Berry v. Norfolk Southern Railway Company

Filing 25

MEMORANDUM OPINION & ORDER: GRANTING dft's 22 MOTION for Leave to file Third Party Complaint; the clerk is directed to FILE the Third Party Complaint. Signed by Judge Joseph M. Hood on 4/23/13.(KJR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DONALD BERRY,

)
)
Plaintiff,
) Action No. 5:12-CV-304-JMH
)
v.
)
)
NORFOLK SOUTHERN RAILWAY CO. ) MEMORANDUM OPINION AND ORDER
)
Defendant.
)
)
)
**

**

**

**

**

This matter is before the Court on Defendant’s Motion
for

Leave

to

File

a

Third

Party

Complaint

[DE

22].

Plaintiff has responded [DE 23] and the Defendant timely
filed a reply [DE 24].

Thus, this matter is ripe for this

Court’s consideration.
Defendant seeks to add a claim for indemnity against
Usher Transport, Inc., the plaintiff’s employer pursuant to
Fed. R. Civ. P. 14.
agreement

by

In support, Defendant points to an

Usher

Defendant harmless.

that

it

would

indemnify

and

hold

In response, Plaintiff argues that the

addition is untimely under this Court’s scheduling order
and

that

Defendant

jurisdictional
corrected.

basis,

has
a

failed

to

deficiency

properly
that

has

allege
since

a

been

Whether to grant leave for a third party complaint is
within the discretion of the trial court.
Co.

v.

Irvin,

274

F.2d

175,

178

General Elec.

(6th

Cir.

1960)

The

timeliness of such a motion is “an urgent factor governing
the exercise of such discretion.”

Irvin, 274 F.2d at 178.

Although the motion for leave is outside of the deadline
set

by

the

Court,

Plaintiff

has

not

demonstrated

any

prejudice caused by this delay.

In fact, the parties have

not yet taken any depositions.

Thus, there can be little

prejudice, if any, to Plaintiff.
Moreover, the Court notes that the addition of this
Third-Party

Defendant

does

jurisdiction in this instance.
Operations,

355

F.3d

566,

not

destroy

this

Court’s

Grimes v. Mazda N. American
572

(6th

Cir.

2004);

see

Kemper/Prime Indus. Partners v. Montgomery Watson Americas,
Inc., 487 F.3d 1061, 1063 (7th Cir. 2007).
IT IS ORDERED that the Motion for Leave to File a
Third Party Complaint [DE 22] is GRANTED.

Accordingly, the

Clerk is directed to FILE the Third Party Complaint.
This the 23rd day of April, 2013.