United States for the Use and Benefit of Terran Corporation v. Tatitlek Construction Services, Inc. et al
Filing
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ORDER: (1) granting 30 Motion for Leave to File Third Party Complaint; (2) vacating pretrial dates; (3) order parties to contact Magistrate Judge. Proposed Third Party Complaint due 3/17/14. All pending pretrial dates set forth in scheduling orders 16 and 37 are vacated. Signed by Judge Cathy Ann Bencivengo on 3/11/14. (All non-registered users served via U.S. Mail Service)(cge)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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UNITED STATES FOR THE USE AND BENEFIT OF TERRAN CORPORATION,
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Plaintiff,
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TATILEK CONSTRUCTION SERVICES, INC.,
an Alaska corporation; and FIDELITY AND
DEPOSIT COMPANY OF MARYLAND, a
Maryland corporation,
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13cv340-CAB (KSC)
ORDER: (1) GRANTING MOTION FOR
LEAVE TO FILE THIRD PARTY
COMPLAINT [Doc. No. 30]; (2)
VACATING PRETRIAL DATES; (3)
ORDER PARTIES TO CONTACT
CHAMBERS OF MAGISTRATE JUDGE
v.
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Civil No.
Defendant.
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On February 18, 2014, Plaintiff Terran Corporation (“Terran”) filed a motion for
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leave to file third party complaint against Tri-Tech Associates, Inc. (“Tri-Tech”). [Doc.
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No. 30.] On February 28, 2014, Defendant Tatilek Construction Services, Inc.
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(“Tatilek”) filed an opposition to the motion. [Doc. No. 36.] On March 7, 2014, Plaintiff
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filed a reply to the opposition. [Doc. No. 38.] On March 10, 2014, the Court took the
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motion under submission. [Doc. No. 39] For the reasons set forth below, the motion for
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leave to file third party complaint is GRANTED.
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Background
Plaintiff Terran filed this action on February 12, 2013, alleging that Defendant
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Tatilek failed to pay for work Terran performed on the construction of live fire training
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facilities for the United States Navy at Camp Pendleton, California (the “Project”). [Doc.
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No. 1.] On April 11, 2013, Tatilek filed an answer and counter-claim. [Doc. No. 8.] On
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June 28, 2013, a scheduling order was issued which set discovery cutoff for December 6,
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2013, and the Pretrial Conference for September 19, 2014. [Doc. No. 16.] Later, at the
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request of the parties, discovery cutoff was continued to February 28, 2014. [Doc. No.
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24.] Terran now seeks leave to file a third party complaint against Tri-Tech with regard
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to the engineering and design services that Tri-Tech provided to Terran on the Project.
Discussion
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Fed.R.Civ.P. 14(a) provides for service of a third-party impleader complaint upon
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a person not a party to the action who is or may be liable to [the original defendant] for
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all or part of the claim against it. Defendant need not obtain leave of the court to serve
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and file a third-party complaint, if is it filed within 10 days after defendant serves its
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original answer to the complaint in the main action. Fed. R. Civ. Proc. 14(a)(1). In all
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other circumstances, leave of the court to serve and file a third party complaint must be
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sought by motion. Fed. R. Civ. Proc. 14(a) (1).
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The purpose of impleader is to promote judicial efficiency by eliminating the need
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for the defendant to bring a separate action against the parties secondarily or derivatively
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liable to the defendant on account of the plaintiff's claim. Southwest Admin., Inc. v.
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Rozay's Transfer, 791 F.2d 769, 777 (9th Cir.1986). The decision whether to permit a
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third party claim under Rule 14 is left to the sound discretion of the trial court. Id. But
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since the rule is designed to reduce multiplicity of litigation, it is construed liberally in
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favor of allowing impleader. Lehman v. Revolution Portfolio L.L.C., 166 F.3d 389, 394
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(1st Cir. 1999).
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Here, Plaintiff’s proposed third-party complaint against Tri-Tech meets the
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standard set forth in FRCP 14(a) because Tri-Tech’s liability to Terran is dependent on
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the outcome of Tatitlek’s counterclaim against Terran. If Terran is found liable on the
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counterclaim based on Tri-Tech’s work on the Project, then Terran may be entitled to
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indemnity from Tri-Tech. Moreover, Plaintiff has submitted sufficient evidence that it
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acted diligently to bring this motion after it learned that it had a good faith basis to make
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13cv340
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a claim against Tri-Tech and then found new lead counsel following an unwaivable
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conflict of interest. [Doc. No. 30-2 at ¶ ¶ 2-4.] Finally, any prejudice to Defendant is
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minimal, as no trial date has been set in this case; and such prejudice is greatly
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outweighed by the judicial efficiency of having all of the claims regarding the Project
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adjudicated in the same forum. Accordingly, Plaintiff’s motion for leave to file a third
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party complaint is GRANTED.
Conclusion
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For the reasons set forth above, the Court HEREBY ORDERS as follows:
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1) Plaintiff’s motion for leave to file a third party complaint is GRANTED;
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2) Plaintiff shall file the proposed third party complaint [Doc. No. 30-3] no later
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than March17, 2014, and shall serve the complaint on the third party as expeditiously as
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possible;
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3) All pending pretrial dates set forth in the scheduling orders [Doc. Nos. 16, 37]
are HEREBY VACATED;
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4) Within three days of this order, the parties shall contact the chambers of
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Magistrate Judge Karen Crawford to schedule a status/case management conference to
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appropriately extend discovery and reset pre-trial dates once the third party has appeared
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in the action.
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IT IS SO ORDERED.
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DATED: March 11, 2014
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CATHY ANN BENCIVENGO
United States District Judge
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