Pinnacle Fitness and Recreation Management, LLC v. The Jerry and Vickie Moyes Family Trust et al

Filing 58

ORDER 1) Granting (Docs. 47 , 48 ) Defendant's Motion for Leave to File a Third-Party Complaint; 2) Denying (Doc. 56 ) Plaintiff's Ex Parte Motion to File Supplemental Briefing. Defendant shall cause the third-party complaint to be filed on or before August 6, 2010. Signed by Judge Thomas J. Whelan on 8/3/2010. (cap)

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-BGS Pinnacle Fitness and Recreation Management, LLC v. The Jerry and Vic...oyes Family Trust et al Doc. 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 THE JERRY AND VICKIE MOYES FAMILY TRUST, Defendant. PINNACLE FITNESS AND RECREATION MANAGEMENT, LLC, vs. Plaintiff, CASE NO. 08-CV-1368 W POR ORDER: 1) GRANTING DEFENDANT'S MOTION FOR LEAVE TO FILE A THIRD-PARTY COMPLAINT (DOC. NOS. 47, 48.) 2) DENYING PLAINTIFF'S EX PARTE MOTION TO FILE SUPPLEMENTAL BRIEFING (DOC. NO. 56.) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA On June 7, 2010, this Court granted a joint motion to extend the deadline for 22 amending pleadings and/or filing counter-claims until June 14, 2010. (Doc. No. 41.) 23 On June 14, 2010, Defendant The Jerry and Vickie Moyes Family Trust ("Moyes 24 Trust") filed an amended Answer and a third-party complaint against Marsha Forsythe25 Fournier. Because Moyes Trust had not requested leave of the Court to file a third26 party complaint, pursuant to Rule 14(a)(1), the parties agreed to have the document 27 stricken. (See Doc.Nos. 46, 49.) 28 -108cv1368 Dockets.Justia.com 1 On July 2, 2010, Moyes Trust filed a motion for leave to file its third-party 2 complaint. Plaintiff Pinnacle Fitness and Recreation Management, LLC ("Pinnacle") 3 has opposed the motion on the grounds that: (1) the motion does not meet the 4 requirements of Federal Rule of Civil Procedure 14(a), (2) the proposed third-party 5 complaint does not state viable claims against Ms. Fournier, and (3) because the filing 6 was untimely.1 The Court disagrees and will allow the filing. 7 Rule 14(a)(1) states that "a defending party may, as third-party plaintiff, serve 8 summons and complaint on a non party who is or may be liable to it for all or part of the 9 claim against it." Here, Moyes Trust has alleged multiple causes of actions which 10 implicate that Ms. Fournier may be partially liable for the claims in Pinnacle's 11 complaint. The substantive basis for the third-party complaint is that Ms. Fournier 12 tortiously interfered with the contractual relationship between Pinnacle and the Moyes 13 Trust. (Doc. No. 48, Ex. A.) Ms. Fournier's alleged actions could possibly impose some 14 liability upon her for the breach of contract claim--and potentially a few of the other 15 nine claims--that Pinnacle has asserted against the Moyes Trust. Therefore, without 16 addressing the merits or ultimate viability of the third-party complaint, the Court finds 17 that Defendant's motion meets the derivative liability requirements set out in Rule 14. 18 In regards to timeliness, the Court will exercise its broad discretion to allow the 19 filing. See Standard Wire & Cable Co. v. AmeriTrust Corp., 697 F.Supp. 368, 376 (C.D. 20 Cal. 1988.)(where the district court granted a motion to file a third-party complaint 21 because the alleged wrongdoing of the putative third-party defendant arose from the 22 same matters set forth in the complaint and because allowing the filing would help avoid 23 24 This motion was scheduled to be taken under submission on Monday morning, 25 August 2, 2010. On Friday afternoon, July 29, 2010, Plaintiff filed an ex parte motion 26 seeking leave to file supplemental briefing in support of their opposition to Defendant's motion. Plaintiff did not, however, attach to its motion the required declaration to 27 indicate that a `meet and confer' had taken place between the parties. (See Whelan 28 Chambers Rules - Civil Procedure) Despite this deficiency, the Court has reviewed the merits of the request and does not believe the requested ex parte relief is warranted. As such, Plaintiff's ex parte motion is DENIED. (Doc. No. 56.) -208cv1368 1 1 unnecessary expense and multiplicity of litigation.) The case is still in its initial stages. 2 Responsive pleadings have been recently amended, motions to dismiss are still being 3 filed, and discovery has just gotten underway. Indeed, no depositions are currently 4 scheduled. (Doc. No. 53 at 7.) 5 In sum, this case has not proceeded past the point where the judicial economy 6 benefits of allowing the Moyes Trust to file its third-party complaint are outweighed by 7 an undue delay or undue prejudice to the opposing party. 8 As such, the Court GRANTS Defendant's motion for leave to file a third-party 9 complaint. (Doc. Nos. 47, 48.) Defendant shall cause the third-party complaint to be 10 filed on or before August 6, 2010. 11 12 13 14 DATED: August 3, 2010 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -308cv1368 IT IS SO ORDERED. Hon. Thomas J. Whelan United States District Judge

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