Kohler v. Pacific Solana Beach Holdings, LP et al

Filing 44

ORDER Granting (Doc. 37 ) Defendant Big 5 Corp.'s Motion for Leave to File a Third-Party Complaint. Big 5 Corp.'s motion for leave to file a third-party complaint is Granted. The third-party complaint is due on 12/22/2010. Signed by Judge M. James Lorenz on 12/14/2010. (srm)

-JMA Kohler v. Pacific Solana Beach Holdings, LP et al

Doc. 44

1 2 3 4 5 6 7 8 9 10 CHRIS KOHLER, 11 12 v. 13 PACIFIC SOLANA BEACH HOLDINGS, et al., 14 Defendants. 15 16 Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Civil No. 09CV2837-L(JMA) ORDER GRANTING DEFENDANT BIG 5 CORP.'S MOTION FOR LEAVE TO FILE A THIRD-PARTY COMPLAINT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

In this action for disability discrimination in access to and enjoyment of public facilities,

17 Defendant Big 5 Corp. dba Big 5 Sporting Goods #223 ("Big 5") filed a motion for leave to file 18 a third-party complaint against former Defendant and Big 5's landlord Pacific Solana Beach 19 Holdings, LP ("Pacific). Pacific opposed the motion and Big 5 replied. For the reasons which 20 follow, Big 5's motion is GRANTED. 21 This action was brought against four Defendants, Pacific, Big 5, The Vons Companies,

22 Inc. dba Vons #2327 ("Vons"), and Ross Dress for Less, Inc. dba Ross Dress for Less #263 23 ("Ross"). Big 5, Vons and Ross were served first and all of them answered the complaint. On 24 March 12, 2010 Plaintiff served Pacific and filed a notice of settlement of his claims against Big 25 5, Vons and Ross. On April 15, 2010 the claims against Vons and Ross were dismissed pursuant 26 to a joint motion to dismiss. Pacific settled Plaintiff's claims against it, and on April 28, 2010 27 those claims were dismissed pursuant to a joint motion. It appears that Plaintiff's settlement 28 with Big 5 fell through, because on May 18, 2010 Plaintiff withdrew his notice of settlement of
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1 claims against it. Big 5 is the only remaining Defendant in this case. It filed a motion pursuant 2 to Federal Rule of Civil Procedure 14(a) to file a third-party complaint against Pacific. 3 Rule 14(a) provides that "[a] defending party may, as third-party plaintiff, serve a

4 summons and complaint on a nonparty who is or may be liable to it for all or part of the claim 5 against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the 6 third-party complaint more than 14 days after serving its original answer." Because Big 5 did 7 not file its third-party complaint within 14 days after answering the complaint, leave of court is 8 required. 9 The purpose of Rule 14(a) is "to promote judicial efficiency by eliminating the necessity

10 for the defendant to bring a separate action against a third individual . . .." Sw. Adm'rs, Inc. v. 11 Rozay's Transfer, 791 F.2d 769, 777 (9th Cir. 1986). However, a "third-party claim may be 12 asserted only when the third party's liability is in some way dependent on the outcome of the 13 main claim and the third party's liability is secondary or derivative. . . . It is not sufficient that 14 the third-party claim is a related claim; the claim must be derivatively based on the original 15 plaintiff's claim." United States v. One 1977 Mercedes Benz, 708 F.2d 444, 452 (9th Cir. 1983). 16 Big 5 wants to file a complaint alleging that based its lease with Pacific, Pacific must

17 indemnify Big 5 if Plaintiff prevails. Big 5 intends to assert indemnity claims against Pacific 18 which are dependent on the outcome of Plaintiff's claim against Big 5 and wholly derivative of 19 its liability. Accordingly, Big 5's proposed third-party complaint meets the secondary or 20 derivative requirement. 21 Pacific argues that Big 5 should not be granted leave because the proposed third-party

22 complaint will add undue complexity to this case. "It is not an abuse of discretion to deny an 23 application for impleader where it will disadvantage the existing action." Rozay's Transfer, 791 24 F.2d at 777. Big 5's proposed complaint will introduce the necessity to interpret the lease 25 between Big 5 and Pacific to determine whether Big 5 is entitled to indemnity from Pacific 26 should Plaintiff prevail against Big 5, and if so, to what extent. This kind of complexity is 27 anticipated and subsumed in the standard governing Rule 14(a) impleaders. Leave may be 28 granted where liability is derivative and secondary. Accordingly, the determination whether the
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1 derivative or secondary liability claim against the third-party defendant has merit, by itself, 2 should not preclude leave to file a third-party complaint. 3 Next, Pacific contends that it would be unduly prejudiced if Big 5 is granted leave to file

4 a third-party complaint. Pacific argues that it would be required to litigate the underlying 5 liability to Plaintiff and re-expose itself to the risk of statutory attorney's fees after having settled 6 with Plaintiff. However, Big 5's complaint against Pacific does not present the underlying 7 liability issues as between Pacific and Plaintiff or Big 5 and Plaintiff. It presents Big 5's claims 8 against Pacific. The proposed third-party complaint is based entirely on Big 5's alleged right to 9 indemnity from Pacific. It is an alternative to Big 5's separate indemnity action against Pacific. 10 See Rozay's Transfer, 791 F.2d at 777. Pacific has failed to show how the prejudice it would 11 suffer from defending a separate action would be any less than the prejudice it would suffer from 12 having to defend a third-party complaint in this action. 13 Further, Pacific argues that Big 5 unduly delayed filing this motion because it answered

14 the complaint and did not file a cross-claim against Pacific or demand that it cure pursuant to the 15 lease the alleged access barriers, before Pacific settled its claims with Plaintiff. Big 5 counters 16 that it did not do so because it thought it was going to settle with Plaintiff as well, as indicated 17 on the notice of settlement. Even if the court were to accept Pacific's position that Big 5 was 18 remiss for not filing a cross-claim or making a demand on Pacific before Pacific's settlement, 19 Pacific has not shown that it has been prejudiced by the delay. 20 Last, Pacific argues that Big 5's proposed alleged indemnity claims lack merit because

21 they are not supported by the express terms of the lease. Assuming arguendo that Pacific is 22 correct, this does not by itself dispose of all the proposed claims. The proposed third-party 23 complaint is not based only on the express terms of the lease, but includes an implied indemnity 24 claim, which Pacific did not directly address. In addition, the merits arguments presented by 25 Pacific are more appropriate to a motion to dismiss or motion for summary judgment, where they 26 can be appropriately briefed. Accordingly, the court declines to consider Pacific's lease 27 interpretation arguments at this time. 28 / / / / /
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Based on the foregoing, Big 5's motion for leave to file a third-party complaint is

2 GRANTED. No later than December 22, 2010, Big 5 shall file the third-party complaint 3 attached to the Declaration of Judy Y. Chiang, if any. Pacific's response to the third-party 4 complaint, if any, shall be filed no later than 21 days after being served with the summons and 5 the third-party complaint. 6 7 8 DATED: December 14, 2010 9 10 11 COPY TO: M. James Lorenz United States District Court Judge IT IS SO ORDERED.

HON. JAN M. ADLER 12 UNITED STATES MAGISTRATE JUDGE 13 ALL PARTIES/COUNSEL 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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