Gonzalez v. Examination Management Services, Inc. et al

Filing 25

ORDER: (1) Granting 22 Motion to File Third Party Complaint; and (2) Vacating Hearing. Signed by Judge Janis L. Sammartino on 11/8/2017. (mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARIA T. GONZALEZ, on Behalf of
Herself and All Others Similarly Situated,

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ORDER: (1) GRANTING MOTION
TO FILE THIRD PARTY
COMPLAINT; AND (2) VACATING
HEARING

Plaintiff,

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Case No.: 17cv1077-JLS (JLB)

v.
EXAMINATION MANAGEMENT
SERVICES, INC., a Nevada Corporation;
LABORATORY CORPORATION OF
AMERICA HOLDINGS, a Delaware
Corporation; and DOES 1–10, inclusive,

(ECF No. 22)

Defendants.

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Presently before the Court is Defendant Examination Management Services, Inc.

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(“EMSI”)’s Motion for Leave to File Third Party Complaint, (ECF No. 22). EMSI seeks

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leave to add Soko United Corporation (“Soko”) as a defendant, stating Plaintiff incorrectly

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named EMSI as her employer when Soko is Plaintiff’s actual employer. (Id. at 3–4). EMSI

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seeks to implead Soko “for the purposes of assigning liability” to Soko if any liability is

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found with respect to Plaintiff’s allegations. (Id. at 3.)

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Also before the Court is Plaintiff Maria Gonzalez’s Response to Motion, (ECF No.
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17cv1077-JLS (JLB)

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23). In her Response, Plaintiff states she “does not oppose EMSI’s filing of the proposed

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Third-Party Complaint” but reserves her right to strike, sever, or try separately the third-

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party claim and assert claims against the third party, and clarifies her belief that EMSI is

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correctly named as a defendant because EMSI is her employer. (Id. at 5, 8–9.)

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ANALYSIS
Federal Rule of Civil Procedure 14(a) governs when a defendant may bring a third
party into a case. It provides, in pertinent part:
A defending party may, as third-party plaintiff, serve a summons and
complaint on a nonparty who is or may be liable to it for all or part of the
claim against it. But the third-party plaintiff must, by motion, obtain the
court’s leave if it files the third-party complaint more than 14 days after
serving its original answer.

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Fed. R. Civ. P. 14(a). Here, because Defendant’s original answer was filed on August 28,

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2017, leave of the Court is required.

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As to the purpose of Rule 14(a), Professors Wright and Miller explain:

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The claim against the third-party defendant must be based upon plaintiff’s
claim against defendant. The crucial characteristic of a Rule 14 claim is that
defendant is attempting to transfer to the third-party defendant the liability
asserted against him by the original plaintiff. The mere fact that the alleged
third-party claim arises from the same transaction or set of facts as the original
claim is not enough.

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6 Charles Alan Wright, et al., Federal Practice and Procedure § 1446 (3d ed. 2017). “The

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decision whether to implead a third party defendant is within the sound discretion of the

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district court.” Southwest Adm., Inc. v. Rozay’s Transfer, 791 F.2d 769, 777 (9th Cir.

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1986). “In deciding whether to permit a defendant to file a third party complaint, the court

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considers (1) prejudice to the original plaintiff; (2) complication of issues at trial; (3) the

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likelihood of trial delay; and (4) the timeliness of the motion.” Irwin v. Mascott, 94 F.

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Supp. 2d 1052, 1056 (N.D. Cal. 2000) (citing Somportex Ltd. v. Philadelphia Chewing

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Gum Corp., 453 F.2d 435, 439 n.6 (3d Cir. 1971)); see also Green Valley Corp. v. Caldo

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17cv1077-JLS (JLB)

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Oil Co., No. 09-cv-04028-LHK, 2011 WL 1465883, at *8 (N.D. Cal. Apr. 18, 2011)

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(same).

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First, EMSI’s claim against Soko is based on Plaintiff’s claim against EMSI. EMSI

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alleges if anyone is liable to Plaintiff, it is Soko, and is therefore attempting to transfer

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liability to Soko. Further, as to the three factors from Irwin, Plaintiff does not oppose the

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Motion and does not argue she would be prejudiced by the addition of Soko to the case.

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The Court agrees and finds no prejudice. Complication of issues and delay of the trial are

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not significant concerns because this case is still in its infancy and trial has not yet been

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set. Further, discovery has not yet begun in this case, and Magistrate Judge Burkhardt has

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already ordered that if Soko is added to the case, the Federal Rule of Civil Procedure 26(f)

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conference shall be completed within 14 days of Soko’s filing of its answer to the complaint

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or the district court’s ruling on any Rule 12 motion by Soko, whichever is sooner. (ECF

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No. 20, at 2.) Finally, the Court finds the present Motion timely, as it was filed with no

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undue delay, approximately one month after Defendant filed its answer.

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CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s Motion. Accordingly,
the Court VACATES the hearing set for November 16, 2017.
IT IS SO ORDERED.
Dated: November 8, 2017

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17cv1077-JLS (JLB)