Knopick v. Connelly et al
Filing
128
MEMORANDUM (Order to follow as separate docket entry) re MOTION for Leave to File Third-Party Complaint 119 Signed by Honorable Sylvia H. Rambo on 11/12/13. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NICHOLAS KNOPICK,
Plaintiff
v.
PHILIP A. DOWNEY,
Defendant
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Civil No. 1:09-CV-1287
Judge Sylvia H. Rambo
MEMORANDUM
In this civil action invoking this court’s diversity jurisdiction pursuant
to 28 U.S.C. § 1332, Plaintiff filed a complaint alleging that two groups of attorneys
committed legal malpractice related to their representations of Plaintiff in connection
with a property settlement agreement and legal malpractice action arising therefrom.
Presently before the court is yet another motion filed by Defendant Downey, in
which he now seeks to file a third-party complaint against Plaintiff’s current counsel.
(Doc. 119.) For the following reasons, the motion will be denied.
I.
Background
Because the court writes primarily for the parties, and because the facts
of record have been summarized by this court in five separate memoranda (see, e.g.,
Doc. 29 (granting Connelly Defendants’ motion to dismiss); Doc. 32 (granting
Defendant Downey’s motion for summary judgment); Doc. 88 (denying Defendant
Downey’s second motion for summary judgment following remand); Doc. 107
(denying Defendant Downey’s motion for judgment on the pleadings and Plaintiff’s
motion for reconsideration); Doc. 121 (denying Defendant Downey’s motion for
certification to file an interlocutory appeal)), the court will only outline the facts
essential to this memorandum.
A.
Facts
On May 11, 1998, Plaintiff separated from his wife pursuant to a
Property Settlement Agreement (“PSA”). According to Plaintiff, at the time he and
his wife entered into the PSA, his wife was fully aware of all his assets, which
included approximately two million dollars worth of stock. Plaintiff also alleged that
his wife was aware, at the time of the PSA, that the stock was encumbered by a loan.
Plaintiff filed for divorce on July 30, 1999, and Plaintiff’s wife
thereafter challenged the validity of the PSA claiming that the agreement was invalid
because she was unaware of the extent of Plaintiff’s assets. On October 31, 2001,
Plaintiff retained the Connelly Defendants as his counsel. A hearing on the PSA’s
validity was held on August 2, 2004, before the Honorable Kathy A. Morrow of the
Perry County Court of Common Pleas. According to Plaintiff, prior to that date, he
informed the Connelly Defendants that several witnesses were available to testify
that his wife was aware of the stock at the time she entered into the PSA; however,
none of these witnesses were called at the hearing. On July 5, 2005, Judge Morrow
issued an order invalidating the PSA, finding that Plaintiff had failed to provide his
wife with a full and fair disclosure of his assets. On August 29, 2005, Plaintiff
discharged the Connelly Defendants.
On July 31, 2006, Plaintiff contacted Defendant Downey wishing to
have his case reviewed for any potential malpractice claims against the Connelly
Defendants. Defendant Downey contacted the Connelly Defendants, requesting
information regarding their representation of Plaintiff at the August 2, 2004 hearing.
On March 30, 2007, Defendant Downey and Plaintiff entered into a contingent fee
2
agreement, which defined the scope of representation as follows: “[Plaintiff] retains
[Defendant Downey] to institute, prosecute, negotiate and compromise claims or
actions as may be deemed advisable by [Defendant Downey] in [Plaintiff]’s best
interest to recover damages from [the Connelly Defendants].” Defendant Downey
never filed a malpractice suit against the Connelly Defendants, and on February 25,
2008, Defendant Downey informed Plaintiff that he would not pursue a legal
malpractice claim against the Connelly Defendants because Plaintiff was “limited to
a claim for breach of contract” and that the statute of limitations on that claim was
“two years,” which had begun to run on August 2, 2004, when the Connelly
Defendants failed to call potentially relevant witnesses at the hearing.
B.
Procedural History
Plaintiff initiated this case by filing a complaint on July 6, 2009. The
complaint named two sets of defendants, and brought, what Plaintiff labeled as, a
breach of contract claim against the Connelly Defendants in connection with their
state court representation of Plaintiff in the PSA proceedings (Count I), and a legal
malpractice (Count II) and breach of contract claim (Count III) against Defendant
Downey in connection with his failure to adequately prosecute Plaintiff’s legal
malpractice claim against the Connelly Defendants. (See Doc 1.)
On July 22, 2009, the Connelly Defendants filed a motion to dismiss
(Doc. 4), which the court granted on December 29, 2009, on the basis that the
applicable two-year statute of limitations1 had expired prior to the complaint’s July
22, 2009 filing date. (Doc. 29.) In arriving at its decision, the court found that,
The court found that the two-year statute of limitations for legal malpractice claims
applied to Plaintiff’s claim against the Connelly Defendants. (See Doc. 29, pp. 9-10.)
1
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despite Plaintiff labeling Count I as breach of contract against the Connelly
Defendants, the allegations contained therein were more properly asserted as an
action sounding in tort rather than contract. Specifically, the court reasoned:
These allegations, plainly read, employ tort-like language
and obligations rather than contract-like obligations, thus,
leading the court to conclude that the gist of the action is
one of tort not contract.
(Id. at p. 9 of 12.) Thus, although the court recognized that a plaintiff may bring a
malpractice claim under both contract and tort theories of liability, it held that
Plaintiff’s claim arose in tort, and applied Pennsylvania’s two-year statute of
limitations applicable to malpractice tort claims, 42 Pa. Cons. Stat. Ann. § 5524,
rather than the four-year statute of limitations applicable to contract claims, 42 Pa.
Cons. Stat. Ann § 5525. (See id.) Relevant to the instant motion, Plaintiff neither
sought to file an amended complaint properly stating a viable cause of action for
breach of contract nor appealed the court’s ruling.
On October 21, 2009, Defendant Downey filed both his answer (Doc.
13) and a motion for summary judgment on the two claims asserted against him
(Doc. 15), which the court granted on January 25, 2010, on the basis that the statute
of limitations had expired on Plaintiff’s claims against the Connelly Defendants
before Plaintiff retained Defendant Downey (Doc. 32). Plaintiff appealed that ruling
(see Doc. 34), and on April 13, 2011, the United States Court of Appeals for the
Third Circuit reversed and remanded, finding that reasonable minds could differ as to
the date on which Plaintiff discovered his injury (Doc. 37). On remand, Defendant
Downey filed a second motion for summary judgment, on the basis that the Connelly
Defendant’s did not commit malpractice because the invalidity of the PSA was due
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to Plaintiff’s own fraud (Doc. 49), which the court denied on May 6, 2013, finding
that a genuine issue of material fact existed as to whether the Connelly Defendants
committed malpractice by failing to call a certain witness who would have provided
support for Judge Morrow to find that Plaintiff’s wife was adequately aware of the
couple’s finances (Doc. 88).
Following a case management conference, the court issued a revised
case management order on June 11, 2013. (Doc. 93.) The order set a fact discovery
deadline of December 16, 2013, and listed the matter for trial to commence on May
5, 2014. (Id.) In light of the multiple motions already filed, the court prohibited the
filing of any further dispositive motions without leave of court. (Id.) On June 17,
2013, Defendant Downey filed a motion for judgment on the pleadings (Doc. 94),2
which requested judgment in his favor on the basis that Plaintiff had a viable claim
against the Connelly Defendants for all of his alleged harm at the time Plaintiff filed
suit against Defendant Downey. (Doc. 95, p. 2 of 12.) On August 5, 2013, the court
denied Defendant Downey’s motion, concluding that the record was not clear
whether Plaintiff had a claim available against the Connelly Defendants other than
the professional negligence claim that Defendant Downey never filed. (Docs. 107 &
108.) On August 20, 2013, Defendant Downey filed a motion requesting the court
certify its August 5, 2013 order for an interlocutory appeal (Doc. 112), which the
court denied on October 21, 2013, concluding that an immediate appeal would not
materially advance the ultimate termination of the litigation. (Docs. 121 & 122.)
The court permitted this motion be filed as Defendant Downey indicated his intention of
filing such a motion during the June 11, 2013 case management conference.
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Defendant Downey filed the instant motion on October 11, 2013. (Doc.
119.) In his motion, Defendant Downey acknowledges that he is beyond the time
permitted to file a third party complaint by both the applicable Federal Rules of Civil
Procedure and Local Rules of Court, but requests the court nevertheless permit him
to file a third-party complaint against Plaintiff’s current counsel (“Counsel”). (Doc.
120, p. 6 of 9.) Defendant Downey’s proposed claim against the would-be thirdparty defendants arises from Counsel’s failure to properly plead a breach of contract
action against the Connelly Defendants. (See Doc. 119-1, ¶¶ 17, 21.)3 The single
count contained in the proposed third-party complaint asserts Counsel was negligent
in their representation of Plaintiff, and in support thereof, Defendant Downey avers,
inter alia, as follows:
13.
[Plaintiff] retained [Counsel] to institute a breach of
contract claim against the Connelly Defendants and
breach of contract and negligence malpractice claims
against [Defendant] Downey.
*
*
*
16.
[Counsel] owed [Plaintiff] a duty to possess and
employ the skill and knowledge that ordinarily is
employed by a professional.
17.
[Counsel] failed to properly plead a breach of
contract claim on [Plaintiff]’s behalf, resulting in
[Plaintiff]’s breach of contract claim being
dismissed.
*
*
*
The court notes Defendant Downey’s motion, as originally filed, pleaded an alternative
basis for Counsel’s negligence, to wit, Counsel’s failure to appeal this court’s December 29, 2009 order
dismissing the claims against the Connelly Defendants. (Doc. 117-1, ¶ 20.) This alternative basis no
longer appears in the corrected motion. (See Doc. 119.)
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20.
If [Counsel] had properly plead[ed] [Plaintiff]’s
breach of contract claim against the Connelly
Defendants, and if [Plaintiff] had prevailed against
the Connelly Defendants, then the Connelly
Defendants would be solely liable to [Plaintiff].
21.
Accordingly, [Counsel]’s negligence was the
proximate cause of harm to [Plaintiff] and
[Defendant] Downey, was a substantial factor in
bringing about harm to [Plaintiff] and [Defendant]
Downey, and significantly increased the risk that
harm to [Plaintiff] and [Defendant] Downey would
occur.
22.
Accordingly, [Counsel] are liable to [Defendant]
Downey for Plaintiff’s claims against [Defendant]
Downey alleged in the Complaint.
(Doc. 110-1, ¶¶ 13, 16-17, 20-22.) Thus, Defendant Downey appears to allege
Counsel committed malpractice for their breach of the duty of care they owed to
Plaintiff, and seeks contribution from Counsel for any liability he may incur if he is
found to have committed malpractice. (Id. at ¶¶ 22-23.)
In support of his motion, Defendant Downey argues that his delay in
filing the motion is excusable because the basis for his claim against Counsel arises
from Plaintiff’s testimony during his deposition on September 5, 2013. (Doc. 120, p.
6 of 9.) The portion of the deposition cited in support of Defendant Downey’s claim
against Counsel is set forth in the proposed third-party complaint as follows:
Q:
Now, do you believe that you had a contract with the
Connelly firm to perform legal services?
A:
Yes.
*
*
7
*
Q:
And did you repeatedly inform the Connelly firm of
witnesses that would prove that you provided a full
and fair disclosure of your assets to Mrs. Knopick?
A:
Yes.
Q:
And the next part of that says that, “Attorneys Kadel
and Connelly failed to investigate these witnesses or
to call them at the August 2, 2004 hearing.” Do you
see that?
A:
Yes.
Q:
Okay. And was that true that Attorneys Kadel and
Connelly failed to investigate these witnesses or call
them at the August 2, 2004 hearing?
A:
I can’t attest to whether or not they investigated
them, but I know they didn’t show up at the hearing.
Q:
So it’s true that they failed to call those witnesses at
the August 20–, August 2, 2004 hearing?
A:
Yes. . . .
*
*
*
Q:
And as you – do you believe that it was a part of
your contract with the Connelly firm that they were
supposed to investigate the witnesses that you gave
them and call them at the August 2, 2004 hearing?
A:
Yes.
*
*
*
Q:
Do you believe that as part of the contract you told
someone at the Connelly firm about these witnesses
when you signed your agreement?
A:
Yes.
(Doc. 119-1, ¶ 11.) Essentially, Defendant Downey justifies the timing of his
attempt to implead Counsel by arguing it was first during Plaintiff’s deposition when
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he discovered that the Connelly Defendants breached Plaintiff’s specific instructions,
at which time he realized that there existed a basis for a breach of contract action
against the Connelly Defendants. (See Doc. 120, p. 5 of 9.) Defendant Downey
reasons that, because the deposition demonstrates a breach of contract action existed,
and because Counsel failed to adequately plead such a claim in this action, Counsel
was negligent in their representation of Plaintiff, while simultaneously allowing the
Connelly Defendants out of the case, effectively placing all liability, if any, on
Defendant Downey’s shoulders to bear alone.
Plaintiff filed a response in opposition on October 25, 2013, arguing
that the motion is grossly untimely, and that permitting Defendant Downey to
implead Counsel at this stage of the litigation would disrupt the proceedings and
prejudice Plaintiff. (Doc. 124.) Defendant Downey filed his reply on November 12,
2013.4 In his reply, Defendant Downey argues that Plaintiff’s deposition testimony
not only explained the specific terms of his contract with the Connelly Defendants
but also demonstrated the original agreement was modified orally. (See Doc. 127, p.
2 of 12.) Thus, the matter has been fully briefed and is ripe for the court’s
consideration.
II.
Legal Standard
Defendant Downey’s motion for leave to file a third-party complaint
invokes Federal Rule of Civil Procedure 14(a). Rule 14(a) provides that “[a]
defending party may, as third-party plaintiff, serve a summons and complaint on a
The court notes that Defendant Downey’s reply is untimely. See M.D. Pa. L.R. 7.7; Fed.
R. Civ. P. 6. Nevertheless, the court will overlook the delay in filing the reply, and consider the
arguments raised therein.
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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). Moreover, Local Rule 14.1 provides that:
A motion by a defendant for leave to join a third-party
defendant under Fed.R.Civ.P. 14(a) shall be made within
three (3) months after an order has been entered setting the
case for trial, or within six (6) months after the date of
service of the moving defendant’s answer to the complaint,
whichever shall first occur.
M.D. Pa. L.R. 14.1. However, Local Rule 14.3 permits the court, in its discretion, to
suspend the deadlines set forth in Local Rule 14.1 upon a showing of good cause.
See M.D. Pa. L.R. 14.3; see also M.D. Pa. L.R. 1.3 (stating that “[w]hen a judge of
this court issues any order in a specific case which is not consistent with these rules,
such order shall constitute a suspension of these rules for such case only and only to
the extent that it is inconsistent.”).
The purpose of Rule 14(a) is “to permit additional parties whose rights
may be affected by the decision in the original action to be joined and brought in so
as to expedite the final determination of the rights and liabilities of all of the
interested persons in one suit.” Naramanian v. Greyhound Lines, Inc., Civ. No. 07cv-4757, 2010 WL 4628096, *2 (E.D. Pa. Nov. 15, 2010) (quoting Glens Falls
Indem. Co. v. Atl. Bldg. Corp., 199 F.2d 60, 63 (4th Cir. 1952)). Because the Rule
also aims to reduce duplicative litigation, see Schwab v. Erie Lackawanna R.R. Co.,
438 F.2d 62, 67 (3d Cir. 1971), federal courts liberally grant leave to join third
parties in the interest of judicial economy, Gonzalez v. Angelus Sanitary Canning
Mach. Co., Civ. No. 09-cv-1455, 2010 WL 4514332, *2 (M.D. Pa. Nov. 2, 2010). In
order to utilize the procedure of Rule 14, a third-party plaintiff must demonstrate
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some substantive basis for its claim. Pitcavage v. Mastercraft Boat Co., 632 F.
Supp. 842, 845 (M.D. Pa. 1985). Moreover, the Third Circuit has held that:
A third-party claim may be asserted under Rule 14(a) only
when the third party’s liability is in some way dependent
on the outcome of the main claim or when the third party is
secondarily liable to defendant. If the claim is separate or
independent from the main action, impleader will be
denied.
FDIC v. Bathgate, 27 F.3d 850, 873 (3d Cir. 1994). Accordingly, in a diversity
action, the court must apply state law in order to determine if a third-party plaintiff
has raised a proper substantive basis for its claim. See Robbins v. Yamaha Motor
Corp., 98 F.R.D. 36, 38 (M.D. Pa. 1983) (citing Erie R.R. v. Tompkins, 304 U.S. 64
(1938)).
If there is a proper substantive basis for the filing of a third-party
complaint, the court exercises its discretion in determining whether it will permit the
filing of the third-party complaint. See Doland v. Berrios, Civ. No. 11-cv-1783,
2013 WL 3511421, *2 (M.D. Pa. July 11, 2013). In doing so, the court considers:
(1) the timeliness of the motion; (2) the probability of trial delay; (3) the possible
prejudice to the plaintiff; and (4) the complication of issues at trial. See Gonzalez,
2010 WL 4514332 at *2 (citing Schlegel v. Wilson-Cook Medical, Inc., Civ. No. 05cv-0660, 2007 WL 465528, *5 (M.D. Pa. Feb. 8, 2007); Con-Tech Sales Defined
Ben. Trust v. Cockerham, 715 F. Supp. 701, 704 (E.D. Pa. 1989)).
III.
Discussion
Defendant Downey argues that he should be permitted to file a third-
party complaint against Plaintiff’s current counsel because Counsel committed
malpractice by not properly prosecuting the action against the Connelly Defendants,
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and therefore, caused Defendant Downey to be solely liable to Plaintiff if ultimately
found liable at all. Defendant Downey’s substantive basis for the filing of a thirdparty complaint appears to be contribution.5 Plaintiff does not meaningfully
challenge whether Defendant Downey can assert such cause of action against
Counsel. (See generally Doc. 124.) The issue, therefore, is whether the court should
exercise its discretion in permitting Defendant Downey to file a third-party
complaint against Counsel. Upon consideration of the consequences impleading
Counsel would have on the four-year-old case, the court will deny Defendant
Downey’s motion for leave to file his third-party complaint.
Defendant Downey properly acknowledges the belated nature of his
request, but argues that his delay is excusable because he did not know of the
“specific terms of [Plaintiff’]’s alleged contract with the Connelly Defendants that
should have been plead[ed] by [Counsel] until [Plaintiff] testified at his deposition on
September 5, 2013.” (Doc. 120, p. 6-7 of 9 (emphasis in original).) Defendant
Downey further argues that Counsel will not suffer prejudice by the belated
impleader, because Counsel have been aware of their potential liability and that little
additional discovery would have to be conducted. (See id. at p. 6 of 9.) The court
finds this argument unpersuasive.
Each of the four factors weigh against granting Defendant Downey’s
motion. First, the motion is unquestionably untimely. The case was initiated on July
Pursuant to Pennsylvania law, a right to contribution arises only among joint tortfeasors,
i.e., “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.” See 42 Pa. Con. Stat. Ann. §
8322. Pennsylvania does not recognize a right to contribution in a breach of contract case. See Unique
Tech., Inc. v. Micro Stamping Corp., Civ. No. 02-cv-6649, 2003 WL 21652284, *3 (E.D. Pa. Apr. 15,
2013). Whether this affects Defendant Downey’s rights, if any, against Counsel is beyond the scope of
this memorandum.
5
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6, 2009, over four years ago. Pursuant to Local Rule 14.1, Defendant Downey was
required to file a motion seeking leave to file his third-party complaint by April 21,
2010.6 Defendant Downey’s October 11, 2013 motion was filed approximately
three-and-a-half years too late. Thus, this factor weighs against permitting the
belated impleader.
Second, permitting the requested impleader would most certainly cause
trial to be delayed. As stated, trial is set for May 5, 2014. In anticipation of that trial
term, the court set multiple deadlines, several of which will soon expire, including
the December 16, 2013 deadline for fact discovery. The court does not find
believable Defendant Downey’s assertion that “little – if any – additional discovery
will be required as a result of the joinder.” (Doc. 120, p. 8 of 9.) Indeed, this case
has already been subject to a significant amount of discovery, and the court cannot
assume Counsel will be satisfied with defending an action on the record as it
currently exists. To the contrary, Counsel, as a third-party defendant, would be not
only entitled to engage in necessary discovery, but also to file dispositive motions
and retain their own experts addressing whether their decisions fell below the
acceptable professional standard of care. Moreover, the third-party claim will
require discovery on whether there was an oral modification to the Plaintiff’s
contract with the Connelly Defendants. In any event, regardless of the necessity of
additional discovery, the inquiry focuses on the probability of a delay to trial. The
court is hard-pressed to conclude trial will not be delayed further by joining a party
As Plaintiff accurately identifies, Defendant Downey’s request is late even using the later
date contemplated by Local Rule 14.1. The court most recently set the matter for trial in its June 11,
2013 case management order. Thus, Defendant Downey’s motion was due on September 11, 2013. The
motion, filed on October 11, 2013, was still a month too late even if the court utilized the later date.
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to the action at this stage of the litigation. Thus, this factor weighs against permitting
the belated impleader.
Third, Plaintiff will most certainly suffer substantial prejudice if the
court permits Defendant Downy to implead Counsel. In his brief in support,
Defendant Downey fails to address the potential prejudice Plaintiff will suffer if the
court were to grant the motion.7 Plaintiff will undoubtedly suffer prejudice, as he
will be forced to retain new counsel in this four-year-old case.8 Counsel have
represented Plaintiff throughout this litigation, and are presumably intimately
familiar with the proceedings. Forcing Plaintiff to retain new counsel, who will
necessarily be required to get up to speed in a short amount of time as not to delay
trial, would be both unfair and extremely costly to Plaintiff. Moreover, the events at
the heart of this action occurred over nine years ago. Certainly, as time progresses,
memories continually fade (see, e.g., Doc. 120-1, p. 6 of 7), and witnesses, such as
the attorney who drafted the PSA, may become unavailable. The court will not
increase the likelihood that Plaintiff’s presentation of his case will be further
impaired. Thus, this factor weighs against permitting the belated impleader.
Fourth, the case will become significantly more complex if the court
permits Defendant Downey to implead Counsel. This is already a case within a case,
The court notes Defendant Downey argues Counsel will not suffer prejudice because
“they have presumably been aware of their own potential liability long before their client’s recent
deposition testimony based on their privileged communications with him.” (Doc. 120, p. 8 of 9.) The
court need not address the merits of this statement, as it entirely fails to address the proper inquiry, i.e.,
the probability the plaintiff will suffer prejudice.
7
Defendant Downey argues in his reply that Plaintiff will be required to obtain new counsel
because a conflict-of-interest exists regardless of whether Counsel are impleaded. Whether a conflictof-interest exists between Counsel and Plaintiff is beyond the scope of this memorandum, and in any
event, not dispositive to the court’s disposition.
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whereby Plaintiff will have to necessarily prove that the Connelly Defendants
committed malpractice in their representing him in the PSA proceedings, and that
Defendant Downey committed malpractice by failing to properly prosecute the
action against the Connelly Defendants. Granting the relief Defendant Downey
requests would necessarily require the trier of fact to assess another level of
representation, and require Plaintiff to prove a case within a case within a case.
Moreover, in his reply, Defendant Downey argues Plaintiff’s deposition testimony
demonstrated that the contract between Plaintiff and the written Connelly Defendants
was orally modified. While the court refrains from considering the merits of this
theory, it notes that, at the very least, permitting the impleader of Counsel may
require an additional determination of fact regarding whether the written contract
was, in fact, modified to include these specific instructions. Such a determination
would undoubtedly require another factual finding for the trier of fact to consider,
therefore complicating the issues involved. Thus, this factor weighs against
permitting the belated impleader.
Although the court will stop short of characterizing Defendant
Downey’s most recent motion as mendacious, the court would be remiss not to
express its skepticism regarding Defendant Downey’s asserted justification for his
significant delay in seeking to implead Counsel. As stated, Defendant Downey
argues the delay should be excused, because he first learned a breach of contract
claim against the Connelly Defendants may have existed (and accordingly, first
realized Counsel failed to properly assert the same) during Plaintiff’s deposition on
September 5, 2013. This representation is belied by the record. Defendant Downey
knew of these alleged specific instructions from Plaintiff and the Connelly
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Defendants well before Plaintiff’s deposition testimony. Indeed, Defendant Downey
testified during his deposition on November 26, 2012, that, “in exchange for
[Plaintiff] paying [the Connelly Defendants] money to represent [him], they had
agreed that they would introduce evidence he was going to give them.”9 (Doc. 1241, p. 104 of 219.) Furthermore, a letter sent on February 25, 2008, from Defendant
Downey to Plaintiff clearly stated Defendant Downey’s opinion that he was “limited
to a claim for breach of contract.” (Doc. 1, Ex. F; see also Doc. 124, p. 116 of
219.)10 Moreover, Defendant Downey knew his basis – and his intention to bring –
the third-party claim against Counsel well before October 11, 2013. In the parties’
joint case management plan, filed July 22, 2011, Defendant Downey represented that
he:
[I]ntends to cross claim against [Counsel] for legal
malpractice, under a breach of contract theory as a result of
[Counsel] having failed to:
a. Properly plead a cause of action for legal
malpractice;
b. Failure to file an amended Complaint after being
served with [the Connelly Defendant]’s Motion to
Dismiss;
Defendant Downey’s retort that he prefaced his recollection during his deposition with his
uncertainty does not change that he understood the contract to include, “in exchange for paying them
money,” the Connelly Defendants’ agreed to call certain witnesses on Plaintiff’s behalf.” (Doc. 124-1,
p. 104 of 219.)
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10
During his deposition, Defendant Downey stated:
Well, [Plaintiff] and I had discussed suing in contract for malpractice multiple
times. And, in fact sometime around the time of this letter, I even sent him a
draft complaint with factual allegations alleging breach of contract.
(Doc. 124, p. 116 of 219 (emphasis supplied).)
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c. Failure to timely perfect an appeal of this
honorable court’s dismissal of Plaintiff’s claims
against [the Connelly Defendants].
(Doc. 41, ¶ 1.80.) For these reasons, the court is disinclined to accept Defendant
Downey’s justification that he first learned of the specific terms of Plaintiff’s
contract with the Connelly Defendants on September 5, 2013. (Contra Doc. 120, p.
8 of 9.) Defendant Downey’s delay is not excusable.11
IV.
Conclusion
Defendant Downey’s motion seeking leave to file a third-party
complaint against Plaintiff’s counsel is well-beyond the deadlines set forth in Federal
Rule of Civil Procedure 14 and Local Rule 14.1. Because the court finds that
Defendant Downey’s motion is extremely untimely, that impleading Counsel at this
stage of the litigation would substantially prejudice Plaintiff, delay trial, and
complicate issues, and that Defendant Downey’s excuse for the delay is inadequate,
the court concludes that Defendant Downey has failed to demonstrate good cause to
permit the belated impleader. Accordingly, Defendant Downey’s motion for leave to
file a third-party complaint will be denied.
An appropriate order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: November 12, 2013.
The court misses the significance of Defendant Downey’s inclusion of an unrelated
attorney’s response to Counsel’s allegedly posting on an internet legal bulletin board related to the case.
(See Doc. 127, p. 6 -7 of 12; Doc. 127-1.) The pages allotted by Local Rule 7.7 would be better suited
by either focusing on the pertinent arguments or omitting such pestiferous material in its entirety.
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