American Home Assurance Company et al v. Greater Omaha Packing Company Inc.
ORDER denying 100 motion for leave to file a third-party complaint. Ordered by Senior Judge Lyle E. Strom. (JDR)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
AMERICAN HOME ASSURANCE
COMPANY and CARGILL MEAT
GREATER OMAHA PACKING COMPANY,)
MEMORANDUM AND ORDER
This matter is before the Court on defendant Greater
Omaha Packing Company, Inc.’s (“GOPAC”) motion for leave to file
a third-party complaint (Filing No. 100).
The Court finds the
motion should be denied.
On October 6, 2007, plaintiff Cargill Meat Solutions
(“Cargill”) recalled a batch of ground beef after the presence of
E. coli was detected in the product.
Some consumers had already
suffered injuries from ingesting the contaminated ground beef and
brought their claims for damages to Cargill.
The company agreed
to settlements with at least some of these consumers.
then traced the contamination back to a batch of ground beef that
was made by combining meat product from four suppliers including
In the present case, Cargill claims that the presence of
E. coli in the beef supplied by GOPAC constitutes a breach of
contract and includes the settlement amounts in its claims for
Notably, plaintiffs filed suit against GOPAC solely on
contract theories and did not file suit against the other
In their complaint, plaintiffs aver that they can
trace the contamination to GOPAC specifically.
seeks to add the additional suppliers as third-party defendants
on the theory that they will be liable to GOPAC for contribution
or indemnification if GOPAC is found liable or is otherwise made
to pay damages based on plaintiffs’ settlement with the injured
II. Legal Standard
“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.
The criteria for granting a motion to amend under Rule 15 are
useful in assessing a motion to add a third-party defendant.
Payne v. Beef Products, Inc., 8:10CV33, 2010 WL 3909460 (D. Neb.
Sept. 30, 2010).
“The court should freely give leave when
justice so requires.”
Fed. R. Civ. P. 15(a)(2).
denial of leave to amend may be justified by undue delay, bad
faith on the part of the moving party, futility of the amendment
or unfair prejudice to the opposing party.”
Amrine v. Brooks,
522 F.3d 823, 833 (8th Cir. 2008) (quoting United States ex rel.
Joshi v. St. Luke’s Hosp., Inc., 441 F.3d 552,557 (8th Cir.
2006)) (internal quotations omitted) (discussing standard for
motion to amend under Rule 15).
To have a non-futile third-party complaint, defendants
must have a cognizable claim against the third-parties.
Defendants have failed to identify such a claim.
vaguely alleged that the other meat product suppliers may be
liable for contribution or indemnity, but GOPAC has not alleged
any facts that would support such a claim in this case.
Under Nebraska law contribution requires “common
liability among the party seeking contribution and the parties
from whom contribution is sought.”
Estate of Powell ex rel.
Powell v. Montange, 277 Neb. 846, 855-56, 765 N.W.2d 496, 504
Under principles of joint and several liability or
surety, a common liability for a tort judgment or debt might
produce a situation in which a party, “in pursuance of his mere
legal liability, pa[ys] or [is] compelled to pay the whole
amount, or [an] amount greater than its proportionate share.”
Exchange Elevator Co. v. Marshall, 147 Neb. 48, 59, 22 N.W.2d
403, 410 (1946) (quoting 2 JOHN NORTON POMEROY, A TREATISE ON EQUITY
JURISPRUDENCE § 411 (5th ed. 1941).
GOPAC has failed to identify any “legal liability”
stemming from Cargill’s breach of contract claim that would
compel the defendant to pay any amount attributable to the other
If Cargill fails to prove that GOPAC breached the
contract by supplying contaminated meat product, GOPAC will face
no liability for Cargill’s settlements to the injured consumers,
and GOPAC has not identified any applicable legal principle that
would compel it to pay for the breach of contract or negligence
of a different supplier.
If GOPAC is found to have breached the
contract, GOPAC will be responsible only for those damages
proximately caused by the breach.
Delgado v. Inryco, Inc., 230
Neb. 662, 666-67, 433 N.W.2d 179, 183 (Neb. 1988) (“In order for
a plaintiff to recover on a breach of express warranty, he must
show, among other things, that ‘the goods did not comply with the
warranty, that is, that they were defective, and that his injury
was caused by the defective nature of the goods.’” (quoting
Durrett v. Baxter Chrysler-Plymouth, Inc., 198 Neb. 392, 395-96,
253 N.W.2d 37, 39 (1977))).
Again, GOPAC has not identified any theory of causation
that would allow Cargill to collect damages that are attributable
to another supplier.
a single supplier.
Cargill has filed a contract claim against
It has chosen to confine its legal theories
to those found in the law of contracts.
Therefore, it is
incongruous to add third-party defendants that were not a party
to the contract and can face no liability for its breach.
IT IS ORDERED that defendant’s motion for leave to file
a third-party complaint against the other suppliers of meat
product is denied.
DATED this 11th day of April, 2013.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
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