United States for the Use and Benefit of Terran Corporation v. Tatitlek Construction Services, Inc. et al

Filing 40

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES FOR THE USE AND BENEFIT OF TERRAN CORPORATION, 12 Plaintiff, 13 TATILEK CONSTRUCTION SERVICES, INC., an Alaska corporation; and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Maryland corporation, 15 16 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. 14 Civil No. Defendant. 17 18 On February 18, 2014, Plaintiff Terran Corporation (“Terran”) filed a motion for 19 leave to file third party complaint against Tri-Tech Associates, Inc. (“Tri-Tech”). [Doc. 20 No. 30.] On February 28, 2014, Defendant Tatilek Construction Services, Inc. 21 (“Tatilek”) filed an opposition to the motion. [Doc. No. 36.] On March 7, 2014, Plaintiff 22 filed a reply to the opposition. [Doc. No. 38.] On March 10, 2014, the Court took the 23 motion under submission. [Doc. No. 39] For the reasons set forth below, the motion for 24 leave to file third party complaint is GRANTED. 25 26 Background Plaintiff Terran filed this action on February 12, 2013, alleging that Defendant 27 Tatilek failed to pay for work Terran performed on the construction of live fire training 28 facilities for the United States Navy at Camp Pendleton, California (the “Project”). [Doc. 1 13cv340 1 No. 1.] On April 11, 2013, Tatilek filed an answer and counter-claim. [Doc. No. 8.] On 2 June 28, 2013, a scheduling order was issued which set discovery cutoff for December 6, 3 2013, and the Pretrial Conference for September 19, 2014. [Doc. No. 16.] Later, at the 4 request of the parties, discovery cutoff was continued to February 28, 2014. [Doc. No. 5 24.] Terran now seeks leave to file a third party complaint against Tri-Tech with regard 6 to the engineering and design services that Tri-Tech provided to Terran on the Project. Discussion 7 8 Fed.R.Civ.P. 14(a) provides for service of a third-party impleader complaint upon 9 a person not a party to the action who is or may be liable to [the original defendant] for 10 all or part of the claim against it. Defendant need not obtain leave of the court to serve 11 and file a third-party complaint, if is it filed within 10 days after defendant serves its 12 original answer to the complaint in the main action. Fed. R. Civ. Proc. 14(a)(1). In all 13 other circumstances, leave of the court to serve and file a third party complaint must be 14 sought by motion. Fed. R. Civ. Proc. 14(a) (1). 15 The purpose of impleader is to promote judicial efficiency by eliminating the need 16 for the defendant to bring a separate action against the parties secondarily or derivatively 17 liable to the defendant on account of the plaintiff's claim. Southwest Admin., Inc. v. 18 Rozay's Transfer, 791 F.2d 769, 777 (9th Cir.1986). The decision whether to permit a 19 third party claim under Rule 14 is left to the sound discretion of the trial court. Id. But 20 since the rule is designed to reduce multiplicity of litigation, it is construed liberally in 21 favor of allowing impleader. Lehman v. Revolution Portfolio L.L.C., 166 F.3d 389, 394 22 (1st Cir. 1999). 23 Here, Plaintiff’s proposed third-party complaint against Tri-Tech meets the 24 standard set forth in FRCP 14(a) because Tri-Tech’s liability to Terran is dependent on 25 the outcome of Tatitlek’s counterclaim against Terran. If Terran is found liable on the 26 counterclaim based on Tri-Tech’s work on the Project, then Terran may be entitled to 27 indemnity from Tri-Tech. Moreover, Plaintiff has submitted sufficient evidence that it 28 acted diligently to bring this motion after it learned that it had a good faith basis to make 2 13cv340 1 a claim against Tri-Tech and then found new lead counsel following an unwaivable 2 conflict of interest. [Doc. No. 30-2 at ¶ ¶ 2-4.] Finally, any prejudice to Defendant is 3 minimal, as no trial date has been set in this case; and such prejudice is greatly 4 outweighed by the judicial efficiency of having all of the claims regarding the Project 5 adjudicated in the same forum. Accordingly, Plaintiff’s motion for leave to file a third 6 party complaint is GRANTED. Conclusion 7 8 For the reasons set forth above, the Court HEREBY ORDERS as follows: 9 1) Plaintiff’s motion for leave to file a third party complaint is GRANTED; 10 2) Plaintiff shall file the proposed third party complaint [Doc. No. 30-3] no later 11 than March17, 2014, and shall serve the complaint on the third party as expeditiously as 12 possible; 13 14 3) All pending pretrial dates set forth in the scheduling orders [Doc. Nos. 16, 37] are HEREBY VACATED; 15 4) Within three days of this order, the parties shall contact the chambers of 16 Magistrate Judge Karen Crawford to schedule a status/case management conference to 17 appropriately extend discovery and reset pre-trial dates once the third party has appeared 18 in the action. 19 IT IS SO ORDERED. 20 21 DATED: March 11, 2014 22 23 CATHY ANN BENCIVENGO United States District Judge 24 25 26 27 28 3 13cv340

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