CAMPBELL v. NEW JERSEY TRANSIT RAIL OPERATIONS INC.
OPINION. Signed by Magistrate Judge Michael A. Hammer on 11/18/2021. (bt, )
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 17-5250 (KM) (MAH)
NEW JERSEY TRANSIT RAIL
This matter comes before the Court by way of Defendant New Jersey Transit Rail
Operations Inc.’s motion for leave to file a third-party complaint against Preferred Power Wash,
Inc. Def.’s Mot. for Leave to File Third-Party Compl., Oct. 12, 2021, D.E. 54. Pursuant to Federal
Rule of Civil Procedure 78 and Local Civil Rule 78.1, the Court has reviewed the parties’
submissions and decided the motion without oral argument. For the reasons set forth below, the
Court will deny the motion.
Plaintiff initiated this matter by filing a Complaint against Defendant, her former employer,
on July 18, 2017. Compl., July 18, 2017, D.E. 1, at ¶ 8. Plaintiff alleges that on January 23, 2016
at approximately 12:50 a.m., she exited one of Defendant’s railroad cars and, due to an
accumulation of ice and snow on the floor of the car and the station platform, slipped and fell. Id.
at ¶¶ 10-11. According to the Complaint, Plaintiff sustained serious injuries and underwent
surgery to repair damage to her left knee as a result. Id. at ¶ 15. Plaintiff claims the accident was
caused by Defendant’s negligence and violations of the Federal Employers’ Liability Act, 45
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U.S.C. § 51 et seq.; Federal Safety Appliances Act, 49 U.S.C. §§ 20301 et seq.; and Federal
Locomotive Inspection Act, 49 U.S.C. §§ 20701 et seq. Id. at ¶¶ 12, 14-15.
Defendant filed its Answer on September 19, 2017. Answer, Sept. 19, 2017, D.E. 4. One
month later, on March 20, 2018, the Court entered a Pretrial Scheduling Order instructing the
parties to file “[a]ny motion to add new parties or amend pleadings, whether by amended or thirdparty complaint” by June 27, 2018. Pretrial Scheduling Order, Mar. 20, 2018, D.E. 11, at ¶ 12.
Three Amended Scheduling Orders were filed over the course of this matter. Am. Scheduling
Order, Sept. 2, 2020, D.E. 34; Am. Scheduling Order, Dec. 9, 2020, D.E. 40; Am. Scheduling
Order, Apr. 7, 2021, D.E. 44. The deadlines to complete factual and expert discovery were
extended, but the June 27, 2018 deadline to file motions to add new parties or amend was not. Am.
Scheduling Order, D.E. 44, at ¶¶ 1-4.
On August 3, 2018, thirty-seven days after the June 27, 2018 cut-off date, this matter and
others in which New Jersey Transit was named as a defendant were stayed pending the Third
Circuit’s determination of whether “based upon the decision in Karns [v. Shanahan, 879 F.3d 504,
519 (3d Cir. 2018)], claims against NJ Transit in federal court may be precluded as a result of
Eleventh Amendment immunity.” Order, Aug. 3, 2018, D.E. 16, at pp. 1-2; see also Order, March
18, 2019, D.E. 18 (continuing stay). The stay was lifted on July 12, 2019, and the parties thereafter
engaged in discovery. Order, July 12, 2019, D.E. 20; Def.’s Br. in Supp., D.E. 54-2, at p. 1, ¶ 5.
Over two years later, on September 23, 2021, Defendant notified the Court that discovery
had revealed snow removal for the train station where Plaintiff was reportedly injured was handled
by a third-party contractor: Preferred Power Wash (“PPW”). Def.’s Letter, Sept. 23, 2021, D.E.
48, at pp. 1-2. Defendant filed the instant motion for leave to file a third-party complaint against
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PPW nineteen days later. Def.’s Mot. for Leave, D.E. 54. Plaintiff opposes the motion. Pl.’s Br.
in Opp’n, Oct. 29, 2021, D.E. 56.
Federal Rule of Civil Procedure 14(a)(1) allows defendants to act as third-party plaintiffs
and “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.” However, “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.” Id.; see
also Spencer v. Cannon Equip. Co., Civ. No. 07-02437, 2009 WL 1883929, at *2 (D.N.J. June 29,
2009)). “A third-party plaintiff’s claim must present a theory upon which the third-party defendant
can be liable to the third-party plaintiff under some theory of secondary liability, i.e.,
indemnification, contribution, or some other theory of derivative liability recognized by relevant
substantive law.” Meehan v. Bath Auth., LLC, Civ. No. 18-17444, 2021 WL 130483, at *1 (Jan.
14, 2021) (quoting Ronson v. Talesnick, 33 F. Supp. 2d 347, 356 (D.N.J. 1999)). Under Local
Civil Rule 7.1(f)(1), a party seeking leave to file a third-party complaint must also “attach to the
motion a copy of the proposed pleading.” “[A] failure to do so is fatal to a request for leave [to
file a third-party complaint],” see Parker v. Howmedica Osteonics Corp., Civ. No. 07-02400, 2008
WL 141628, at *5 n.5 (D.N.J. Jan. 14, 2008), because a draft is necessary for the Court’s and the
parties’ consideration, Folkman v. Roster Fin. LLC, Civ. No. 05-02099, 2005 WL 2000169, at *8
n.7 (D.N.J. Aug. 16, 2005).
Defendant neglected to attach a draft of its proposed third-party complaint to its motion
papers. See Def.’s Br. in Supp., D.E. 54-2, at p. 4. Instead, Defendant filed a copy of its proposed
pleading on November 15, 2021, two weeks after Plaintiff filed her response in opposition and a
week after Defendant’s reply papers were due. See Def.’s Letter, Nov. 15, 2021, D.E. 57.
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Defendant’s motion therefore does not comply with Local Civil Rule 7.1(f)(1), as the Rule requires
that a copy of a proposed pleading be filed with the movant’s motion papers, not after briefing has
concluded. That deficiency alone is a basis for denial. Fletcher-Harlee Corp. v. Pote Concrete
Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007). Nevertheless, the Court is not persuaded that
leave to file a third-party complaint would be warranted even if Defendant had complied with this
The Court has the discretion to permit or deny joinder under Rule 14. Spencer, 2009 WL
1883929, at *2. In determining whether to grant leave to file a third-party complaint under Rule
14(a), courts generally consider: “(1) the timeliness of the motion; (2) the probability of trial delay;
(3) the potential for complication of issues at trial; and (4) prejudice to the original plaintiff.”
Meehan, 2021 WL 130483, at *1 (quoting Spencer, 2009 WL 1883929, at *2).
The Court first addresses the timeliness of Defendant’s request. Defendant belatedly filed
the instant motion on October 12, 2021, over three years after the Court’s June 27, 2018 deadline
to file “[a]ny motion to add new parties” and over two years after the stay of this matter was lifted.
See Pretrial Scheduling Order, D.E. 11, at ¶ 12; see also Def.’s Mot. for Leave, D.E. 54; Order,
D.E. 20. Defendant states the delay occurred because defense counsel only learned of the existence
of a contract between Defendant, PPW, and New Jersey Transit “[i]n or about September of 2020.”
Def.’s Br. in Supp., D.E. 54-2, at ¶ 7. Defendant acknowledges, however, that it produced a
document “identif[ying] the ‘Employee/Contractor’ responsible for snow removal at the station
[where Plaintiff was injured] as ‘Clemente Mendez’” as part of its discovery productions, and that
it notified Plaintiff that Mendez was not a New Jersey Transit employee in early August 2020. Id.
at ¶¶ 5-6. Moreover, in its September 2017 Answer, Defendant pleaded that “[t]he incident and
damages alleged are due to the negligence of third persons over whom this defendant exercised no
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control.” Answer, D.E. 4, at p. 2, ¶ 4. The Court reasonably infers from these admissions that
Defendant had in its possession the basic facts necessary to implead PPW as a third-party
defendant at the inception of this matter, well before the June 27, 2018 deadline.
Neither Defendant’s failure to carefully review its records nor its mistaken impression “that
PPW would be fulfilling their obligations pursuant to the contract” negate the tardiness of this
motion. Id. at ¶ 11. The Court also notes that it strains to understand the basis for Defendant’s
faith in PPW, given PPW’s apparent failure to communicate with Defendant after November of
2020. See id. at ¶¶ 9-11. In sum, this factor weighs in favor of denying the motion. Id. at *2.
The Court next examines the probability of trial delay. “[D]elay is expected with the
majority of Rule 14 motions.” Hitachi Cap. Am. Corp. v. Nussbaum Sales Corp., Civ. No. 0900731, 2010 WL 1379804, at *5 (D.N.J. Mar. 30, 2010). In analyzing this factor, courts consider
“whether fact discovery is still open and whether impleading the third-party defendants will require
complex, additional discovery.” BRG Harrison Lofts Urb. Renewal LLC v. Gen. Elec. Co., Civ.
No. 16-06577, 2020 WL 4932755, at *4 (D.N.J. Aug. 24, 2020). Fact discovery in this matter
closed on June 1, 2021. Scheduling Order, D.E. 44, at ¶ 1. Defendant nevertheless argues that
PPW’s impleading “will increase the probability of an earlier resolution” and that “very little, if
any, additional discovery will be necessary.” Def.’s Br. in Supp., D.E. 54-2, at p. 7. The Court
disagrees for two reasons. First, because Defendant cannot predict PPW’s litigation strategy; PPW
may join and be unwilling or unable to settle this matter. See Meehan, 2021 WL 130483, at *2.
Second, as a third-party defendant, PPW will be entitled to take discovery and will be required to
make certain disclosures, which will likely delay trial for several months. Fed. R. Civ. P.
26(a)(1)(A) and (D); see also Mechin v. Carquest Corp., Civ. No. 07-5824, 2010 WL 3259808, at
*5 (D.N.J. Aug. 17, 2010). This factor consequently weighs in favor of denying the motion.
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Beyond stating “the issues in this case are not very complicated,” Defendant does not
address whether PPW’s impleading will complicate issues at trial. Def.’s Br. in Supp., D.E. 54-2,
at pp. 4-5. Plaintiff argues trial will become more complicated because Defendant and PPW will
be subject to separate legal standards, in that the claims against Defendant rely upon the Federal
Employers’ Liability Act and the proposed claims against PPW will be based in New Jersey
common law. Pl.’s Br. in Opp’n, D.E. 56, at p. 14. The Court notes that “in most, if not all, cases
involving impleaded parties, the movant’s claims against the third-party defendant might delay
resolution of the matter and increase the complexity of the trial.” XL Specialty Ins. Co. v. PCS
Wireless Warehouse, Inc., Civ. No. 18-17210, 2020 WL 967855, at *4 (D.N.J. Feb. 28, 2020) (first
citing Hitachi, 2010 WL 1379804, at *5-6; and then citing Spencer, 2009 WL 1883929, at *4).
“However, basic contribution or indemnification claims are not found to complicate matters at
trial” because those third-party claims typically involve the same factual circumstances as the
underlying complaint. BRG Harrison Lofts, 2020 WL 4932755, at *5 (first citing LM Ins. Co. v.
All-Ply Roofing Co., Inc., Civ. No. 14-4723, 2017 WL 1136669, at *3 (Mar. 27, 2017); and then
citing Krassan v. Havana, Inc., Civ. No. 14-1405, 2014 WL 6609117, at *3 (D.N.J. Nov. 20,
Defendant’s proposed third-party claims are for breach of contract, contractual
indemnification, contribution, and unjust enrichment. Proposed Third-Party Compl., Nov. 15,
2021, D.E. 57-1, at pp. 2-4. Because these claims involve the same factual circumstances as
Plaintiff’s Complaint, see id., the Court finds this factor weighs in favor of granting Defendant’s
The final consideration in this analysis is the prejudice to the original plaintiff. Defendant
argues “[t]here will be absolutely no prejudice to the Plaintiff” and iterates its belief that “it is
highly unlikely that PPW would even need to redepose the Plaintiff or conduct any new or
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duplicative discovery.” Def.’s Br. in Supp., D.E. 54-2, at pp. 4-5. Defendant also contends that
any resulting delay can be mitigated by bifurcating Plaintiff’s personal injury claim from
Defendant’s contract claim against PPW. Id. at pp. 5, 8. The Court does not find either argument
persuasive. The Court rejects Defendant’s first argument for the reasons discussed in its analysis
of the “probability of trial delay factor.” Regarding Defendant’s second argument, the Court
acknowledges that it possesses the ability to “[f]or convenience, to avoid prejudice, or to expedite
and economize . . . order a separate trial of one or more separate issues, claims, . . . or third-party
claims.” Fed. R. Civ. P. 42(b). That does not mean, however, that bifurcation would be proper in
this case. “The party seeking bifurcation must demonstrate that [it] will suffer prejudice if separate
trials are not granted,” and Defendant has made no such showing. Raritan Baykeeper, Inc. v. NL
Indus., Inc., Civ. No. 09-04117, 2014 WL 4854581, at *3 (D.N.J. Sept. 30, 2014) (alteration in
original) (quoting Miller v. N.J. Transit Auth., 160 F.R.D. 37, 40 (D.N.J. 1995)). Consequently,
the Court is not convinced that bifurcation is warranted, or would negate any prejudice to Plaintiff
if Defendant were granted leave to file a third-party complaint. Accordingly, this factor weighs in
favor of denying the motion.
The Court holds that, overall, the relevant Rule 14 factors weigh against granting
Defendant leave to implead PPW. For that reason, and for Defendant’s failure to comply with
Local Civil Rule 7.1, the Court denies the motion.
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Defendant’s motion for leave to file a third-party complaint against PPW is DENIED. An
appropriate Order accompanies this Opinion.
/s Michael A. Hammer
Hon. Michael A. Hammer,
United States Magistrate Judge
Dated: November 18, 2021
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