Somerset House Management Association, Inc. v. Bishop's Tennis, Inc.
MEMORANDUM OPINION Signed by Judge Paula Xinis on 10/18/2017. (cags, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOMERSET HOUSE MANAGEMENT
Civil Action No. PX-16-3375
BISHOP’S TENNIS, INC., ET AL.,
BISHOP’S TENNIS, INC.,
THOMAS DOWNEY, LTD.,
The matter before the Court arises from the installation of tennis courts at the Somerset
Condominium Complex in Chevy Chase, Maryland. ECF No. 2 at ¶ 7. Plaintiff Somerset House
Management Association, Inc. (“Somerset House”) owns the courts. Id. Somerset House alleges
that the courts, which were installed by Defendant Bishop’s Tennis, Inc. (“BTI”), have multiple
“dead spots,” making them dangerous to use. Id. at ¶¶ 7, 9, 11, 12. Somerset House initiated
suit against BTI for breach of warranty, breach of contract, and negligence, and against NGI
Sports, the manufacturer of the materials that BTI used to construct the courts, for strict product
BTI, in turn, has filed a third-party complaint against Thomas Downey, Ltd. (“TDL”),
which BTI alleges had been hired by Somerset House as a professional engineer to identify any
issues of concern with the area in which resurfacing of the courts was to occur. ECF No. 42. at ¶
3. BTI, in its thinly drafted third-party complaint, alleges that any damages suffered by Somerset
House “were as a result of the sole and/or contributory negligence of [TDL], without any
negligence on the part of BTI.” Id. ¶ 2.
Now pending before the Court is TDL’s Motion to Dismiss Third-Party Complaint under
Federal Rule of Civil Procedure 12(b)(6), filed on March 15, 2017. ECF No. 47. BTI opposed
the motion on March 30, 2017. ECF No. 49. TDL replied on April 11, 2017. ECF No. 50.
Having considered the parties’ arguments, the Court now DISMISSES BTI’s Third Party
Complaint Against Thomas Downey, Ltd.
Standard of Review
When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), a court must determine whether the complaint contains facts sufficient to state a claim
to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Factual allegations in the complaint are taken as true, but a court need not accept a plaintiff’s
legal conclusions, even when they are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A plaintiff must plead facts to support each element of the claim to satisfy the
standard. See McCleary-Evans v. Maryland Dept. of Transp., State Highway Admin., 780 F.3d
582, 585 (4th Cir. 2015).
Federal Rule of Civil Procedure 14 governs third-party practice. In relevant part, the
Rule provides: “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.” Fed. R. Civ. P.
14(a)(1). “When considering the substance of a third-party complaint, it is not sufficient that the
third-party claim is a related claim; the claim must be derivatively based on the original
plaintiff’s claim.” Laborers’ Dist. Council Pension & Disability Tr. Fund No. 2 v. Geofreeze,
Inc., 298 F.R.D. 300, 301 (D. Md. 2014) (internal marks and citation omitted); see also
L’Occitane, Inc. v. Tran Source Logistics, Inc., No. WMN-09-2499, 2010 WL 761201, at *4 (D.
Md. Mar. 2, 2010) (not enough for the third-party claim to arise out of same general set of facts
as the main claim; rather, it must be derivate); Kohl’s Dep’t Stores, Inc. v. Target Stores, Inc.,
214 F.R.D. 406, 413 (E.D. Va. 2003) (“A third-party claim under Rule 14 can be maintained
only if the liability asserted is in some way derivative of the main claim.”).
“Under Rule 14(a), a third-party defendant may not be impleaded merely because he may
be liable to the plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 368 n.3 (1978)
(emphasis in original). That is to say, “a third-party claim is not appropriate where the defendant
and putative third party plaintiff says, in effect, ‘it was him, not me.’” Watergate Landmark
Condominium Unit Owner’s Assoc. v. Wiss, Janey, Elstner Assoc., Inc., 117 F.R.D. 576, 578
(E.D. Va. 1987); AIG Europe Limited v. General System, Inc., No. RBD-13-0216, 2014 WL
3671566, at *7 (D. Md. July 22, 2014) (quoting Watergate, 117 F.R.D. at 578). Instead, a thirdparty claim lies “only where a proposed third party plaintiff says, ‘If I am liable to plaintiff, then
my liability is only technical or secondary or partial, and the third party defendant is derivatively
liable and must reimburse me for all or part of anything I must pay plaintiff.’” L’Occitane, 2010
WL 761201 at *4 (quoting Watergate, 117 F.R.D. at 578) (internal alterations and marks
BTI’s third-party complaint is precisely a “him, not me” claim. BTI’s position is that
“any injuries” suffered by Somerset House were the result of the negligence of TDL, “without
any negligence on the part of BTI.” ECF No. 42 at ¶ 2. BTI further avers that TDL’s alleged
“failure to identify and warn against various . . . issues of concern in the outdoor complex” was
the cause of Somerset House’s injuries. Id. at ¶ 3. Even in BTI’s opposition to TDL’s motion to
dismiss, BTI maintains that “Plaintiff Somerset [House] claims that the tennis courts failed
because BTI did not discover that the subsurface was not conducive to the resurfacing project.
BTI, in turn, claims that it was Third-Party Defendant TDL that failed to discover that the
subsurface was not conducive to the tennis court resurfacing.” ECF No. 49-1 at 4. BTI later
continues: “BTI is not seeking to hold TDL liable to it for providing negligent engineering
services. Rather, BTI has alleged that TDL provided negligent engineering services to Plaintiff
Somerset [House], which resulted in the alleged ‘dead spots’ on the tennis court surface.” Id. at
6 (emphasis in original). Because the allegations center on TDL’s liability to Plaintiff Somerset
House, the third-party complaint cannot survive. See Kohl’s Dep’t Stores, 214 F.R.D. at 413
(putative third-party plaintiff who asserted that defective construction caused at least part and
perhaps all of the damage suffered by plaintiff was asserting a variant of “it’s him, not me”;
putative third-party defendant was liable to plaintiffs rather than to putative third-party
defendant); Watergate, 117 F.R.D. at 577–78.1
Of course, the Court’s ruling does not foreclose an attempt by BTI to use TDL’s alleged
negligence as a defense at trial. See Watergate, 117 F.R.D. at 579. Whether such evidence is
The Court further notes that BTI has failed to allege plausibly that TDL’s negligence caused the alleged
“dead spots” in Somerset House’s tennis courts. More particularly, the Third Party Complaint is devoid of any
allegations that BTI knew of, reviewed, or relied upon TDL’s report to Somerset House. Nor does BTI allege that it
did not have an independent duty to ascertain whether there were defects in the area to be resurfaced, or allege any
factual material to support a finding of derivate or secondary liability.
relevant and admissible will be left for another decision on another day. Nonetheless, because
BTI’s claims against TDL are not secondary or derivative of Somerset House’s claims against
BTI, BTI’s third-party complaint must be dismissed.
For the foregoing reasons, the Third Party Complaint filed by BTI is DISMISSED. A
separate order will follow.
United States District Judge
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