IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10347

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

Before REAVLEY, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:

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 

United States Court of Appeals

Fifth Circuit

FILED

March 27, 2017

Lyle W. Cayce

Clerk
No. 16-10347

2

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 

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 
No. 16-10347

3

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.