City of Murray, Kentucky v. Robertson, Incorporated Bridge & Grading Division et al

Filing 71

MEMORANDUM OPINION & ORDER signed by Magistrate Judge H. Brent Brennenstuhl on 4/2/2018 denying 62 Motion for Leave to File Third Party Complaint. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:17-CV-00008-TBR

CITY OF MURRAY, KENTUCKY

PLAINTIFF

VS.

ROBERTSON INCORPORATED BRIDGE
AND GRADING DIVISION; AND
FEDERAL INSURANCE COMPANY
DEFENDANTS/THIRD-PARY PLAINTIFFS

VS.

DALE BEARDEN CONSTRUCTION
COMPANY, INC.

THIRD-PARTY DEFENDANT

MEMORANDUM OPINION
AND ORDER
BACKGROUND
Defendants/Third-Party Plaintiffs, Robertson Incorporated Bridge & Grading Division
and Federal Insurance Company ("Defendants"), have moved the Court for leave to file a third
party complaint against Bacon Farmer Workman Engineering & Testing, Inc., pursuant to Fed.
R. Civ. P. 14(a) (DN 62). Plaintiff, the City of Murray, Kentucky, has filed an objection (DN
66), and the time for filing a reply has expired. For the reasons set forth below, the motion is
denied.
NATURE OF THE MOTION
By way of background, the Plaintiff filed this case in January of 2017.

Plaintiff

contracted with Robertson for improvements to certain real property and the construction of a

pump station and force main facility in Calloway County, Kentucky (DN 1 at ¶ 7). According to
the Plaintiff, Robertson constructed a concrete wet well that was not in keeping with the project's
agreed plans and specifications (Id. at ¶ 11). Now, in its third party complaint, Defendants argue
that Bacon Farmer was the company tasked with inspecting Robertson's steel and concrete work,
that Bacon Farmer opined the work was acceptable, and as a result Bacon Farmer is liable to the
Defendants in the event Defendants are found liable to the city of Murray (DN 62-2 at PageID #
1115-17).
Notably, Defendants' motion (DN 62) contains no explanation or justification for why the
Court should allow them to name a third-party defendant more than four months after the time
expired to do so without showing cause (DN 13). Instead, it simply contains a complaint against
Bacon Farmer. In its objection, Plaintiff demonstrates that the dispute upon which Defendants
base their third-party complaint is not new, and in fact Defendants were aware of the issue as
much as two years ago (DN 66 at PageID # 1134).

Plaintiff has highlighted email

correspondence which were produced to the Plaintiff on September 8, 2017 that include an email
from Robertson's project manager, Bob Persons, to Robertson's local counsel, Doug Kennedy. In
this email, Persons states the need to include Bacon Farmer in the action because Bacon Farmer
performed the rebar inspection (Id.; DN 66-1 at PageID # 1143). The date of this email is March
30, 2016 (Id.).

Defendants have filed no reply countering Plaintiff's narrative or offering

additional information.
DISCUSSION
F. R. Civ. P. 14(a)(1) provides that "[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." "The decision of
whether to grant a motion for leave to implead is a matter committed to the discretion of the
district court, and the exercise of discretion is essentially a process of balancing the prejudices."
Asher v. Unarco Material Handling, Inc., No. 6:06–548–DCR, 2007 WL 3046064, at *4 (E.D.
Ky. Oct. 16, 2007). "Competing interests include the avoiding of duplicative litigation versus
ensuring that parties already before the court receive expeditious adjudication." Id. (cleaned up).
The Sixth Circuit has stated that the promptness of a motion for leave to implead a third-party is
"an urgent factor" guiding a court's exercise of discretion. Gen. Elec. Co. v. Irvin, 274 F.2d 175,
178 (6th Cir.1960). Other factors include: (i) the motion's timeliness; (ii) the likelihood of trial
delay; (iii) potential for complication of issues; and (iv) prejudice to the original plaintiff. Botkin
v. Tokio Marine & Nichido Fire Ins. Co ., Ltd., 956 F.Supp.2d 795, 802 (E.D.Ky.2013)
Where, as here, the motion for leave to add a third party is filed after time has expired in
the scheduling order for amending pleadings, a court should also be mindful of Rule 16(b)(4)'s
good cause standard, as the motion effectively seeks leave both to add a third-party defendant
and to amend the defendant's pleadings. Woodcock v. Ky. Dept. of Corr., No. 5:12-CV-00135GNS-LKK, 2016 WL 3676768, at *1 (W.D. Ky., July 6, 2016) (citation omitted). “The primary
measure of Rule 16’s ‘good cause’ standard is the moving party's diligence in attempting to meet
the case management order's requirements.” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th
Cir. 2002) (citations omitted). “Another relevant consideration is possible prejudice to the party
opposing the modification.” Id.
In this case, Defendants have not even attempted to demonstrate good cause. Their
motion to add a third-party is merely a statement that they are seeking leave under Rule 14.
When the Plaintiff objected, Defendants maintained their silence. However, the undersigned