United States District Court, N.D. Indiana, Fort Wayne Division
ESTATE OF THOMAS E. PHELPS by Julie Maloy, Special Administratrix of the Estate of Thomas Phelps, deceased, Plaintiff,
JOHN A. WINTERS, FRONTIER NORTH, INC., FRONTIER COMMUNICATIONS CORPORATION, DOES I through XX, inclusive and ROE Business Entities I through XX, Defendants.
OPINION AND ORDER
R. CHERRY JUDGE
matter is before the Court on the Motion of Erica Book to
Intervene of Right or, in the Alternative, Permissively [DE
31], filed by Erica Book on September 7, 2018. On September
20, 2018, Plaintiff Estate of Thomas E. Phelps by Julie
Maloy, Special Administratrix of the Estate of Thomas Phelps,
deceased (“Plaintiff”) filed a response, and, on
September 27, 2018, Erica Book filed a reply. This matter is
also before the Court on a Supplemental Motion of Erica Book
to Intervene of Right or, in the Alternative, Permissively
[DE 36], filed at the direction of the Court on October 24,
2018. Plaintiff filed a response to the supplemental motion
on November 7, 2018. Erica Book did not file a reply in
support of the supplemental motion, and the time to do so has
passed. For the reasons set forth below, the Court denies
Erica Book's request to intervene.
September 7, 2018, Erica Book filed the instant Motion to
Intervene. However, she did not attach the proposed
intervenor pleading as required by Federal Rule of Civil
Procedure 24(c). Accordingly, on October 17, 2018, the Court
took under advisement the Motion to Intervene and ordered
Erica Book to file on or before October 24, 2018, a
supplemental motion, attaching the proposed intervenor
pleading as an exhibit. The Court cautioned that failure to
do so may result in the denial of the Motion to Intervene.
The Court further set deadlines for a response to and a reply
in support of the supplemental motion. As noted above, Book
filed the supplemental motion on October 24, 2018, with a
proposed intervenor pleading as an exhibit.
E. Phelps and Erica Book were married on October 19, 2013. As
of January 28, 2015, Erica Book was no longer living in the
marital home; the parties dispute the reason for Book's
departure. The parties also dispute where Erica Book was
living once she was no longer living in the marital home. On
February 17, 2015, Erica Book filed for divorce from Thomas
E. Phelps in the Steuben County Circuit Court, and the final
hearing was set for December 1, 2015.
October 29, 2015, Thomas E. Phelps was killed by a driver of
a Frontier semi-truck.
Book has one child with Thomas E. Phelps, K.P., who was a
minor and dependent of Erica Book at the time of Thomas E.
Phelps' death. Phelps was survived by one other dependent
child and two adult non-dependent children. Thomas E. Phelps
died without a will.
October 29, 2015, Erica Book drafted the initial estate
documents and signed to be the administrator of the wrongful
death action. On October 30, 2015, Attorneys John Haecker and
John Grimm filed the initial estate documents, which were
granted the same day.
October 30, 2015, an Emergency Motion was filed in the estate
by a majority of Thomas E. Phelps' heirs, requesting that
Thomas E. Phelps' mother, Julie Maloy, be appointed the
administrator of the estate and the administrator of the
wrongful death action. See (ECF 32, Ex. F (Ex. L)).
November 2, 2015, the Steuben County Circuit Court removed
Erica Book as personal representative on the basis that
divorce proceedings were pending on the date of Thomas E.
Phelps' death, and the court appointed Julie Maloy as
personal representative of the estate. See (ECF 32,
Ex. G) (citing Ind. Code § 29-1-7-4(e)).
August 26, 2016, Erica Book retained attorney Michael Yoder,
and Attorneys Haecker and Grimm withdrew their appearances on
August 31, 2016. On November 4, 2016, Attorney Yoder withdrew
his appearance as well.
November 28, 2016, Erica Book signed an Estate Settlement
Agreement regarding the distribution of estate assets.
See (ECF 32, Ex. A).
in January 2017, the law firm of Ernsberger & Helmer,
Attorneys at Law, P.C. (“Ernsberger law firm”)
represented Erica Book in a guardianship proceeding in the
Steuben County Circuit Court involving K.P., Book's minor
daughter with Thomas E. Phelps. See (ECF 31, Ex. 1)