Century Surety Company v. Byal

Filing 56

ORDER DENYING UNTIMELY MOTION FOR LEAVE TO FILE THIRD-PARTY COMPLAINT AND VACATING HEARING, Order by Hon. William Alsup denying 55 Motion for Leave to File.(whalc1, COURT STAFF) (Filed on 10/25/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 10-03917 WHA

CENTURY SURETY COMPANY,

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For the Northern District of California

United States District Court

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Plaintiff,
ORDER DENYING
UNTIMELY MOTION
FOR LEAVE TO FILE
THIRD-PARTY COMPLAINT
AND VACATING HEARING

v.
CLARENCE BYAL dba VIPER LOUNGE,

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Defendant.
/

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CLARENCE BYAL dba VIPER LOUNGE,
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Third-Party Plaintiff,
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v.
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JAMES OBERLE,
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Third-Party Defendant.
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AND RELATED COUNTERCLAIMS.
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This action was filed in September 2010. Third-party defendant James Oberle was

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brought into the action in March 2011 (Dkt. No. 26). He filed his answer to the third-party

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complaint against him in April 2011 (Dkt. No. 29). He now moves for leave to file a third-party

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complaint against Bass Underwriters, Inc., which is not currently a party to this action. The

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motion was filed on October 24, 2011, and noticed to be heard on December 1, 2011 — a date

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which falls two weeks after the summary judgment hearing and only four days before trial.

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FRCP 14(a)(1) allows a defending party to serve a complaint “on a nonparty who is or

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may be liable to it for all or part of the claim against it.” The rule also requires that the party

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“must, by motion, obtain the court’s leave if it files the third-party complaint more than 14 days

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after serving its original answer.” Here, Mr. Oberle seeks leave to file his proposed third-party

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complaint six months after he filed his original answer.

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The instant motion is untimely. Fact discovery closed in August 2011, three months

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ago. Trial is set to begin on December 5, a mere six weeks from now (Dkt. No. 16). Adding a

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new party at this late date would completely derail the case management schedule. As such, it

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will not be allowed. Where a motion for leave to file a third-party complaint is untimely, it may

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For the Northern District of California

United States District Court

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be denied. See Cal. Home Brands, Inc. v. Ferreira, 871 F.2d 830, 831 (9th Cir. 1989).
Mr. Oberle addresses the timeliness issue by stating that he “did not specifically know

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about” the relevant conduct until a deposition taken at the close of the discovery period (Br. 9).

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This fact does not ameliorate the disruptive nature of his request. Moreover, denying the

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motion would not leave Mr. Oberle without a remedy. He states that if he “is not permitted to

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implead Bass at this time,” he “can, and will, seek separate relief” (ibid.).

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In sum, this order finds Mr. Oberle’s motion for leave to file a third-party complaint

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against Bass Underwriters, Inc. to be untimely. As such, it is DENIED. The motion hearing

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noticed for December 1, 2011, is VACATED.

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IT IS SO ORDERED.

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Dated: October 25, 2011.

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

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