procedure 24(a)(2), provides in pertinent part that:

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, unless existing parties adequately represent that interest.

FED.R.CIV.P. 24(a)(2). Consequently, according to the relevant caselaw, a party desiring to intervene in a civil action under Rule 24(a)(2) must fulfill the following prerequisites: (1) a timely application for intervention; (2) a demonstrated interest relating to the property or transaction that forms the basis of the ongoing suit; (3) a satisfactory showing that the disposition of the action threatens to create a practical impediment to their ability to protect their interest; and (4) a satisfactory showing that existing parties inadequately represent their interest. See B. Fernandez Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541, 544-545 (1^st Cir. 2006); see also Public Service Co. of New Hampshire v. Patch, 136 F.3d 197, 204 (1^st Cir. 1998). "The failure to satisfy all four conditions dooms intervention."Kellogg USA, Inc., 440 F.3d at 545.

Now, when a nondiverse party seeking to intervene satisfies the requirements of Federal Rule of Civil Procedure 24(a)(2), the First Circuit Court of Appeals has held that a court must then turn to the indispensability analysis mandated by Rule 19(b).Kellogg USA, Inc., 440 F.3d at 547. "Rule 19(b) provides that, if a nonparty is deemed necessary to litigation but joining that nonparty would deprive the court of jurisdiction, the court should permit the action to proceed only to the extent that `equity and good conscience' warrant." Id. (citing Provident Tradesmens Bank Trust Co. v. Patterson, 390 U.S. 102, 109 (1968)). See also Picciotto v. Cont'l Cas. Co., 512 F.3d 9, 15 (1^st Cir. 2008) (Rule 19(b) "provides for the dismissal of suits when the court determines that the joinder of the `necessary' parties is not feasible, but that they are, nonetheless, so `indispensable' that the suit must not be litigated without them.").

In proceeding with its inquiry into both necessity and indispensability, a district court should keep in mind the policies that underlie Rule 19, including the public interest in preventing multiple and repetitive litigation, the interest of the present parties in obtaining complete and effective relief in a single action, and the interest of absentees in avoiding the possible prejudicial effect of deciding the case without them.

Id. at 15-16 (citing Acton Co. v. Bachman Foods, Inc., 668 F.2d 76, 78 (1st Cir. 1982)).

To that effect, the First Circuit Court has concluded that when federal jurisdiction is premised on diversity of citizenship, the addition of a nondiverse intervenor under Rule 24(a)(2) that is also an indispensable party under Rule 19(b) divests the court of diversity jurisdiction. Kellogg USA, Inc., 440 F.3d at 544. Notwithstanding the foregoing, the First Circuit Court has bypassed the complete diversity rule in situations where a non-diverse intervenor is not an indispensable party. See In re Olympic Mills Corp., 477 F.3d at 11-12.

B. Analysis

In the case under review, the original and amended complaints alleged only state-law claims, observed that plaintiffs were all residents of the State of Florida and that the defendants were all corporations, legal entities or residents of Puerto Rico. Therefore, the plaintiffs properly invoked the district court's diversity jurisdiction. However, the citizenship of the applicants for intervention is the same as that of the defendants. Nonetheless, they wish to enter the case as nondiverse intervenor plaintiffs arguing, in sum, that because they have the right to intervene pursuant to Rule 24(a)(2) and are not indispensable parties, their intervention should be allowed and the case should not be dismissed. We disagree. Having reviewed the motions and the applicable law, the Court agrees with intervenors that they are not indispensable parties, however, finds that the arguments set forth in favor of their intervention fail.

It must be noted that in their motion, the intervenors' arguments focus on intervenor Maria Ramos interest in the damages claim she inherited along with plaintiff Luis A. Ruiz-Hance, thereby practically ignoring the remaining intervenors' arguments in favor of their own individual intervention. Accordingly, in our analysis, we shall do the same as intervenors have been given ample opportunity to properly present their arguments before this Court.

"In Puerto Rico, the cause of action for the pain and suffering experienced by a decedent prior to his/her death passes on to his/her estate and is actionable by the heirs as part of their legal portion known as the `legitima'." Arias-Rosado v. Gonzalez Tirado, 111 F.Supp.2d 96, 98 (D.P.R. 2000) (citing Blas Toledo v. Hospital, 146 P.R. Dec. 267 (1998); Molina v. C.R.U.V., 114 P.R. Dec 295, 313 (1983); Vda. de Delgado v. Boston Ins. Co., 101 P.R. Dec. 598, 607 (1973)). "Likewise, under Puerto Rico inheritance law a succession or a decedent's estate is not an entity distinct and separate from the persons composing it." Arias-Rosado, 111 F.Supp.2d at 98. On the contrary, by simply accepting the estate, "each . . . heir acquires an independent right over the estate[,] and the abstract portion of the estate that belongs to him/her immediately enters his/her patrimony as an independent and autonomous value that only belongs to him/her and of which he/she can dispose of with total liberty." Id. at 99 (citing Kogan v. Registrador, 125 P.R. Dec. 636, 652 (1990)). Moreover, "the Supreme Court of Puerto Rico has consistently held that being a succession a compulsory community of property and rights, any of the heirs . . . may appear at the trial to defend his/her common rights. If he/she prevails, his/her victory is for the benefit of all the co-owners." Arias-Rosado, 111 F.Supp.2d at 99 (citing Danz v. Suau, 82 P.R. Dec. 609 (1961); Tropigas de Puerto Rico v. Tribunal Superior, 102 P.R. Dec. 630, 641 (1974)).

In Arias-Rosado v. Gonzalez Tirado, 111 F.Supp.2d 96 (D.P.R. 2000), one of the plaintiffs was the daughter of a driver who was killed in an automobile accident. She filed a wrongful death diversity suit seeking redress for both her own pain and suffering and that of the decedent. Whereas the plaintiffs were residents of the State of Florida, the remaining members of the succession who were absent from this litigation were Puerto Rico residents. As per the previous discussion on Puerto Rico's law of succession, the Court concluded that the nondiverse members of the estate were not indispensable parties as to the survivorship cause of action.See Arias-Rosado, 111 F.Supp.2d at 99. Most importantly, the Court added that there was no risk that the interest of the absent heirs would be impaired or not well-protected because "any judgment in favor of one or more participants benefits all other participants in a community of property whereas an adverse judgment only prejudices the one who filed the judicial action." Id. (citing Danz v. Suau, 82 P.R. Dec. 609 (1961); Perez v. Cancel, 76 P.R. Dec. 667, 675 (1954)). The Court thus concluded that complete relief could be accorded in the absence of the non-diverse heirs.

In the case now before the Court, it is clear that plaintiff Luis A. Ruiz-Hance brings the survivorship cause of action in his capacity as an heir of his son's estate, that is, on his own behalf. See Arias-Rosado, 111 F.Supp.2d at 99. Accordingly, "a favorable judgment to [Ruiz-Hance] will be dispositive of the survivorship claim and benefit the absent heirs. However, an unfavorable judgment will only prejudice [him] and not the absent heirs who still will have available the suit filed in state court wherein they asserted the survivorship claim." Id.

As a result of the foregoing discussion, this Court finds that the intervenors fail to meet one of the requirements a party that desires to intervene in a civil action under Rule 24(a)(2) must fulfill: a satisfactory showing that the disposition of the action threatens to create a practical impediment to their ability to protect their interest. Because the applicants for intervention do not satisfy one of the requirements imposed by the law, it is unnecessary to discuss whether the intervenors had a demonstrated interest relating to the property or transaction that forms the basis of the ongoing suit, and whether or not the existing parties inadequately represent their interest.

In the alternative, even if the applicants were entitled to intervene as a matter of right under Rule 24(a)(2), the intervenors' reliance in In re Olympic Mills Corp., 477 F.3d 1 (1^st Cir. 2007) is inapposite. In holding that the addition of a nondiverse dispensable intervenor as a matter of right did not divest the court of diversity jurisdiction, the First Circuit Court in In re Olympic Mills Corp. distinguished the case fromKellogg stating that "a plaintiff cannot circumvent complete diversity by artful pleading." In re Olympic Mills Corp., 477 F.3d at 11. The Court also noted that its decision was based on the fact that the interests of the intervenors did not arise until well after the suit had commenced. That is certainly not the case here. The interest of the intervenors in this case arose at the same time as that of the plaintiffs: when minor Antonio Luis Ruiz Ramos accidentally plunged into an open manhole and consequently drowned.

Moreover, "the intervention of a nondiverse party as a plaintiff raises a suspicious judicial eyebrow under § 1332." Id. at 12 n. 9 (internal citations omitted). It is clear to this Court that the plaintiffs in this case could not have brought the present damages claim in federal court if they would have named the intervenors as co-plaintiffs, like they did when they originally brought suit in 2004. Accordingly we hereby hold that a plaintiff cannot leave nondiverse potential co-plaintiffs out of the original lawsuit and then wait for them to intervene or be joined otherwise.

In conclusion, we find that the elements of Rule 24(a)(2) of the Federal Rules of Civil Procedure for holding a party as having the right to intervene are not present here. In addition, the intervenors cannot cheat the complete diversity rule by waiting until the diverse plaintiffs file suit, and then request intervention as of right on the grounds that they are dispensable parties based on the holdings of In re Olympic Mills Corp..

III. CONCLUSION

In light of the foregoing, the Court DENIES intervenors' renewed motion to intervene (Docket No. 91).

IT IS SO ORDERED.