Clark County v. Jacobs Engineering Group, Inc. et al

Filing 90

ORDER Granting 70 Motion for Leave to File Third-Party Complaint Against and to Serve Summons Upon Tate Snyder Kimsey Architects, Ltd.. Signed by Judge Larry R. Hicks on 9/21/11. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9
10
11
12
13
14
15
16

CLARK COUNTY, a political subdivision of )
the State of Nevada,
)
)
Plaintiff,
)
)
v.
)
)
JACOBS FACILITIES INC., a Foreign
)
Corporation; and/or CRSS
)
CONSTRUCTORS, INC., a Foreign
)
Corporation; ROE Corporations I-X,
)
)
Defendants.
)
)
)

2:10-CV-00194-LRH-PAL
ORDER

17

Before the court is Defendants Jacobs Facilities Inc. and CRSS Constructors, Inc.’s Motion

18

for Leave to File Third-Party Complaint Against and to Serve Summons Upon Tate Snyder Kimsey

19

Architects, Ltd. (#701). Plaintiff Clark County has filed an opposition (#72), and Defendants filed a

20

reply (#74).

21

I.

22

Facts and Procedural History
This action arises out of Defendants’ provision of services to Clark County as its Project

23

Management Consultant on two construction projects: the expansion of the Clark County Detention

24

Center and the construction of the Regional Justice Center. Clark County originally filed its

25
26

1

Refers to court’s docket entry number.

1

complaint in state court, and Defendants removed the action on the basis of diversity jurisdiction on

2

February 12, 2010. Doc. #1. Following removal, Clark County filed the operative Amended

3

Complaint on May 24, 2010. Doc. #30.

4

One year later, on May 27, 2011, Defendants filed the instant motion for leave to file a

5

third-party complaint against, and to serve a summons upon, Tate Snyder Kimsey Architects, Ltd.

6

(“TSKA”), the architect on the Regional Justice Center project. Doc. #70. Defendants’ Third-

7

Party Complaint contains a single cause of action for breach of contract based on TSKA’s alleged

8

breach of its duties to defend, indemnify and hold harmless the Defendants pursuant to a clause in

9

TSKA’s contract with Clark County. Doc. #70, Exh. A.

10
11

II.

Discussion
Federal Rule of Civil Procedure 14(a) permits a defending party, as third-party plaintiff, to

12

implead a third-party defendant “who is or may be liable to it for all or part of the claim against it.”

13

When impleader is sought more than 14 days after serving its answer to the original complaint,

14

however, “the third-party plaintiff must, by motion, obtain the court’s leave.” Id.

15

“The purpose of this rule is to promote judicial efficiency by eliminating the necessity for

16

the defendant to bring a separate action against a third individual who may be secondarily or

17

derivatively liable to the defendant for all or part of the plaintiff’s original claim.” Southwest

18

Administrators, Inc. v. Rozay’s Transfer, 791 F.2d 769, 777 (9th Cir. 1986). Impleader may be

19

denied, however, where it will disadvantage the existing action. Id. The decision on leave to file a

20

third-party complaint is within the district court’s sound discretion. Id.

21

Here, the court finds that granting Defendants leave to file a third-party complaint against

22

TSKA for derivative liability on Clark County’s claims original against Defendants is consistent

23

with the purposes of Rule 14(a). Contrary to Clark County’s assertion, the motion is not untimely

24

under either Rule 14(a) or the governing discovery schedule, which sets a February 2012 deadline

25
26

2

1

for adding parties. Nor does the court find that Defendants’ delay was unreasonable or that any

2

prejudice to Clark County outweighs the interests promoted by the rule.

3

Without reaching the merits of Clark County’s underlying contentions, the court declines to

4

deny leave on the basis that allowing the filing of Defendants’ third-party complaint would be

5

futile. The authorities cited for the proposition that leave may be denied based on futility govern

6

leave to file an amended complaint, not leave to file a third-party complaint. Rule 14(a) expressly

7

permits impleader where the proposed third-party defendant “may be liable” to the original

8

defendant, and Defendants’ third-party complaint asserts at least a colorable claim for relief. Any

9

Rule 12 defenses to Defendants’ third-party claim are properly raised by TSKA as third-party

10

defendant in its answer to the third-party complaint, not by Clark County as the original plaintiff in

11

opposition to a motion for leave to file. See Rule 14(a)(2).

12

IT IS THEREFORE ORDERED that Defendants’ Motion for Leave to File Third-Party

13

Complaint Against and to Serve Summons Upon Tate Snyder Kimsey Architects, Ltd. (#70) is

14

hereby GRANTED.

15

IT IS SO ORDERED.

16

DATED this 21st day of September, 2011.

17
18

__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

19
20
21
22
23
24
25
26

3