Gamble v. Treetop Development, LLC et al
MEMORANDUM (Order to follow as separate docket entry) re 12 MOTION for Leave to File Third Party Complaint filed by The Aspen Companies, LLC, Treetop Development, LLC. Signed by Honorable Robert D. Mariani on 8/7/17. (jam)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TREETOP DEVELOPMENT, LLC, et al.
Presently before the Court is the "Motion for Leave to File a Third-Party Complaint of
Defendants, Treetop Development, LLC and the Aspen Companies, LLC Pursuant to
F.R.C.P. 14(a)" (Doc. 12). Plaintiff timely filed a Brief in Opposition to Defendants' Motion
(Doc. 14) to which Defendants filed a Reply Brief (Doc. 15). The matter having been fully
briefed, it is now ripe for resolution. For the reasons that follow, the Court will grant
On September 12, 2016, Plaintiff, Kody Gamble, filed a Complaint against
Defendants Treetop Development, LLC, and The Aspen Companies, LLC in the Court of
Common Pleas of Luzerne County. (Doc. 1-1 ). Defendants thereafter removed the action
to this Court on the basis of diversity of citizenship on September 27, 2016 (Doc. 1) and
filed an Answer to the Complaint on October 11, 2016 (Doc. 3).
Plaintiffs Complaint alleges that on September 14, 2014, while visiting a friend at
Sherman Hills, Gamble was shot by an "unknown person" (Doc. 1-1, at~~ 10, 11 ). Plaintiff
further alleges that Defendants owned Sherman Hills at the relevant time. (Id.
6). As a
result, Plaintiff's Complaint sets forth one count of Negligence against the defendants,
alleging that the injuries sustained by Plaintiff "are the direct and proximate result of the
carelessness and negligence of the Defendants." (Id. at ml 26-29).
Defendants Treetop Development, LLC and the Aspen Companies, LLC, now request
leave to file a Third-Party Complaint pursuant to Federal Rule of Civil Procedure 14 against
LeQuan Graham ''who, upon information and belief, is the person responsible for shooting
plaintiff Kody Gamble on September 14, 2014, the incident giving rise to plaintiff's cause of
action." (Doc. 12).
The purpose of Federal Rule of Civil Procedure 14 is to reduce duplicative litigation
and the multiplicity of actions. Therefore, courts liberally construe Rule 14 and, in the
interest of judicial economy, should liberally grant motions for leave to join third parties. See
Gonzalez v. Angelus Sanitary Canning Mach. Co., 2010 WL 4514332, at* 2 (M.D. Pa.
2010); Con-Tech Sales Defined Ben. Trust v. Cockerham, 715 F.Supp. 701, 703-704 (E.D.
Pursuant to Federal Rule of Civil Procedure 14,
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.
But 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.
Fed. R. Civ. P. 14(a)(1). However,
[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) (quoting C.A. Wright, A. Miller, M.K.
Kane, Federal Practice and Procedure, Vol. 6, § 1446, at 355-58 (1990)). Thus,
"[i]mpleader under Rule 14(a) is ... merely a procedural device for asserting a claim, and
the legal ground for the claim must be found in the applicable substantive law, whether
federal or state." 1 Moore's Federal Rules Pamphlet§ 14.3 (Matthew Bender) (2017).
Upon demonstrating a substantive basis for the third-party claim, when determining whether
to permit the joinder, federal courts generally consider "(1) the possibility [oij prejudice to the
plaintiff; (2) the complication of issues at trial; (3) the probability of trial delay, and (4) the
timeliness of the motion." Gonzalez, 2010 WL 4514332, at* 2 (collecting cases).
The Court first turns to whether there is a substantive basis for the defendants'
claims against LeQuan Graham. Defendants' Third Party Complaint alleges that the
"negligent, reckless willful and wanton conduct" of Graham when he shot Gamble and failed
to seek medical attention or assistance for Gamble "was the sole and exclusive cause of
[Gamble's] claimed physical and emotional injuries and damages that are being claimed in
this case by the plaintiff." (Doc. 12, Ex. 1, at~~ 9-10). Defendants further state that
If the plaintiff, Kody Gamble, is able to prove a prima facia [sic] case at the
time of trial against original defendants, Third-Party Plaintiffs, Treetop
Development, LLC, and The Aspen Companies, LLC, then Treetop
Development, LLC, and The Aspen Companies, LLC, believes and therefore
avers that Third Party defendant, LeQuan Graham, is solely liable to the
plaintiff, Kody Gamble, jointly or severely [sic] liable, or liable over to the
original defendants, Treetop Development, LLC, and The Aspen Companies,
LLC, for contribution and/or indemnification.
Here, because Pennsylvania law governs in this action, the Court must apply state
law in determining the substantive basis for Defendants' claims. A third party complaint
"must set forth a claim of secondary liability such that, if the third party plaintiff is found
liable, the third party defendant will be liable to him/her under a theory of indemnification,
contribution, or some other theory of derivative liability recognized by the relevant
substantive law." Toberman v. Copas, 800 F.Supp. 1239, 1242 (M.D.Pa. 1992)(emphasis
in original). Under Pennsylvania law, "[t]he right of contribution exists among joint tortfeasors." 42 Pa. C.S.A. § 8324(a). The term "joint tort-feasors" is defined as "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. C.S.A. §
8322. See a/so, Ties/er v. Martin Paint Stores, Inc., 76 FRO 640 (E.D. Pa. 1977)("The right
of contribution among joint tortfeasors is one of substantive law."); Scott v. Walter Kidde
Portable Equip., Inc., 2002 WL 1880521, *2 (E.D.Pa. 2002) ("the basis for third-party liability
is generally either contribution or indemnity") (citing Anderson v. Dreibelbis, 104 F. R. D. 415,
416 (E.D.Pa. 1984), aff'd, 787 F.2d 580 (3d Cir. 1986)).
Although Plaintiff argues that "impleader is not proper when the third-party plaintiff
alleges only that the third-party defendant is solely liable to the plaintiff', citing to Ties/er v.
Martin Paint Stores, Inc., 76 F.R.D. 640 (E.D. Pa. 1977), Plaintiff misinterprets both the case
and Defendants' claims. In Ties/er, the Court explained:
lmpleader is proper and the claim not separate or independent if the third
party's liability is in some way derivative of the outcome of the main claim in
that the defendant seeks to hold the third party secondarily liable to him or to
pass on to the third party all or part of the liability asserted against the
defendant. [United States v. Joe Grasso &Son, Inc., 380 F.2d 749, 751 (5th
Cir. 1967)]. It is immaterial that the liability of the third party is not identical to
or rests on a different theory than that underlying plaintiffs claim. Southern
Milling Co. v. United States, 270 F.2d 80 (5th Cir. 1959); Lee's Inc. v.
Transcontinental Underwriters, Inc., 9 F.R.D. 470 (D.Md. 1949).
Thus, it is not permissible to bring in a person as a third-party defendant
simply because he is or may be liable to the plaintiff. National Fire Ins. Co. of
Hartford v. Daniel J. Keating Co., 35 F.R.D. 137 (W.D.Pa.1964). Third party
practice is permitted only where the defendant can show that if he is found
liable to plaintiff, the third party will be liable to him. Index Fund, Inc. v.
Hagopian, 417 F.Supp. 738, 743 (S.D.N.Y.1976). However, the Rule is not
limited to situations in which the third-party defendant would automatically be
liable for all or part of plaintiffs claim. Stiber v. United States, 60 F.R.D. 668
(E.D.Pa. 1973); McGee v. United States, 62 F.R.D. 205 (E.D.Pa. 1973).
Rather, the complaint should be allowed to stand, even if recovery is not
certain, if under some construction of facts which might be adduced at trial,
recovery would be possible. Stiber, supra at 669.
Id. at 642-643.
Here, Defendants' Third Party Complaint is premised on a theory of contribution and
indemnification, which forms a proper substantive basis for Defendants' third-party
complaint. Just as in Ties/er, "[t]he defendant[s] claim that the third party is a joint
tortfeasor and is jointly or severally liable in tort for the same accident and injury to the
plaintiff' 76 F.R.D. at 643. Although "it is not permissible to bring in a person as a thirdparty defendant simply because he is or may be liable to the plaintiff', id. at 642-643,
Defendants' Third Party Complaint is not limited to a claim that Graham would be solely
liable to Graham. Instead, Defendants' Complaint further alleges that, if Defendants are
found liable to Gamble, Graham will be jointly or severally liable to Defendants.
Therefore, the defendants have properly asserted a substantive basis for their claim.
The Court thus turns to the four factors generally considered by federal courts when
deciding whether to permit the joinder of a third-party defendant pursuant to Rule 14.
In opposing Defendants' motion, Plaintiff inexplicably fails to address three of the four
factors, including (1) the possibility of prejudice to the plaintiff; (2) the complication of issues
at trial; and (3) the probability of trial delay. (See generally, Doc. 14). Instead, Plaintiff
focuses exclusively on the fourth factor, i.e. the timeliness of the motion. (Id. at 3-4).
Nonetheless, the first three factors clearly weigh in favor of granting Defendants'
motion. This action is less than a year old, no case management deadline has expired (see
Doc. 18), and a trial date has yet to be scheduled. Furthermore, impleading Graham will
help bring all relevant facts to light and provide a more complete picture both to the Court
and to the trier of fact should this action reach the trial stage. Allowing Defendants to
implead Graham and state a claim for indemnification and contribution will, in no way,
prejudice plaintiff, delay trial in this matter, or complicate issues at trial, nor does Plaintiff
attempt to argue otherwise.
With respect to timeliness of a Rule 14 motion, 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. Fed. R. Civ. P. 14(a)(1). Pursuant to the Local Rules:
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. Local Rule 14.1.
Here, Defendants have filed a motion for leave to file a third-party complaint, in
conformity with Fed. R. Civ. P. 14, and Plaintiff admits that the Defendants' motion "is timely
pursuant to Local Rule 14.1" (Doc. 14, at 4). However, Plaintiff sets forth two arguments with
respect to why this Court should not consider Defendants' motion to be timely.
Plaintiff asserts that "the Defendants knew, or should have known, about the identity
of the individual who shot the Plaintiff around the time of the incident, i.e. September of
2014 [and w]aiting almost two-and-a-half years after to assert claims against Mr. Graham is
cause enough to deny Defendants' Motion." (Doc. 14, at 4). Plaintiff's argument
demonstrates a complete lack of candor to this Court. First, Plaintiff's Complaint, filed on
September 12, 2016, approximately two years after the shooting at issue, alleges that
Gamble was shot by an "unknown person ('Thug')." (Doc. 1-1, at ~ 11). If Plaintiff himself
was unaware of "Thug's" identity in September of 2016, there is no reason to believe that
Defendants knew, or should have known, that "Thug" was Graham at that time. Second, in
the case management plan, filed by the parties on December 28, 2016, the parties agreed
that "Plaintiff claims that he does not know who shot him", and Defendants specifically
stated that "[i]f the intentional shooter is identified during the course of discovery in this
matter, defendant intends to join him." (See Doc. 8, at§§ 1.2, 1.6). When the issue of the
defendants possibly joining the intentional shooter was raised during the case management
conference with this Court on January 5, 2017, Plaintiff did not express opposition or
suggest that the identity of the shooter was already known. Instead, counsel for the parties
informed the Court at that time that they had agreed not to set dates for amending the
pleadings or joining additional parties because the defendants were in the process of
attempting to ascertain the identity of the "intentional shooter" and that the parties were
unsure when they may obtain this information. For Plaintiff to now assert that "the
Defendants knew, or should have known, about the identity of the individual who shot the
Plaintiff around the time of the incident, i.e. September of 2014" is disingenuous and defies
common sense. Plaintiff himself apparently did not even know the identity of his own
shooter until sometime after January, 2017.
Plaintiffs second argument with respect to timeliness is equally without merit.
Plaintiff asserts that "[t]he statute of limitations on Plaintiffs personal injury claim expired on
September 14, 2016" and therefore Defendants should "be barred from joining Mr. Graham
as a third-party defendant in this matter." (Doc. 14, at 4). As explained above, Defendants'
Third Party Complaint in this matter is premised on a theory of contribution and
indemnification. Defendants admit that they "are not asserting a negligence action against
proposed Third-Party Defendant, LeQuan Graham, but an action sounding in contribution
and/or indemnification." (Doc. 15, at 3). Therefore, the state law two-year statute of
limitations for personal injury claims is inapplicable in the present case. Rather, "[i]t is longsettled that claims for indemnification or contribution do not arise until the party seeking
contribution or indemnity has had a judgment rendered against it or upon payment of a
claim." Site-Blauvelt Eng'rs, Inc. v. First Union Corp., 153 F.Supp.2d 707, 710 (E.D.Pa.
2001) (collecting cases). See also, Pennsylvania Nat. Mut. Gas. Ins. Co. v. Nicholson
Const. Co., 542 A.2d 123, 126 (Pa. Super. Ct. 1988) ("[l]n an action for contribution, the
applicable limitation period is six years commencing from the entry of judgment against the
joint tortfeasors."). Because no judgment has been entered in this action and there has
been no payment of a claim yet, Defendants' claims have not accrued and are clearly wellwithin the applicable statute of limitations.
For the foregoing reasons, the Court will grant the "Motion for Leave to File a ThirdParty Complaint of Defendants, Treetop Development, LLC and the Aspen Companies, LLC
Pursuant to F.R.C.P. 14(a)" (Doc. 12). Defendants' Third-Party Complaint demonstrates a
substantive basis for their third-party claim, and the four factors generally considered by
federal courts when determining whether to grant a motion for leave to join third parties
each weigh in favor of the defendants.
A separate order follows.
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