Charles M. Brewer, Ltd. Restated Pension Plan, et al. v. CBIZ, Inc., et al.
ORDER re 173 Joint MOTION to Amend/Correct and 175 Notice (Other). The Notice at docket 175 is DECLARED NULL, and the motion at docket 173 is DENIED. See text of order for instructions to counsel. Signed by Judge John W Sedwick on 6/15/11. (JWS)
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
CHARLES M. BREWER, LTD. RESTATED
PENSION PLAN, et al.,
CBIZ, INC., et al.,
ORDER AND OPINION
Motions at dockets 173
The court has reviewed the motion at docket 173 titled, “Joint Motion Of Plaintiffs
and Defendants To Approve Settlement and To Enter Bar Order.” The parties are, of
course, familiar with the motion and the exhibits thereto. However, the court does not
believe the parties have given much thought to the proposition that their request for an
order barring non-parties from seeking relief by way of contribution or indemnity from
Defendants effectively asks the court to exercise jurisdiction over 15 persons and
entities (collectively called “Noticed Non-Parties” by the parties in their joint motion) who
are not parties to this litigation. The joint motion explains that the Noticed Non-Parties
are persons or entities against whom “Plaintiffs may assert claims,” or “who may claim
to have claims against Defendants.”1 In short, the Noticed Non-Parties are persons and
Doc. 173 at 8.
entities as to whom there is no present case or controversy.2 Even if there were subject
matter jurisdiction, it is impossible to ascertain which, if any, of the Noticed Non-Parties
would be subject to personal jurisdiction in Arizona. Moreover, “judicial action enforcing
[a judgment] against the person or property of [an] absent party [subverts] that due
process which the Fifth and Fourteenth Amendments requires.”3 In sum, courts have
almost “uniformly prohibited parties from seeking to preclude the rights of nonparties.”4
Even more disturbing than the parties’ failure to understand the jurisdictional
issues raised by the joint motion is their unilateral attempt to compel speedy action by
the Noticed Non-Parties which has not been authorized by the court. Had Defendant
filed a motion to join a Noticed Non-Party pursuant to Rule 14 of the Federal Rules of
Civil Procedure, the court, not the litigants, would have decided if such a person should
be joined as a third-party defendant. If the court had approved the joinder, that person
or entity would have had at least 21 days after being served with a summons and
complaint in which to respond to the third-party complaint.5
Incredibly, the parties here have sent a notice to the Noticed Non-Parties which
baldly and arrogantly advises that:
[I]f you object to the imposition of the permanent bar order, you must notify
the parties and the Court, in writing, of your objection, including the legal
basis, if any, for your objection. Any objection must be lodged with the
Court on or before June 24, 2011. Your failure to lodge a timely objection
shall be deemed as your non-objection to the Court’s approval of the
See U.S. Const. art. III, § 2.
Hansberry v. Lee, 311 U.S. 32, 41 (1940).
FDIC v. Geldermann, Inc., 975 F.2d 965, 698 n.4 (10th Cir. 1992).
Fed. R. Civ. P. 14(a)(2)(A); Fed. R. Civ. P. 12.
Settlement Agreement and its entry of a permanent order as sought by the
It is not difficult to imagine a recipient believing that the court has authorized this
“Notice,” which, of course, is not true.
While the court will ponder whether sanctions should be imposed on counsel for
creating circumstances which could easily be interpreted as misrepresenting the court’s
position by attempting to impose an obligation on the Noticed Non-Parties to respond to
the Court which the court has not itself imposed, remedial action must be taken
immediately to avoid forcing any of the Noticed Non-Parties to expend resources
responding to the Notice.
For the reasons set forth above: IT IS ORDERED, (1) the Notice at docket 175 is
hereby DECLARED null, (2) counsel for Plaintiffs and Defendants shall immediately
notify each Noticed Non-Party that he, she or it has no duty to respond to the Notice,
(3) counsel for Plaintiffs and Defendants shall provide a copy of this order to each such
Noticed Non-Party by the fastest means available (email, facsimile, hand delivery or
expedited document delivery service such as FedEx or DHL) and also by United States
Mail, and (4) the motion at docket 173 is DENIED.
DATED this 15th day of June 2011.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
Doc. 175 at 2.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?