The Mountain Club Owner's Association v. Graybar Electric Company, Inc.

Filing 48

STIPULATION and ORDER 47 for leave to file Third-Party Complaint signed by Senior Judge William B. Shubb on 2/2/2015. Defendant Graybar Electric Company, Inc. shall file its Proposed Third-Party Complaint against General Cable Corporation within 10 days from date of this Order. (Marciel, M)

1
2
3
4
5
6
7
8
9
10
11

Michael B. Brown (SB #179222)
STOEL RIVES LLP
500 Capitol Mall, Suite 1600
Sacramento, CA 95814
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Thomas P. Berra, Jr. (pro hac vice)
Edward T. Pivin (pro hac vice)
LEWIS RICE & FINGERSH, L.C.
600 Washington Ave., Suite 2500
St. Louis, MO 63101
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Defendant
GRAYBAR ELECTRIC COMPANY, INC.

12
UNITED STATES DISTRICT COURT

13

FOR THE EASTERN DISTRICT OF CALIFORNIA

14
15

THE MOUNTAIN CLUB OWNER’S
ASSOCIATION,

16
17
18
19

Case No.: 2:13-CV-01835-WBS-KJN
STIPULATION AND [PROPOSED]
ORDER GRANTING GRAYBAR
ELECTRIC COMPANY, INC. LEAVE TO
FILE THIRD-PARTY COMPLAINT
AGAINST GENERAL CABLE
CORPORATION

Plaintiff,
v.
GRAYBAR ELECTRIC COMPANY, INC.,
Defendant

20
21
22

COMES NOW, Plaintiff, The Mountain Club Owners Association (“Plaintiff”),

23

and Defendant, Graybar Electric Company, Inc. (“Defendant” or “Graybar”), by and

24

through their respective undersigned counsel, and stipulate as follows for an order granting

25

Graybar leave to file its [Proposed] Third-Party Complaint against General Cable

26

Corporation (“General Cable”).

27
28

STIPULATION AND [PROPOSED] ORDER
GRANTING GRAYBAR ELECTRIC COMPANY,
INC. LEAVE TO FILE THIRD-PARTY COMPLAINT
AGAINST GENERAL CABLE CORPORATION

-1-

2:13-cv-01835-WBS-KJN

1

WHEREAS, this is a products-liability, manufacturing-defect case in which Plaintiff

2

claims Graybar distributed an allegedly defective electric cable that, according to Plaintiff, caused

3

a fire on its property. (See Second Amend. Compl. (Doc. #: 40), at ¶¶ 8-11.)

4

WHEREAS, based on information recently learned through discovery, Graybar now seeks

5

leave to implead General Cable Corporation (“General Cable”), the manufacturer of the subject

6

cable, as a third-party defendant under the doctrine of equitable indemnity. (See Graybar’s

7

[Proposed] Third-Party Complaint against General Cable Corporation, attached hereto as

8

Exhibit A.)

9

WHEREAS, FEDERAL RULE OF CIVIL PROCEDURE 14(a)(1) provides that a defending party

10

may, as a third-party plaintiff, implead a nonparty “who is or may be liable to [the defending

11

party] for all or part of the plaintiff’s claim against it.”

12

WHEREAS, “the decision whether to implead a third-party defendant is addressed to the

13

sound discretion of the trial court” (Sw. Administrators, Inc. v. Rozay’s Transfer, 791 F.2d 769,

14

777 (9th Cir. 1986)) and, in exercising such discretion, courts consider four factors: “1) prejudice

15

to the original plaintiff; 2) complication of issues at trial; 3) likelihood of trial delay; and

16

4) timeliness of the motion to implead.” Paradise Nw. Inc. v. Randhawa, No. 2:09CV02027 MCE

17

DAD, 2010 WL 1487874, at *1 (E.D. Cal. Apr. 13, 2010).

18

WHEREAS, impleader of General Cable as a third-party defendant is proper under FED. R.

19

CIV. P. 14(a) because General Cable’s liability to Graybar under the doctrine of equitable

20

indemnity is derivative of Graybar’s alleged liability to Plaintiff. See American Motorcycle Assn.

21

v. Superior Court, 20 Cal. 3d 578, 582-84 (1978).

22

WHEREAS, in his November 24, 2014 Stipulation & Order, Magistrate Judge Newman,

23

based on the parties’ following stipulation, established February 27, 2015, as the deadline for

24

joining nonparties:

25

[I]t is agreed that, to allow the parties to continue their respective investigations

26

and conduct additional discovery to identify the manufacturer of the electric

27
28

STIPULATION AND [PROPOSED] ORDER
GRANTING GRAYBAR ELECTRIC COMPANY,
INC. LEAVE TO FILE THIRD-PARTY COMPLAINT
AGAINST GENERAL CABLE CORPORATION

-2-

2:13-cv-01835-WBS-KJN

1

cable, the deadline for joining parties and amending the pleadings be continued to

2

February 27, 2015

3
4
5
6
7

(See Doc. #: 44, at 4.)
WHEREAS, Graybar, by the instant Stipulation and [Proposed] Order, timely seeks leave
to implead General Cable before the February 27, 2015 deadline.
WHEREAS, Plaintiff does not object to the impleader of General Cable and the parties
have not yet exchanged expert reports or conducted depositions.

8

WHEREAS, because Graybar’s proposed claims against General Cable are based on

9

Plaintiff’s allegations against Graybar (compare Pl.’s Second Amend. Compl. (Doc. #: 40) at ¶¶ 8-

10

20, with Graybar’s [Proposed] Third-Party Compl. at ¶¶ 10-20), the impleader of General Cable

11

will not unduly complicate issues at trial or inject extraneous issues into the action.

12

NOW THEREFORE, Plaintiff and Graybar stipulate and respectfully request that the

13

Court enter an order granting Graybar leave to file the attached [Proposed] Third-Party Complaint

14

against General Cable Corporation.

15
16

Dated: January 30, 2015

STOEL RIVES LLP

17
By: /s/
Michael B. Brown
MICHAEL B. BROWN
Attorney for Defendant, GRAYBAR ELECTRIC
COMPANY, INC.

18
19
20
21
22
23
24

Dated: January 30, 2015

FORAN GLENNON PALANDECH PONZI &
RUDLOFF PC
By: /s/
Diana R. Lotfi (as approved via email on 01-30-15)
DIANA R. LOTFI
Attorney for Plaintiff, THE MOUNTAIN CLUB
OWNER’S ASSOCIATION

25
26
27
28

STIPULATION AND [PROPOSED] ORDER
GRANTING GRAYBAR ELECTRIC COMPANY,
INC. LEAVE TO FILE THIRD-PARTY COMPLAINT
AGAINST GENERAL CABLE CORPORATION

-3-

2:13-cv-01835-WBS-KJN

ORDER

1
2

IT IS SO ORDERED THAT, good cause having been show and on stipulation of the

3

parties, the Court hereby grants Defendant Graybar Electric Company, Inc. leave to file its

4

[Proposed] Third-Party Complaint against General Cable Corporation within ten (10) days from

5

the date of this Order.

6
7

Dated: February 2, 2015

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

STIPULATION AND [PROPOSED] ORDER
GRANTING GRAYBAR ELECTRIC COMPANY,
INC. LEAVE TO FILE THIRD-PARTY COMPLAINT
AGAINST GENERAL CABLE CORPORATION

-4-

2:13-cv-01835-WBS-KJN