Mercier v. GMAC Mortgage LLC et al

Filing 33

RULING (see attached) granting defendant Federal Home Loan Mortgage Corporation's 31 Motion for Leave to File Third-Party Complaint against Coldwell Banker Calabro Associates ("Coldwell"). Pursuant to Rule 14(a)(1) of the Fed eral Rules of Civil Procedure, Federal Home Loan Mortgage Corporation may serve a summons and its third-party complaint upon Coldwell forthwith and efile said third-party complaint on or before May 29, 2012. Signed by Judge Charles S. Haight, Jr. on May 11, 2012. (Dorais, L.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
RITA MERCIER,
Plaintiff,
v.

3:11 - CV - 1379 (CSH)

GMAC MORTGAGE LLC, FEDERAL
HOME LOAN MORTGAGE
CORPORATION,
Defendants.

RULING ON MOTION FOR LEAVE TO FILE THIRD PARTY COMPLAINT
HAIGHT, Senior District Judge:

I.

BACKGROUND
Plaintiff Rita Mercier (“plaintiff”) brings the present negligence action against defendants

GMAC Mortgage LLC and Federal Home Loan Mortgage Corporation ( “Freddie Mac”) for injuries
she sustained on August 1, 2009, when she fell through the basement floor of a residence located at
110 Hobart Street, Meriden, Connecticut.1 Specifically, she alleges that defendants “owned and/or

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Plaintiff commenced this action in Connecticut Superior Court, Judicial District of New
Haven at Meriden. Doc. #1-1 (“Complaint,” dated July 28, 2011). Defendant Freddie Mac then
removed the action on September 1, 2011, to this Court on the grounds that “[s]ection 1452(f) of
Title 12 of the United States Code provides, in pertinent part, that any civil action in a state court
to which Freddie Mac is a party may at any time before trial be removed to the United States
District Court for the district embracing the place where the action is pending.” Doc. #1 (“Notice
of Removal”), ¶ 4. See 12 U.S.C. § 1452(f)(3) (“any civil or other action, case or controversy in
a court of a State, or in any court other than a district court of the United States, to which the
Corporation [i.e., Freddie Mac] is a party may at any time before the trial thereof be removed by
the Corporation . . . to the district court of the United States for the district and division
embracing the place where the same is pending”).
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possessed and/or controlled and/or maintained” the residence at 110 Hobart Street. Doc. #1-1
(“Complaint”), First Count ¶ 3, Second Count ¶ 3. Moreover, due to the alleged negligence of one
or both defendants, the basement floor was in a defective and dangerous condition, thereby causing
it to collapse when she walked upon it as an invitee on the premises. Id., First Count, ¶¶ 5-6,
Second Count, ¶¶ 5-6. Plaintiff maintains that, as a result of said negligence, she “suffered serious
injuries, losses, and damages,” including, inter alia, “contusions, abrasions and bruising” of her
“[l]eft leg and knee,” “[e]xacerbation of pre-existing back pain,” “[l]umbar spine strain and sprain,”
medical expenses for surgical, nursing and hospital treatment, loss of the ability to “carry on and
enjoy all of life’s activities,” and “los[t] time and wages from her employment,” all totaling in
excess of $15,000. Id., First Count, ¶¶ 7-10, Second Count, ¶¶ 7-10, & p. 10 (“Statement of
Demand).

II.

PENDING MOTION
Pending before the Court is defendant Freddie Mac’s motion for leave to serve a third-party

complaint on Coldwell Banker Calabro Associates (“Coldwell”) on the basis of an express
indemnity provision contained in a listing agreement between Freddie Mac, as prospective “Seller,”
and Coldwell, as “Broker” of the premises at 110 Hobart Street.

Doc. #31-1, p. 3 (¶ 4).

In

particular, Freddie Mac has represented that Section 1 of the listing agreement for the “subject
property” provides that “Broker agrees to indemnify Seller and hold Seller harmless from and against
any and all claims, demands, and causes of action made by any person or entity as a result of . . . the
acts or omissions of Broker . . . with respect to the listing, management, maintenance, marketing or

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sale of the property.”2 Id. Moreover, with respect to any “claim or demand [for which] Broker has
agreed to indemnify Seller or hold Seller harmless, then upon demand from Seller, Broker shall be
obligated to retain counsel at Broker’s expense to defend Seller from said claims or demands.” Id.

III.

DISCUSSION
The decision whether to permit a defendant to implead a third-party defendant rests in the

trial court’s discretion. Kenneth Leventhal & Co. v. Joyner Wholesale Co., 736 F.2d 29, 31 (2d Cir.
1984) (per curiam); Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 477 (D.C. Cir.1976), cert.
denied, 434 U.S. 1086 (1978). Pursuant to Rule 14(a)(1) of the Federal Rules of Civil Procedure,
“[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.”3
In general, “[a] third-party claim may be asserted under Rule 14(a)(1) only when the third
party’s liability is in some way dependent on the outcome of the main claim or when the third party
is secondarily liable to the defending party.” 6 Charles Alan Wright & Arthur R. Miller, & Mary
Kay Kane, Federal Practice and Procedure § 1446, at 377 (3d ed. 1971); see Siemens Westinghouse
Power Corp. v. Dick Corp, 299 F. Supp. 2d 242, 248 (S.D.N.Y. 2004) (“The crucial characteristic
of a Rule 14 claim is that defendant is attempting to transfer to the third-party defendant the liability

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Pursuant to Section 1 of the listing agreement, Coldwell, as “Broker,” also agrees to
indemnify “Seller” for the acts of omissions of its “agents, sales assistants, or employees” and/or
“any person or entity retained by Broker to provide labor or provide services at the Property.”
Doc. #31-1, p. 3(¶ 4).
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See also Bank of India v. Trendi Sportswear, Inc., 239 F.3d 428, 438 (2d Cir.2000) (in
general, to sustain an impleader action, third-party defendant “must be liable secondarily to the
original defendant” for all or part of the plaintiff's recovery of “liability asserted against the
defendant”)(internal quotations and citation omitted).
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asserted against him by the original plaintiff. In other words, the outcome of the third-party claim
must be contingent on the outcome of the main claim[.]”) (internal quotations and citations omitted).
Thus, “[t]he secondary or derivative liability notion is central,” such that impleader is often
successfully used “when the basis of the third-party claim is indemnity.” Federal Practice and
Procedure § 1446, supra; see, e.g., U. S. v. Farr & Co., 342 F.2d 383, 386-87 (2d Cir. 1965).
In the case at bar, defendant Freddie Mac has represented that contractually Coldwell was
responsible for the “listing, management, maintenance, marketing or sale” of the property located
at 110 Hobart Street. Doc. #31-1, p. 3 (¶ 4).

Moreover, Freddie Mac contends that, pursuant to

the express indemnification clause in Coldwell’s listing agreement for said property, “[i]f the
premises where the incident allegedly occurred was dangerous and defective due to defective
flooring in the basement . . . it was due to the negligence” of Coldwell. Id. Accordingly, defendant
Freddie Mac seeks to bring a third-party action against Coldwell for both contractual and common
law indemnification. Id., p. 1 - 4 (proposed “Third Party Complaint”). Because defendant Freddie
Mac seeks to implead Coldwell on the basis of an indemnification agreement, the Court finds
Freddie Mac’s request to file and serve a third-party complaint against Coldwell proper under Rule
14(a)(1).
Furthermore, at the preliminary stage of these proceedings (with discovery not scheduled to
expire till August 30, 2012), the Court notes that neither plaintiff nor Coldwell will suffer undue
delay or prejudice by the addition of Coldwell as a third-party defendant at this time.

IV.

CONCLUSION
For all of the foregoing reasons, the Court hereby grants defendant Freddie Mac’s “Motion

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to Bring In a Third Party Defendant.” (Doc. #31). Pursuant to Rule 14(a)(1) of the Federal Rules
of Civil Procedure, Freddie Mac may serve a summons and its third-party complaint upon Coldwell
forthwith and efile said third-party complaint on or before May 29, 2012.
It is SO ORDERED.
Dated: New Haven, Connecticut
May 11, 2012

/s/Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

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