BANK et al v. CITY OF PHILADELPHIA et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 1/9/2014. 1/10/2014 ENTERED AND COPIES E-MAILED(kk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN B.R. BANK et al.,
CITY OF PHILADELPHIA et al.,
January 9, 2014
INTRODUCTION AND FACTUAL BACKGROUND
This case involves claims made against Defendants for violations of federal and state law.
The claims include allegations of unreasonable seizures in violation of 42 U.S.C.A. § 1983,
abuse of process, civil conspiracy, and conversion, and stem from the following facts. Plaintiffs,
John B. R. Bank, Samuel T. Ascolese, Jr., and Walter Mark McClanahan, owned vintage cars.
John Bank owned a 1939 Buick convertible. (Doc. No. 1atif16.) Samuel Ascolese owned a
1949 Cadillac convertible. (Id. at if 17.) Walter McClanahan owned a 194 7 Cadillac Fleetwood.
(Id. at if 18.) The cars needed restoration work. Plaintiffs took them to James H. Foster
("Foster"), who operated a business known as West Johnson Classics. 1
The official name of Foster's company is West Johnson Garage, Inc., which does business as
West Johnson Classics. Foster also owns another company, International Collectibles, Inc.
Foster, West Johnson Garage, Inc. d/b/a West Johnson Classics, and International Collectibles,
Inc., collectively referred to as "the Foster Defendants." The first time they were sued in this
case was when the owner of the garage, Alfred Jefferson, a named Defendant who was originally
sued by Plaintiffs, in turn sued the Foster Defendants, claiming they were responsible for any
loss incurred by Plaintiffs.
Foster repaired and restored classic cars at a garage located at 86 West Johnson Street,
Philadelphia, Pennsylvania, 19144. (Id. at if 13.) The garage was owned by Alfred Jefferson
("Jefferson"). On March 1, 2010, Foster signed a Non-Residential Lease for Real Estate ("Lease
Agreement") to rent the garage from Jefferson. (Doc. Nos. 56, Exhibit A; 70 at 2.) In addition to
using the garage for repairs, Foster used the space to store classic cars and expensive parts. The
Lease Agreement provided that Foster would pay Jefferson a monthly rental of $3,000. (Doc.
No. 70 at 2.)
The two men had a falling out, and on or about November 16, 2010, Jefferson brought an
action in Landlord-Tenant court against Foster for two months' back rent that had not been paid.
(Doc. No. 1 at if 19.) On December 17, 2010, the Philadelphia Municipal Court entered
judgment in favor of Jefferson and against Foster in the amount of $9,596 plus interest. (Doc.
No. 70 at 3.) On January 21, 2011, the court also issued a Writ of Possession in favor of
Jefferson. (Doc. No. 9, Exhibit A.)
According to Jefferson, Foster knew about the Writ of Possession and had a contractual
duty under the Lease Agreement to remove any goods and effects from the garage. (Doc. No. 70
at 3.) In response, the Foster Defendants contend that Foster was working with Jefferson to
remedy the delinquent payments and was in the process of clearing out the contents of the
garage, which housed Plaintiffs' cars in various stages ofrestoration. (Doc. No. 66 at 3.)
According to Jefferson, however, the Foster Defendants failed to take prompt and/or reasonable
action to remove the cars and parts from the garage and to return them to Plaintiffs. (Doc. No.
70 at 3.) The items remained in the garage for roughly four months after the Writ of Possession
On or about May 16, 2011, in the early morning hours, several Philadelphia police
officers arrived at the West Johnson Garage where, as noted, the cars and parts were stored.
(Doc. No. 1 at~ 24.) Using a line of tow trucks, and pursuant to Pennsylvania's abandoned
vehicle code, 2 the officers removed classic cars and parts from the commercial property. (Doc.
Nos. 1 at~ 42; 48
108.) Plaintiffs' cars and parts were removed without their knowledge.
After the police removed the cars and parts, they were turned over to Century Motors, Inc.
("Century Motors"). (Doc. No. 1 at~ 45.) According to the Foster Defendants, "Century Motors
holds itself out as a body shop, garage, and specialty parts dealer for antique, classic, and muscle
cars." (Doc. No. 66 at 4.) Century Motors asserts that it was authorized under law to accept and
store the cars and parts. (Doc. No. 48 at 5.) After the police identified the cars belonging to
Plaintiffs, Century Motors returned them to Plaintiffs. (Id. at
45. See also Doc. No. 1 at~~
58, 66-67.) The cars were returned damaged. Moreover, certain parts were never recovered by
Given these events, Plaintiffs filed an action against the City of Philadelphia and Police
Officer Sean Boyle ("Officer Boyle"), who seized the cars and parts, and against Jefferson and
Century Motors. 3 In their Complaint, Plaintiffs assert four claims: 1) Count I - Unreasonable
75 Pa. Cons. Stat. Ann.§ 7301 et seq. (West).
This case is closely related to another case before the Court, Foster et al. v. City of Philadelphia
et al., Civil Action No. 2:12-cv-05851-JHS. The Foster Defendants are plaintiffs in the related
case. Both cases were originally assigned to the Honorable Chief Judge Petrese B. Tucker.
Judge Tucker consolidated the cases for purposes of discovery (Doc. No. 60), and on October 31,
2013, the Chief Judge reassigned both cases to this Court (Doc. No. 61).
To date, Plaintiffs have not brought a claim against any of the Foster Defendants. In his
opposing brief, Jefferson contends that it is a conflict of interest for the same law firm to
represent Plaintiffs and the Foster Defendants. (Doc. No. 70 at 2, n.1.) This issue was discussed
at the hearing held on December 11, 2013. At this point, the Court is satisfied that counsel will
ensure that its representation complies with the Pennsylvania Rules of Professional Conduct.
Seizure of Property in Violation of 42 U.S.C.A. § 1983; 2) Count II-Abuse of Process; 3) Count
III - Conversion; and 4) Count IV - Civil Conspiracy. (Doc. No. 1 at ilil 82-126.) In turn, on
June 26, 2013, Century Motors filed a Third-Party Complaint4 against Steffa Metals, Inc.,
alleging that Steffa Metals participated in the removal, junking, salvaging, and/or disposal of
various cars and/or parts that were taken from the West Johnson Garage on May 16, 2011. (Doc.
No. 17 at if 19.)
Next, on August 13, 2013, Jefferson filed a Third-Party Complaint against the Foster
Defendants, seeking indemnification. 5 (Doc. No. 34.) Thereafter, Jefferson filed two Amended
Third-Party Complaints against the Foster Defendants, first on October 24, 2013 (Doc. No. 55)
and then on October 29, 2013 (Doc. No. 56). On November 22, 2013, the Foster Defendants
filed a Motion to Dismiss Jefferson's Third-Party Complaint (Doc. No. 66), which is now before
the Court for a decision.
The Foster Defendants have also moved to dismiss Century Motors' Second Amended
crossclaim. 6 (Doc. No. 53.) In its Second Amended Answer, Century Motors brought a
Federal Rule of Civil Procedure 14 governs third-party practice and permits a civil defendant to
sue a party who has not yet been named as a defendant in the case. The original defendant is
then known as a third-party plaintiff, and the new party being sued is known as a third-party
defendant. The complaint filed against the third-party defendant is referred to as a "Third-Party
Previously, the City of Philadelphia and Officer Boyle filed a Third-Party Complaint against the
Foster Defendants. (Doc. No. 12.) The City and Officer Boyle, however, voluntarily dismissed
the Third-Party Complaint on September 3, 2013. (Doc. No. 40.)
Federal Rule of Civil Procedure 13 governs crossclaims and permits any party to the lawsuit to
assert a claim against a co-party, as long as the claim arises out of the transaction or occurrence
that is the subject matter of the original action or counterclaim, or if the claim relates to any
property that is the subject matter of the original action.
Century Motors initially filed its crossclaim against the Foster Defendants on June 26, 2013.
(Doc. No. 16.) On July 31, 2013, Judge Tucker granted the Foster Defendants' Motion to
crossclaim against the City of Philadelphia, Officer Boyle, and Alfred Jefferson. (Doc. No. 48 at
41-4 2.) Century Motors also asserted a crossclaim against the Foster Defendants seeking
indemnification and/or contribution. (Id. at 43-46.) On October 10, 2013, the Foster Defendants
filed a Motion to Dismiss Century Motors' crossclaim (Doc. No. 53), and this Motion is also
before the Court for disposition. For reasons that follow, the Court will grant in part and deny in
part the Foster Defendants' Motion to Dismiss Jefferson's Amended Third-Party Complaint. The
Court will also grant the Foster Defendants' Motion to Dismiss Century Motors' Crossclaim in
its entirety. 7
STANDARD OF REVIEW
The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) is set
forth in Ashcroft v. Igbal, 556 U.S. 662 (2009). After Iqbal it is clear that "threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements do not suffice" to
defeat a Rule 12(b)(6) motion to dismiss. Id. at 663. See also Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007). "To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face." Ethypharm S.A.
Dismiss the crossclaim and Century Motors leave to amend. (Doc. No. 28.) Century Motors
then filed its First Amended Answer with Affirmative Defenses and Crossclaims on August 5,
2013. (Doc. No. 29.) The Foster Defendants moved to dismiss the crossclaim for a second time
(Doc. No. 39-1), and on September 16, 2013, Judge Tucker again granted the motion to dismiss
(Doc. No. 46). Century Motors was given leave to amend its Answer once more, but Judge
Tucker ordered that "[n]o further curative amendments will be permitted." (Doc. No. 46.)
Century Motors then filed the Second Amended Answer on September 20, 2013. (Doc. No. 48.)
This Answer contains the crossclaim against the Foster Defendants which is the subject of one of
the motions to dismiss.
For purposes of this Opinion, the Court has considered the original Complaint (Doc. No. 1), the
Amended Third-Party Complaint of Alfred Jefferson (Doc. Nos. 55, 56), the Foster Defendants'
Motion to Dismiss Jefferson's Third-Party Complaint (Doc. No. 66), Alfred Jefferson's Response
in Opposition (Doc. No. 70), Defendant Century Motors' Second Amended Answer (Doc. No.
48), the Foster Defendants' Motion to Dismiss Century Motors' Second Amended Crossclaim
(Doc. No. 53), the Response of Century Motors in Opposition (Doc. No. 54-2), and the
arguments of counsel for the parties at a hearing on the Motions held on December 11, 2013.
France v. Abbott Labs., 707 F.3d 223, 231, n.14 (3d Cir. 2013) (quoting Sheridan v. NGK Metals
609 F.3d 239, 262 n.27 (3d Cir. 2010)). "A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Id. Applying the principles of Iqbal and Twombly, the Third
Circuit in Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. 2010), set forth a three-part
analysis that a district court in this Circuit must conduct in evaluating whether allegations in a
complaint survive a 12(b)(6) motion to dismiss:
First, the court must "tak[e] note of the elements a plaintiff must plead to state a
claim." Second, the court should identify allegations that, "because they are no
more than conclusions, are not entitled to the assumption of truth." Finally,
"where there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement for
Id. at 130 (quoting Igbal, 556 U.S. at 675, 679). "This means that our inquiry is normally broken
into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike
conclusory allegations, and then (3) looking at the well-pleaded components of the complaint
and evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
A complaint must do more than allege a plaintiff's entitlement to relief, it must "show"
such an entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.
2009) (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). "[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged -
but it has not 'shown' -
'that the pleader is entitled to relief."'
Iqbal, 556 U.S. at 679. The "plausibility" determination is a "context-specific task that requires
the reviewing court to draw on its judicial experience and common sense." Id.
The Foster Defendants filed two separate motions to dismiss. First, as Third-Party
Defendants, they filed a Motion to Dismiss Defendant/Third-Party Plaintiff Jefferson's Amended
Third-Party Complaint. (Doc. No. 66.) The Foster Defendants have also moved to dismiss
Century Motors' Second Amended Crossclaim brought against them. (Doc. No. 53.) The Court
will discuss each Motion seriatim.
1. Alfred Jefferson's Third-Party Complaint Alleges Facts Which Plausibly Give
Rise to a Cause of Action for Indemnification on Counts II-IV8
In his Complaint, Jefferson raises a claim for indemnification9 against the Foster
Defendants. Jefferson's claim is based on language in the Lease Agreement which states that
the Lessee will "fi]ndemnify and save Lessor harmless from any and all loss occasioned by
Lessee's breach of any of the covenants, terms and conditions of [the Lease Agreement], or
For reasons discussed, infra, Jefferson is precluded by law from asserting a claim for
indemnification on Count I-the § 1983 claim. As noted above, the three other claims in this
case are abuse of process (Count II); conversion (Count Ill); and civil conspiracy (Count IV).
"[l]ndemnification shifts the entire loss from one party to another." Richardson v. John F.
Kennedy Mem'I Hosp., 838 F. Supp. 979, 989 (E.D. Pa. 1993). A right to indemnification can
arise from a contract to indemnify or by operation of common law. Agere Sys., Inc. v. Advanced
Envtl. Tech. Corp., 552 F. Supp. 2d 515, 519 (E.D. Pa. 2008) (citation omitted). Absent a
contract to indemnify, a defendant will be entitled to indemnification if, due to no fault of his
own, he has been legally compelled to pay for damages primarily caused by another. Id.
(quotation omitted). In this case, the Lease Agreement is the contract with the indemnification
Jefferson, West Johnson Garage, Foster, and a man named Donald J. Shields are all parties to
the Lease Agreement. (Doc. No. 56, Exhibit A at~ 1.) To the extent Jefferson's claim for
indemnification is based on the Lease Agreement, it would likely fail as to Third-Party
Defendant International Collectibles, Inc., because this corporation is not a party to the Lease
Agreement. At the hearing held on the Motion on December 11, 2013, it became evident that
International Collectibles had property stored at the West Johnson Garage when the police came
on May 16, 2011 and removed its contents. Given this fact, it is premature to dismiss
International Collectibles as a Third-Party Defendant on Counts II to IV at this stage of the
caused by his family, guests, visitors, agents and employees." (Doc. No. 56, Exhibit A at~ 9(i)
(emphasis added).) According to Jefferson, Foster covenanted and agreed that:
a. Foster will indemnify Jefferson for any and all loss occasioned by Foster's
breach of any of the covenants, terms and conditions [of] this lease.
b. Foster will surrender the premises in the same condition in which he
c. Foster may store his goods and effects in the building, and that goods left
over thirty days after the expiration of his occupancy may be sold without
d. Jefferson is expressly released as bailee or otherwise insulated from all
claims for any such loss or damage resulting from goods and effects
e. The termination of this lease or the taking or recovering of the premises
shall not deprive Jefferson of any of its remedies or action against Foster.
(Doc. No. 56
5.) Pursuant to the terms of the Lease Agreement, Jefferson filed the Third-
Party Complaint against the Foster Defendants seeking indemnification.
In their Motion to Dismiss Jefferson's Complaint, the Foster Defendants argue that the
indemnity clause in the Lease Agreement does not, and cannot, apply to Plaintiffs' claims. (Doc.
No. 66 at 6.) They contend that the language in the Lease does not provide a basis for Jefferson's
claim for indemnification. (Id. at 8.) According to the Lease, Foster and West Johnson Garage
agreed to "[i]ndemnify and save [Jefferson] harmless from any and all loss occasioned by [their]
breach of any of the covenants, terms and conditions of [the Lease Agreement.]" (Doc. No. 56,
Exhibit A at~ 9(i).) Under a covenant in the Lease, any goods left over thirty days after the
expiration of Foster's occupancy could have been sold at public or private sale without further
notice. (Doc. No. 56 at~ 10. See also id., Exhibit A at~ 7(a).) The Lease also provides that the
Foster Defendants would "[p]eaceably deliver up and surrender possession of the demised
premises to the Lessor at the expiration or sooner termination of [the Lease Agreement],
promptly delivering to Lessor at his office, all keys for the demised premises, with all trash and
personal belongings removed and building(s) broom-swept clean." (Id. at ii 9(f) (emphasis
According to Jefferson, "[a]t the time of the Writ of Possession/Eviction, Foster had
goods and effects, including Plaintiffs' vehicles and property, stored in the building." (Doc.
No. 56 at ii 7.) Jefferson also claims that Foster had ample time to either remove the goods from
the West Johnson Garage or to notify Plaintiffs to do so. (Id. at ii 8.) Accepting these facts as
true, they plausibly demonstrate that the Foster Defendants breached at least two covenants of
the Lease Agreement, which required that goods left over thirty days after the expiration of the
occupancy may be sold without further notice and that all trash and personal belongings be
removed at the termination of the lease. (Doc. No. 56, Exhibit A at ii 9(f).) According to the
Lease Agreement, Jefferson is entitled to indemnification for any loss caused by the breach of a
covenant of the Lease Agreement. Thus, Jefferson's claim for indemnification will not be
dismissed at this time.
Next, the Foster Defendants contend that Jefferson is precluded from seeking indemnity
because Plaintiffs allege that Jefferson committed intentional torts. (Doc. No. 66 at 7.) As an
initial matter, "[u]nder Pennsylvania law, indemnity is available only (1) 'where there is an
express contract to indemnify,' or (2) where the party seeking indemnity is vicariously or
secondarily liable for the indemnitor's acts." Allegheny Gen. Hosp. v. Philip Morris, Inc., 228
F.3d 429, 448 (3d Cir. 2000) (quoting Richardson v. John F. Kennedy Mem'l Hosp., 838 F. Supp.
979, 989 (E.D. Pa. 1993)). If there is no express contract to indemnify, then the party seeking
indemnity must rely on the second option-common law indemnification. Id. Common law
indemnification is appropriate when a defendant's liability "arises not out of its own conduct, but
out of a relationship that legally compels the defendant to pay for the act or omission of a third
party." Morris v. Lenihan, 192 F.R.D. 484, 489 (E.D. Pa. 2000). The common law right of
indemnity "enures to a person who, without active fault on his own part, has been compelled, by
reason of some legal obligation, to pay damages occasioned by the initial negligence of another,
and for which he himself is only secondarily liable. " 11 Id. at 488 (quoting Builders Supply Co. v.
McCabe, 77 A.2d 368, 370 (Pa. 1951)) (emphasis in original).
Because the party seeking common law indemnity must demonstrate that there was no
active fault on his own part, "indemnity is unavailable to an intentional tortfeasor because it
would permit him to escape liability for his own deliberate acts." Bancroft Life & Cas. ICC, Ltd.
v. Intercontinental Mgmt., Ltd., No. 10-704, 2012 WL 1150788, *6 (W.D. Pa. Apr. 5, 2012). See
also Harmelin v. Man Fin. Inc., No. 06-1944, 2007 WL 2932866, *5, n.6 (E.D. Pa. Oct. 2, 2007)
(explaining that Pennsylvania does not permit indemnification for intentional torts); Britt v. May
Dep't Stores Co., No. 94-3112, 1994 WL 585930, *3 (E.D. Pa. Oct. 14, 1994) ("The established
rule oflaw is that indemnity is unavailable to an intentional tortfeasor .... "); Canavin v. Naik,
Secondary liability exists ... where there is a relation of employer and employee,
or principal and agent; if a tort is committed by the employee or the agent
recovery may be had against the employer or the principal on the theory of
respondeat superior, but the person primarily liable is the employee or agent who
committed the tort, and the employer or principal may recover indemnity from
him for the damages which he has been obliged to pay. Another example, and
perhaps the most familiar one, is when a pedestrian is injured by falling in a hole
in the pavement of a street; in such a case the abutting property owner is primarily
liable because of his failure to maintain the pavement in proper condition, but the
municipality is secondarily liable because of its having neglected to perform its
duty of policing the streets and seeing to it that the property owners keep them in
repair; if therefore the injured person chooses to bring suit against the
municipality the latter can recover indemnity from the property owner for the
damages which it has been called upon to pay.
Builders Supply, 77 A.2d at 370.
648 F. Supp. 268, 269 (E.D. Pa. 1986) ("Indemnity is likewise unavailable to an intentional tortfeasor because it would permit him to escape liability for his own deliberate acts."). This means
that "[a]bsent a contract to the contrary, indemnity is not available to a party who is actively
negligent" or engages in intentionally tortious conduct. Agere Sys., Inc. v. Advanced Envtl.
Tech. Corp., 552 F. Supp. 2d 515, 519 (E.D. Pa. 2008) (citations omitted).
In this case, Plaintiffs assert claims against Jefferson for civil rights violations, abuse of
process, conversion, and civil conspiracy. The Foster Defendants argue that these are intentional
tort claims, and therefore, Jefferson cannot seek common law indemnification under
Pennsylvania law. However, Jefferson does not make a claim for common law indemnity.
Instead, Jefferson relies on an express contract to indemnify-the Lease Agreement. In each of
the cases cited by the Foster Defendants, 12 there was no contract to indemnify, so the parties
seeking indemnification relied on common law principles. Thus, indemnification was not
available for the underlying intentional torts. This case is distinguishable because there is an
express contract to indemnify, and Jefferson does not need to rely on a theory of common law
indemnification. Therefore, the rule that an intentional tortfeasor cannot seek common law
indemnification is inapplicable here and has no bearing on Jefferson's claim for indemnification
based on the Lease Agreement. 13
The Foster Defendants relied on the following cases, which did not involve express contracts
to indemnify: Bancroft Life & Cas. ICC, Ltd. v. Intercontinental Mgmt., Ltd., No. 10-704, 2012
WL 1150788 (W.D. Pa. Apr. 5, 2012); Morris v. Lenihan, 192 F.R.D. 484 (E.D. Pa. 2000);
Canavin, 648 F. Supp. 268.
Even if Jefferson made a claim for common law indemnification, it would be premature to
dismiss the claim at this stage of the litigation. First, Jefferson denies that he engaged in any
intentionally tortious conduct. (Doc. No. 56 at if 12.) Accepting this fact as true, Jefferson could
make a claim for common law indemnification. However, if a jury were to find that Jefferson
did commit an intentional tort, then he would not be entitled to indemnity under the common
law. It is too early in the litigation, however, to determine whether Jefferson engaged in
Finally, the Foster Defendants contend that indemnification is inappropriate for § 1983
claims. (Doc. No. 66 at 7.) In support of this argument, the Foster Defendants rely on Rocuba v.
Mackrell, No. 10-1465, 2011 WL 5869787 (M.D. Pa. Nov. 22, 2011). In Rocuba, the district
court found that "there exists no claim for indemnity or contribution for § 1983 actions."
Rocuba, 2011 WL 5869787 at *3. In reaching this decision, however, the district court relied on
cases that dealt solely with claims for contribution, despite using the terms "indemnification" and
"contribution" interchangeably. Contribution and indemnity are not one and the same. Instead,
they are "separate and distinct causes of action. The right of contribution arises as between joint
[tortfeasors] where a party has paid more than its fair share of liability to a third party." Agere,
552 F. Supp. 2d at 519 (citation omitted). Contribution ensures that the loss is distributed
equally, so that "each joint tortfeasor pay[s] his or her pro rata share." Lasprogata v. Qualls, 397
A.2d 803, 805, n.2 (Pa. 1979). On the other hand, "[a] right of [i]ndemnity exists when the
entire loss is imposed on one person." Id. Unlike contribution, common law indemnification
requires a showing that the party seeking indemnity is without active fault, making this remedy
unavailable among joint tortfeasors who share responsibility for the plaintiff's harm. Agere, 552
F. Supp. 2d at 519.
While the Rocuba court explained that "[a] majority of courts ... have found that there
exists no claim for indemnity or contribution for§ 1983 actions[,]" 2011 WL 5869787 at *3
intentionally tortious conduct. Second, Plaintiffs brought a conversion claim in Count III, and
conversion is not necessarily an intentional tort. Under Pennsylvania law, a "defendant need not
have a conscious intent of wrongdoing to be liable for conversion, as long as he has exercised
wrongful control over the goods." Prudential Ins. Co. of Am. v. Stella, 994 F. Supp. 318, 323-24
(E.D. Pa. 1998) (citing Fort Washington Res., Inc. v. Tannen, 846 F. Supp. 354, 361 (E.D. Pa.
1994)). See also L.B. Foster Co. v. Charles Caracciolo Steel & Metal Yard, Inc., 777 A.2d 1090,
1095 (Pa. Super. Ct. 2001) (" [T]he tort of conversion does not rest on proof of specific intent to
commit a wrong.") Thus, even if Jefferson were making a claim for common law indemnity, the
rule prohibiting indemnity for intentional torts would not bar indemnification for negligent
(collecting cases), the district court only relied on cases which have held that there is no federal
right to contribution under § 1983 .14 As noted above, contribution and indemnification are
distinct causes of action and should be analyzed separately. Section 1983 neither expressly
provides for contribution nor indemnification. 15 The Supreme Court has explained that
"inevitably[,] existing federal law will not cover every issue that may arise in the context of a
federal civil rights action[,]" and a federal law may be deficient where it is "unsuited or
insufficient 'to furnish suitable remedies[.]"' Moor v. Alameda Cnty., 411 U.S. 693, 702-03
(1973). When federal law is "deficient" in this manner, 42 U.S.C.A. § 1988(a) authorizes federal
courts to look to state law for a suitable remedy, as long as the state law is "not inconsistent with
the Constitution and laws of the United States." Kohn v. Sch. Dist. of City of Harrisburg, No.
11-109, 2012 WL 3560822, *4 (M.D. Pa. Aug. 16, 2012) (quoting 42 U.S.C.A. § 1988(a)). 16 See
See note 26, infra, for a discussion of this line of cases.
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, except that in
any action brought against a judicial officer for an act or omission taken in such
officer's judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. For the
purposes of this section, any Act of Congress applicable exclusively to the District
of Columbia shall be considered to be a statute of the District of Columbia.
42 U.S.C.A. § 1983.
42 U.S.C.A. § 1988(a) provides:
The jurisdiction in civil and criminal matters conferred on the district courts by
the provisions of titles 13, 24, and 70 of the Revised Statutes for the protection of
all persons in the United States in their civil rights, and for their vindication, shall
be exercised and enforced in conformity with the laws of the United States, so far
also Robertson v. Wegmann, 436 U.S. 584, 587 (1978). Since federal law appears to be deficient
on the right of indemnity in§ 1983 actions, 17 the Court may look to Pennsylvania law. See
Kohn, 2012 WL 3560822 at *4, *5 (finding §1983 deficient for failing to provide a right of
contribution and subsequently looking to Pennsylvania law to supply such a right). See also
Robertson, 436 U.S. at 589 (agreeing with lower courts that federal law was deficient for failing
to cover the survival of civil rights actions under § 1983 upon the death of either the plaintiff or
As discussed above, Pennsylvania provides for indemnification based on either an
express contract to indemnify or the common law. See Allegheny, 228 F.3d at 448. Having
established that Pennsylvania law provides for indemnification, the question becomes whether
this law is consistent with the Constitution and federal law. See Kohn, 2012 WL 3560822 at *4,
*5. According to the Supreme Court, two main purposes underlie § 1983: 1) the compensation
of civil rights victims; and 2) the prevention of abuse of power through deterrence. See Wyatt v.
Cole, 504 U.S. 158, 161 (1992) (citing Carey v. Piphus, 435 U.S. 247, 253 (1978)); Robertson,
436 U.S. at 590-91 (citations omitted). The Supreme Court explained that the "deterrence of
future abuses of power by persons acting under color of state law is an important purpose of
§ 1983." City ofNewport v. Fact Concerts, Inc., 453 U.S. 247, 268 (1981) (citations omitted).
as such laws are suitable to carry the same into effect; but in all cases where they
are not adapted to the object, or are deficient in the provisions necessary to
furnish suitable remedies and punish offenses against law, the common law, as
modified and changed by the constitution and statutes of the State wherein the
court having jurisdiction of such civil or criminal cause is held, so far as the same
is not inconsistent with the Constitution and laws of the United States, shall be
extended to and govern the said courts in the trial and disposition of the cause ...
Section 1983 appears to be deficient because the statute does not discuss whether
indemnification is available or not.
In this case, Plaintiffs have not sued the Foster Defendants, nor have they alleged that the
Foster Defendants are liable for a § 1983 violation. Likewise, Jefferson does not allege that the
Foster Defendants violated this civil rights statute. Thus, if a jury were to find that Jefferson
committed a § 1983 violation, requiring the Foster Defendants to indemnify Jefferson would not
advance § 1983 's goal of deterrence. Instead, it would permit a civil rights violator to escape
liability for his actions. In this case, Pennsylvania law would be inconsistent with § 1983 's
purpose of deterring civil rights violations. Therefore, Jefferson cannot maintain an indemnity
claim for the underlying § 1983 action in Count I of Plaintiffs' Complaint. While Jefferson has
pled facts which plausibly give rise to a claim for indemnification for Counts II-IV, discussed
supra, the indemnity claim for Count I will be dismissed.
2. Century Motors' Claim Against the Foster Defendants, While Properly Styled as
a Crossclaim, Will be Dismissed for Failure to Allege Facts Which Plausibly Give
Rise to a Cause of Action for Indemnification and/or Contribution
In its Second Amended Answer, Century Motors asserts a crossclaim against the Foster
Defendants for common law indemnification and/or contribution. 18 In the crossclaim, Century
Motors alleges that the Foster Defendants were bailees who failed to safeguard Plaintiffs'
property stored in the West Johnson Garage. (Doc. No. 48 at 45.) Century Motors contends that
if it is held liable to Plaintiffs for their loss, then the Foster Defendants may be liable to Century
Motors for indemnification and/or contribution. (ill) The Court will treat the crossclaim as
seeking both. The Foster Defendants argue that both claims are improper for various reasons.
Unlike Jefferson, who has only asserted a claim for indemnification against the Foster
Defendants, Century Motors has made claims for indemnification and/or contribution against
a. Century Motors' Claim Against the Foster Defendants is Properly Styled
a Crossclaim Under Rule 13(g)
As an initial matter, the Foster Defendants assert that a procedural defect should result in
dismissal of the crossclaim. They contend that they were not co-parties with Century Motors,
and therefore, a crossclaim cannot properly be maintained against them under Federal Rule of
Civil Procedure 13(g). (Doc. No. 53 at 5.) This Rule states as follows:
A pleading may state as a crossclaim any claim by one party against a coparty if
the claim arises out of the transaction or occurrence that is the subject matter of
the original action or of a counterclaim, or if the claim relates to any property that
is the subject matter of the original action. The crossclaim may include a claim
that the coparty is or may be liable to the cross-claimant for all or part of a claim
asserted in the action against the cross-claimant.
Fed. R. Civ. P. 13(g). Given the language of the Rule, Century Motors could only bring a
crossclaim against the Foster Defendants ifthe Foster Defendants and Century Motors were coparties. Thus, the Court must decide whether the Foster Defendants were co-parties with
Century Motors when Century Motors filed its Second Amended Crossclaim against the Foster
Defendants. Pertinent to this decision is the fact that on August 13, 2013, Jefferson filed a ThirdParty Complaint against the Foster Defendants, making them Third-Party Defendants in the case.
(Doc. No. 34.) Then, on September 20, 2013, Century Motors, already a defendant in this case,
filed its Second Amended Crossclaim against the Foster Defendants, who were named as such by
Jefferson in his Third-Party Complaint.
Unfortunately, "[t]he Federal Rules do not define who is a 'co-party' for purposes of
Rule 13(g), and the courts in this Circuit have not settled the issue of whether an original
defendant and a third-party defendant are co-parties such [that] they may assert cross-claims
against one another." Reynolds v. Rick's Mushroom Serv., Inc., No. 01-3773, 2006 WL
1490105, *5 (E.D. Pa. May 26, 2006). Some courts have permitted a crossclaim between an
original defendant, like Century Motors, and third-party defendants, like the Foster Defendants.
Id. (collecting cases). When courts have allowed a crossclaim in this circumstance, "the original
defendant and third-party defendant 'were considered 'co-parties' since they were not opposing
parties and were clearly non-adverse before the filing of the cross-claim.'" Id. (quoting
Keystone Coke Co. v. Pasquale, No. 97-6074, 1999 WL 130626, *1 (E.D. Pa. Mar. 9, 1999)).
As such, it appears that the Foster Defendants and Century Motors were co-parties, and therefore
it was permissible for Century Motors to crossclaim against the Foster Defendants.
In disputing the notion that they were co-parties with Century Motors, the Foster
Defendants rely on Reynolds, in which the district court held that the original defendants and
third-party defendants were not "co-parties" because their interests were adverse before the
crossclaims were filed. Id. Reynolds involved a dispute between neighboring landowners
regarding pollution of the plaintiffs' pond in violation of federal and state law. There were three
original defendants in Reynolds. In 2003, the original defendants unsuccessfully tried to join
nineteen defendants by filing a third-party complaint pursuant to Rule 14. 19 Id. at* 1. The Court
declined to permit the third-party complaint for various reasons. 20 The litigation continued, and
in 2006, the plaintiffs filed an amended complaint, adding a new defendant. Id. That new
defendant subsequently filed a third-party complaint against thirty-four additional defendants.
Id. Shortly thereafter, the three original defendants filed crossclaims against the newly joined
third-party defendants, pursuant to Rule 13(g). Id. For various reasons, the Court severed the
Federal Rule of Civil Procedure 14 governs third-party practice, and provides in relevant part:
"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)(l).
Those reasons included: 1) the Complaint was untimely and filed without leave of court;
2) adding nineteen defendants would significantly prejudice the plaintiffs; 3) joinder would
complicate issues at trial; and 4) the addition of new defendants would substantially delay trial.
Reynolds, 2006 WL 1490105 at *2.
third-party complaint, leaving the new defendant to pursue his third-party claims in a separate
action. Id. at *5.
In addition, the Court struck the original defendants' crossclaims against the third-party
defendants. Id. In doing so, the Court reasoned that in prior cases, original defendants and thirdparty defendants were considered co-parties when they "were clearly non-adverse before the
filing of the cross-claim." Id. (quotation omitted). Some of the thirty-four third-party defendants
were the same parties that the original defendants had previously tried to join in their 2003 thirdparty complaint that was dismissed. Id. Given this fact, the Court found that the original
defendants' interests were clearly adverse to the third-party defendants' and struck the
crossclaims as improper under Rule 13(g). Id.
The current case is dissimilar from Reynolds. Unlike the original defendants in
Reynolds, Century Motors has never filed a third-party complaint against the Foster Defendants
that was previously disallowed by the Court. In Reynolds, the Court was apprehensive that the
original defendants were trying to circumvent the Court's prior ruling by repackaging their
claims under Rule 13(g). Id. That is not a concern in this case. In addition, the Reynolds court
was concerned about the effects of permitting additional claims against thirty-four new
defendants in a case that had already been ongoing for many years. Id. The present case was
filed less than a year ago, and there are only crossclaims against three third-party defendants,
rather than thirty-four. The fears about complication and delay that worried the Court in
Reynolds are not cause for concern here.
Another decision, Earle M. Jorgenson Co. v. T.I. U.S., Ltd., is more instructive. 133
F.R.D. 472 (E.D. Pa. 1991). In Jorgenson, the Court held that the original defendant and the
third-party defendant were co-parties for purposes of Rule 13(g) because they were not opposing
parties when the original defendant filed a crossclaim against the third-party defendant. The
Court reasoned that "opposing parties," or adverse parties, "are parties that formally oppose each
other on a pleaded claim, such as plaintiffs and original defendants, or third-party plaintiffs and
the third-party defendants they have joined." Id. at 475. Because the original defendant and the
third-party defendant did not formally oppose each other prior to the crossclaim, the Court held
that they were not opposing parties, and were therefore considered co-parties for purposes of
In reaching this conclusion, the Court relied on a case from the Southern District of
Georgia. There, the district court reasoned:
The Rules are to "be construed to secure the just, speedy, and inexpensive
determination of every action." Fed. R. Civ. P. 1. To construe Rule 13(g) as not
encompassing claims asserted by original defendants against third party
defendants would force additional, independent actions to be filed. . . .
Accordingly, the Court construes "co-party" to mean any party that is not an
opposing party. This comports with the structure of the federal rules, which
envision three types of claims that may be asserted by defendants: counterclaims,
third-party claims, and cross-claims. Rule 13(a) provides that a counterclaim may
be brought against any "opposing party." Rule 14(a) provides that a third-party
complaint may be brought against "a person not a party." Finally, Rule 13(g)
provides for cross-claims against "co-parties." Certainly, the relationship
between an original defendant and a third-party defendant fits somewhere into
this framework. Characterizing the relationship as that of "co-parties" appears to
be the logical choice.
Georgia Ports Auth. v. Construzioni Meccaniche Industriali Genovesi, S.P.A., 119 F.R.D. 693,
695 (S.D. Ga. 1988). This reasoning is persuasive. Like the parties in Jorgenson, Century
Motors and the Foster Defendants did not become opposing parties until Century Motors filed its
crossclaim. Therefore, they are co-parties for purposes of Rule l 3(g), and the crossclaim is
b. Century Motors' Conclusory Statement that the Foster Defendants May
be Liable to Century Motors is Not Sufficient to Allege a Claim for
Indemnification and/or Contribution
Second, the Foster Defendants contend that the crossclaim fails to allege facts which
demonstrate that they are directly liable to Century Motors. (Doc. No. 53 at 5.) According to the
Foster Defendants, both Rules 1421 and 13(g) require Century Motors to plead facts which
demonstrate that the Foster Defendants are liable to them rather than to the Plaintiffs. (Id. at 7.)
They argue that "the language of Rule 13(g) ... clearly contemplates that a crossclaim must set
forth sufficient facts to demonstrate that the coparty is liable to the crossclaimant." (Id.) In
relevant part, the Rule provides that "[t]he crossclaim may include a claim that the coparty is or
may be liable to the cross-claimant for all or part of a claim asserted in the action against the
cross-claimant." Fed. R. Civ. P. 13(g). Similarly, as noted above, Ashcroft v. Iqbal requires that
Century Motors plead enough facts, accepted as true, to plausibly show that the Foster
Defendants are liable to Century Motors for the alleged misconduct. Ethypharm, 707 F .3d at
231, n.14 (3d Cir. 2013) (quotation omitted). Conclusions oflaw are not sufficient.
In its crossclaim, Century Motors asserts that "should the factual allegations of Plaintiffs'
Complaint be proven true, then [the Foster Defendants] are alone liable to Plaintiffs, are Jointly
and/or Severally liable to Century Motors, and/or are liable over to Century Motors by way of
indemnity and/or contribution upon Plaintiffs' claims." (Doc. No. 48 at 45.) This "mere
conclusory statement" does not meet the pleading requirements set forth in Iqbal. 556 U.S. at
The Foster Defendants contend that Century Motors' claim is more akin to a third-party
complaint that should be governed by Rule 14, rather than a crossclaim under Rule 13(g). (Doc.
No. 53 at 7.) However, the Court has determined that Century Motors' claim is properly styled
as a crossclaim under Rule 13(g). Therefore, the Court need not address the Foster Defendants'
arguments regarding Rule 14, which 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." Fed. R. Civ. P. 14(a)(l).
663. Likewise, this legal conclusion does not satisfy Rule 13(g), which also requires supporting
facts. Viewing the allegations in the crossclaim in the light most favorable to Century Motors,
the facts alleged fail to give rise to a claim for indemnification or contribution. Because
indemnification and contribution are distinct causes of action, the Court will discuss each one
Century Motors Fails to State a Claim for Indemnification
The Foster Defendants argue that Century Motors' crossclaim fails to set forth a valid
indemnity claim for two reasons. First, as mentioned above, they assert that Century Motors
fails to allege any facts which demonstrate that the Foster Defendants are directly liable to
Century Motors for indemnification. Second, the Foster Defendants claim that Century Motors
cannot seek indemnity for the intentional torts alleged against it, since "[common law]
indemnification can only be sought by a party 'without active fault on his own part."' (Doc. No.
53 at 11 (original emphasis) (quotation omitted).) As part of this argument, the Foster
Defendants reiterate that indemnification is not permitted for§ 1983 violations. (Id. at 13.) For
the following reasons, the Court will grant the Foster Defendants' motion to dismiss Century
Motors' crossclaim for indemnification.
"Under Pennsylvania law, indemnity is available only (1) 'where there is an express
contract to indemnify,' or (2) where the party seeking indemnity is vicariously or secondarily
liable for the indemnitor's acts." Allegheny, 228 F.3d at 448 (quotation omitted). Thus, as noted
above, a defendant may seek indemnification based on an express contract or common law
principles. In its crossclaim, Century Motors does not allege that there is an express contract to
indemnify between the Foster Defendants and Century Motors. Therefore, Century Motors can
only rely on principles of common law indemnification.
To make out a claim for common law indemnification, Century Motors must demonstrate
that "without active fault on [its] own part, [Century Motors] has been compelled, by reason of
some legal obligation, to pay damages occasioned by the initial negligence of [the Foster
Defendants], and for which [it] is only secondarily liable." Morris, 192 F.R.D. at 488 (quotation
omitted) (emphasis in original). In its crossclaim, Century Motors fails to identify a legal
obligation22 that compels it to pay for harm primarily caused by the Foster Defendants' actions.
If such an obligation existed, then it would allow Century Motors to seek indemnification from
the Foster Defendants. Because Century Motors has failed to demonstrate how-and under what
legal theory-the Foster Defendants are liable to Century Motors, its claim for indemnification is
insufficient and will be dismissed. Because the crossclaim will be dismissed for this reason, the
Court need not discuss the Foster Defendants' additional arguments in support of dismissal. 23
Century Motors Fails to State a Claim for Contribution
The Foster Defendants also assert that Century Motors' crossclaim fails to set forth a
valid claim for contribution because Century Motors does not allege any facts which plausibly
demonstrate that the Foster Defendants and Century Motors are joint tortfeasors. The Court
agrees and will dismiss Century Motors' contribution claim as well.
Unlike the right to common law indemnity, which is unavailable among joint tortfeasors,
"the right to contribution only arises among joint tortfeasors." Richardson, 838 F. Supp. at 989
See note 11, supra, for examples of legal obligations which compel one party to pay for the
harm primarily caused by another.
The Foster Defendants' also argue that Century Motors cannot seek indemnification for
intentional torts or § 1983 violations. With regard to the intentional torts argument, it would be
premature to dismiss the claim at this stage of the litigation for the same reasons discussed in
note 13, supra. However, regarding the Foster Defendants' argument that indemnification is not
permitted for § 1983 violations, the Court agrees and would have dismissed the § 1983
indemnification claim for the same reasons discussed in Section 111.1, supra.
(emphasis added). Thus, to establish a right of contribution under Pennsylvania law, Century
Motors must demonstrate that it and the Foster Defendants are joint tortfeasors. See Travelers
Indem. Co. v. Stengel, 512 F. App'x 249, 251 (3d Cir. 2013). Joint tortfeasors are "two or more
persons jointly or severally liable in tort for the same injury to persons or property, whether or
not judgment has been recovered against all or some of them." 42 Pa. Cons. Stat. Ann. § 8322.
Pennsylvania courts consider the following factors to determine joint and several liability:
[T]he identity of a cause of action against each of two or more defendants; the
existence of a common, or like duty; whether the same evidence will support an
action against each; the single, indivisible nature of the injury to the plaintiffs;
identity of the facts as to time, place, or result; whether the injury is direct and
immediate, rather than consequential; responsibility of the defendants for the
same injuria as distinguished from the damnum. 24
Morris, 192 F.R.D. at 490 (E.D. Pa. 2000) (quotations omitted). Nowhere in its crossclaim does
Century Motors allege that it and the Foster Defendants are joint tortfeasors. 25 Moreover, the
crossclaim is devoid of any discussion of all of the factors which courts use to determine whether
joint and several liability is appropriate. As pled, the crossclaim fails to establish that the Foster
Defendants may be liable to Century Motors for contribution. 26
"Injuria" is a Latin term for an injury or the invasion of another's rights. "Damnum" refers to
damages or a loss in value.
While Century Motors makes this allegation in its opposing brief (Doc. No. 54-2 at 10-11 ), the
crossclaim itself is completely devoid of any discussion of joint and several liability and whether
Century Motors and the Foster Defendants are joint tortfeasors. As mentioned above,
contribution is only available between joint tortfeasors. The crossclaim fails to allege a valid
claim for contribution.
The Foster Defendants also argue that Century Motors cannot seek contribution for§ 1983
violations. (Doc. No. 53 at 13.) District courts in the Third Circuit have struggled with whether
there is a federal right to contribution on a § 1983 claim. See Kohn v. Sch. Dist. of City of
Harrisburg, No. 11-109, 2012 WL 1598096, *6, n.9 (M.D. Pa. May 7, 2012) ("The issue is far
from clear .... "); Williams v. City of Philadelphia, No. 08-1979, 2010 WL 2977485, *7 (E.D.
Pa. July 27, 2010) ("Whether§ 1983 supports the contribution claim that Third-Party Plaintiffs
assert against Third-Party Defendants is open to question."); Diaz-Ferrante v. Rendell, No. 9523
5430, 1998 WL 195683, *4 (E.D. Pa. Mar. 30, 1998) ("[T]he viability of a contribution claim in
a§ 1983 action is thus dubious."). This confusion stems from concerns regarding the continued
applicability of a Third Circuit case, Miller v. Apartments & Homes of New Jersey, Inc., 646
F.2d 101 (3d Cir. 1981 ). There, the plaintiffs brought claims against the defendants for violations
of the Fair Housing Act, 42 U.S.C.A. 3601 et seq., and the Civil Rights Act under 42 U.S.C.A.
§ 1982. Both statutes prohibit discrimination in housing. In Miller, the "Third Circuit found an
implied right to contribution as a matter of federal common law and indicated that defendants
adjudicated to be liable may have the amount of liability reduced by the amount paid by [codefendants who previously settled with the plaintiffs]." Rocuba, 2011 WL 5869787 at *3, n.5.
In reaching this decision, the Third Circuit relied on Glus v. G. C. Murphy Co., 629 F.2d
248 (3d Cir. 1980) cert. granted, judgment vacated sub nom. Retail, Wholesale & Dep't Store
Union,AFL-CIO v. G.C Murphy Co., 451U.S.935 (1981). Glus held that although Title VII did
not specifically provide for a right to contribution, a right of contribution nonetheless existed as a
matter of federal common law. The Miller Court relied on Glus for the proposition that
"[f]ederal courts have fashioned common law contribution principles in civil rights cases" and
therefore found that contribution was available for § 1982 claims. Miller, 646 F.2d at 108.
Shortly after Miller was decided, however, the Supreme Court held that other federal laws did
not implicitly create a federal right to contribution. See Texas Indus., Inc. v. Radcliff Materials,
Inc., 451U.S.630 (1981) (finding no right of contribution under federal antitrust laws); Nw.
Airlines, Inc. v. Transp. Workers Union of Am., AFL-CIO, 451 U.S. 77 (1981) (finding that no
right for contribution exists under the Equal Pay Act or Title VII). The Supreme Court vacated
Gius and remanded the case to the Third Circuit for further consideration in light ofNw. Airlines.
Retail, Wholesale & Dep't Store Union, AFL-CIO v. G.C Murphy Co., 451 U.S. 935 (1981 ). On
remand, the Third Circuit recognized that Title VII did not permit contribution claims, thus
removing the foundation upon which Miller relied. Retail, Wholesale & Dep't Store Union,
AFL-CIO v. G.C. Murphy Co., 654 F.2d 944 (3d Cir. 1981).
Even though Miller dealt with claims under § 1982 and the Fair Housing Act, rather than
§ 1983, district courts have looked to Miller in determining whether there can be a claim for
contribution for § 1983 actions-presumably because Miller is also a civil rights case. Because
Miller relied on Gius, and Gius was subsequently vacated, district courts have questioned
Miller's precedential value. See, e.g., Rocuba, 2011 WL 5869787 at *3, n.5; Diaz-Ferrante,
1998 WL 195683 at *4, n.1. While some district courts in the Third Circuit have continued to
apply Miller to allow contribution for § 1983 claims, other district courts within the Circuit-and
a majority of courts outside it-have held that there can be no claim for contribution for § 1983
violations. See Rocuba, 2011 WL 5869787 at *3 (collecting cases). While it is true that Miller
has never been overruled, the Court agrees that the intervening Supreme Court decisions render
its precedential value suspect. Moreover, the Third Circuit has signaled that its holding in Miller
is narrower in scope and likely does not apply to contribution claims for § 1983 violations. See
Snyder v. Bazargani, 402 F. App'x 681, 682 (3d Cir. 2010) (explaining that in Miller, the Third
Circuit "held that there is a right to contribution from joint tort-feasors under the Fair Housing
Act"). Given Miller's history and the fact that a majority of courts do not permit contribution for
§ 1983 actions, it is unlikely that Century Motors could maintain a contribution claim for the
alleged § 1983 violation even if they alleged that the Foster Defendants were joint tortfeasors.
For the reasons set forth above, the Foster Defendants' Motion to Dismiss Jefferson's
Amended Third-Party Complaint will be granted in part and denied in part. Jefferson's claim for
indemnification of the § 1983 claim in Count I will be dismissed. However, the Court will deny
the Foster Defendants' Motion as it relates to Jefferson's claim for indemnification for Counts IIIV. The Foster Defendants' Motion to Dismiss Century Motors' Second Amended Crossclaim
will be granted in its entirety. Century Motors, however, will be granted leave to file a Third
Amended Answer. 27
In her Order from September 16, 2013, Judge Tucker stated that no further curative
amendments would be permitted as they related to Century Motors' crossclaim against the Foster
Defendants. (Doc. No. 46.) On this record Century Motors may have been unaware of why its
previous crossclaims were dismissed. This Court will grant Century Motors leave to file a Third
Amended Answer one more time, with the understanding that if Century Motors determines after
a full review of this Opinion that it cannot present plausible facts to support a crossclaim against
the Foster Defendants, none will be filed.
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