Federal Deposit Insurance Corporation v. Varrasso et al

Filing 68

MEMORANDUM and ORDER signed by Judge William B. Shubb on 10/18/2012 GRANTING defendants' 61 Motion for Leave to file Third-Party Complaint. (Marciel, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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FEDERAL DEPOSIT INSURANCE
CORPORATION as Receiver for
INDYMAC BANK, F.S.B.,

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NO. CIV. 2:11-2628 WBS CKD
MEMORANDUM AND ORDER RE:
MOTION FOR LEAVE TO FILE A
THIRD-PARTY COMPLAINT

Plaintiff,
v.

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RICHARD K. VARRASSO doing
business as Richard Varrasso
and Associates and
AppraisalTrust.com, an
individual; PREMIER VALLEY,
INC. doing business as CENTURY
21 M&M ASSOCIATES, a
California corporation; and
KAREN BHATTI, an individual,

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Defendants.

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/
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----oo0oo---Plaintiff Federal Deposit Insurance Corporation

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(“FDIC”) as Receiver for Indymac Bank, F.S.B. (“Indymac”) brought

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this action against defendants Richard K. Varrasso, doing

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business as Richard Varrasso and Associates and

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AppraisalTrust.com, Premier Valley, Inc. (“Premier Valley”),
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doing business as Century 21 M&M Associates, and Karen Bhatti,

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arising out of defendants’ allegedly wrongful misrepresentations

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regarding the purchase of two residential properties.

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before the court is defendants’ Bhatti and Premier Valley’s

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motion for leave to file a third-party complaint pursuant to

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Federal Rule of Civil Procedure 14(a).

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I.

(Docket No. 61.)

Factual and Procedural Background

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Presently

Plaintiff FDIC is a government entity appointed by the
Office of Thrift Supervision to act as Receiver for IndyMac

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pursuant to 12 U.S.C. § 1821(d)(2)(B).

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legal claims have accordingly been retained by or transferred to

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the FDIC.

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(Compl. ¶ 1.)

IndyMac’s

(Id.)
In its Complaint, plaintiff alleges that defendants

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Bhatti and Premier Valley negligently provided an incorrect

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purchase price of $499,000 for the property located at 2009 Saint

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Theresa Way in Modesto, California (“Property”).

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40.)

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funded and subsequently sold to Indymac two mortgages totaling

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$499,000 for the Property (a first mortgage of $399,200 and a

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second mortgage of $99,800).

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of its claims against defendants Bhatti and Premier Valley: a

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state law claim of negligence and a state law claim of negligent

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misrepresentation.

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several causes of action against defendant Varrasso, who

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appraised the Property and an additional property, for negligent

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misrepresentation and breach of contract.

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(Id. ¶¶ 36,

Plaintiff alleges that Kay-Co Investments, Inc., then

(Id. ¶ 11.)

(Id. ¶¶ 33-44.)

Plaintiff brings two

Plaintiff also asserts

(Id. ¶¶ 17-32, 45-61.)

On February 1, 2012, the court issued a scheduling
order, (Docket No. 39), in which it set that day as the deadline
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to request leave to file amended pleadings or to add parties.

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February 28, 2012, defendants Bhatti and Premier Valley filed an

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answer to plaintiff’s complaint.

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17, 2012, they filed the instant motion for leave to file a

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third-party complaint against Sophie Reisiyannejad aka Sophie

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Nejad; Western Investment Network, Inc., doing business as Era

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the Property Professionals; Anwar Frontan aka Ray Forotan aka

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Anwar Forotan, individually and doing business as Alpine

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Mortgage, a business entity form unknown; One Stop Real Estate,

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Inc., a California corporation; Equal Partners Lending, Inc., a

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California corporation; Emmanuel Kim; Kay-Co Investments, Inc.,

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doing business as Pro30 Funding; Marissa Weisbly; and Sylvia

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Marie.

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a notice of non-opposition.

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failed to file an opposition.1

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II.

On September

On September 24, 2012, plaintiff filed
(Docket No. 62.)

Defendant Varrasso

Discussion

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(Docket No. 61.)

(Docket No. 42.)

On

Federal Rule of Civil Procedure 14(a) provides in
pertinent part:

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A defending party may, as third-party plaintiff, serve a

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summons and complaint on a nonparty who is or may be liable

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to it for all or part of the claim against it. But the

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third-party plaintiff must, by motion, obtain the court's

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leave if it files the third-party complaint more than 10

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days after serving its original answer.

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Fed. R. Civ. Pro. 14(a).

The decision whether to implead a

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Because oral argument will not be of material
assistance, the court orders this matter submitted on the briefs.
E.D. Cal. L.R. 230(g).
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third-party defendant is addressed to the sound discretion of the

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trial court.

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777 (9th Cir. 1986).

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Sw. Adm’rs, Inc. v. Rozay’s Transfer, 791 F.2d 769,

The purpose of Rule 14 is to promote judicial

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efficiency by eliminating the need for the defendant to bring a

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separate action against a third individual who may be secondarily

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or derivatively liable to the defendant for all or part of the

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plaintiff’s original claim.• Sw. Adm’rs, 791 F.2d at 777 (citing

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6 C. Wright & A. Miller, Federal Practice and Procedure § 1442,

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at 202-03 (1971)).

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favor of allowing impleader.

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L.L.C., 166 F.3d 389, 393 (1st Cir. 1999).

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whether to permit impleader, the court considers prejudice to the

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original plaintiff, complication of issues at trial, likelihood

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of trial delay, and timeliness of the motion to implead.

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v. Mascott, 94 F. Supp. 2d 1052, 1056 (N.D. Cal. 2000).

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For this reason, it is construed liberally in
Lehman v. Revolution Portfolio
In determining

Irwin

Bhatti and Premier Valley argue that the negligence

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alleged against them is not the cause of plaintiff’s alleged

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damages.

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the proposed third-party defendants are instead the causes in

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fact of plaintiff’s alleged damages because the purchaser of the

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Property, Marissa Weisbly, admits that the purchase was part of a

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scam, that her loan applications contained fraudulent

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misrepresentations, and that she never had any intention of

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making payments on the loan for the Property.

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Mot. for Leave (“Mem.”) (Docket No. 61) at 2:3-17.)

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defendants Bhatti and Premier Valley argue that the proposed

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third-party defendants are liable to them for indemnity for any

They argue that the intentional and fraudulent acts of

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(Mem. in Supp. of
Therefore,

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judgment and attorney fees incurred in defending this action.

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(Mem. at 5:12-15.)

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Bhatti and Premier Valley argue that plaintiff will not

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be prejudiced by the third-party complaint because they

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immediately notified plaintiff’s counsel of the alleged

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wrongdoing of the proposed third-party defendants as soon as they

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became aware of it and requested that plaintiff dismiss the

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action against them.

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should therefore be of no surprise.

(Id. at 5:17-23.)

The instant request

(Id.)

Furthermore, Bhatti

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and Premier Valley argue that impleading the third-party

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defendants will aid development of the issues and evidence at

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trial because even if the court does not grant this motion, they

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will be subject to subpoena and will be witnesses trial.

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5:17-23.)

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evidenced presented once, rather than presenting the same

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evidence later in a separate action for indemnity.

(Id. at

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Trial efficiency will be served by having the

(Id.)

Finally, Bhatti and Premier Valley explain that they

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did not unduly delay in bringing this motion because they did not

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possess the information needed to bring their claims until after

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the deposition of Marissa Weisbly in June 2012.

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They note that after the deposition their counsel immediately

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wrote to plaintiff’s counsel requesting that plaintiff dismiss

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the claims against them or stipulate to allow a third-party

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complaint.

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(Id. at 6:8-12.)

In light of the foregoing circumstances, including the

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fact that plaintiff does not oppose Bhatti and Premier Valley’s

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motion and defendant Varrasso failed to file any opposition, the

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court concludes that granting the instant motion is appropriate.
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Bhatti and Premier Valley’s motion is timely, and granting the

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motion will not cause undue prejudice to any of the existing

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parties.

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motion will not complicate issues at trial, but rather will

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promote judicial efficiency, as it will eliminate the need for

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Bhatti and Premier Valley to bring a separate action against the

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proposed third-party defendants, which they allege may be liable

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for any judgment against them.

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The court also concludes that granting the instant

IT IS THEREFORE ORDERED that defendants’ motion for

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leave to file a third party complaint be, and the same hereby is,

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GRANTED.

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DATED:

October 18, 2012

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