Bowman v. Western Rim Property Services, Inc. et al

Filing 53

MEMORANDUM OPINION AND ORDER - It is therefore ORDERED that Defendants Western Rim Property Services, Inc., Newport Classic Homes, L.P., and Western Rim Investors 2011-6, L.P.s Motion to Join N.T.S. Architects & Planners, Inc. as an Additional Defendant Under Rule 19, or alternatively, Rule 20 (Dkt. #27) is hereby DENIED. Signed by Judge Amos L. Mazzant, III on 2/9/2016. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

DANA BOWMAN
V.
WESTERN RIM PROPERTY
SERVICES, INC., NEWPORT CLASSIC
HOMES, L.P., WESTERN RIM
INVESTORS 2011-6, L.P., and
BRE MF FRISCO, LLC

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CASE NO. 4:14cv672
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants Western Rim Property Services, Inc., Newport
Classic Homes, L.P., and Western Rim Investors 2011-6, L.P.’s Motion to Join N.T.S. Architects
& Planners, Inc. (“NTS”) as an Additional Defendant Under Rule 19, or alternatively, Rule 20 (Dkt.
#27). Having considered the relevant pleadings, the Court is of the opinion that the motion should
be denied.
On October 22, 2014, the Plaintiff filed this case against Defendants Western Rim Property
Services, Inc., Newport Classic Homes, L.P., and Western Rim Investors 2011-6, L.P. (The “Western
Rim Defendants”). Plaintiff alleges that the Western Rim Defendants were involved in the design
and construction of an apartment complex known as the “Estates of Frisco,” located at 1801
McCord, Frisco, Texas 75033 (the “Property”), that does not comply with the accessibility
requirements under the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as amended by
the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601-3619 (the “FHA”). On June 24, 2015,
Plaintiff amended his complaint to join BRE MF Frisco, LLC, the current owner of the Property.
On November 16, 2015, the Western Rim Defendants filed this motion to join NTS as a party
involved in the design and construction of the Property. On December 14, 2015, Plaintiff filed a
response (Dkt. #37). No reply was filed.

The Court must first determine under Federal Rule Civil Procedure 19(a) whether a person
or entity should be joined to the lawsuit. “If joinder is warranted, then the person will be brought
into the lawsuit. But if such joinder would destroy the courts jurisdiction, then the court must
determine under Rule 19(b) whether to press forward without the person or to dismiss the litigation.”
HS Res., Inc. v. Wingate, 327 F.3d 432, 439 (5th Cir. 2003); see August v. Boyd Gaming Corp., 135
F. App’x 731, 732 (5th Cir. 2005). In this case, the burden is on the Western Rim Defendants, as
the movants, to show that NTS is a necessary and required party. See Payan v. Cont’l Tire N. Am.,
Inc., 232 F.R.D. 587, 589 (S.D. Tex. 2005); Hood ex rel. Miss. v. City of Memphis, Tenn., 570 F.3d
625, 628 (5th Cir. 2009).
Rule 19(a) provides:
A person who is subject to service of process and whose joinder will not deprive the court
of subject-matter jurisdiction must be joined as a party if: (A) in that person's absence, the
court cannot accord complete relief among existing parties; or (B) that person claims an
interest relating to the subject of the action and is so situated that disposing of the action in
the person's absence may: (I) as a practical matter impair or impede the person's ability to
protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations because of the interest.
FED. R. CIV. P. 19(a).
The Western Rim Defendants assert that NTS should be joined as a defendant in this matter
because it participated in the design and construction of the Property. NTS was the architecture firm
on the Property, and the Western Rim Defendants seek contribution from NTS for its actions if the
design and construction of the Property is proven non-compliant with the FHA and damages
resulting therefrom.
It is well-settled that joint tortfeasors are not considered “required” or indispensable parties
under Rule 19. Nottingham v. Gen. Am. Commc’ns Corp., 811 F.2d 873, 880 (5th Cir. 1987).
Plaintiff is not required to name all possible joint tortfeasors in a single action. See Temple v.

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Synthes Corp., 498 U.S. 5, 7 (1990). A joint tortfeasor is merely a permissive party. Id. (citation
omitted). The fact that a defendant may be able to seek indemnity or contribution from NTS if
Plaintiff prevails does not establish the first prong of Rule 19. Each defendant has a non-delegable
duty under the FHA; other participants need not be joined in order to obtain full relief.
Because each participant has a non-delegable duty, a plaintiff need not join each subcontractor of
the builder. The Western Rim Defendants allege that they contracted with NTS to design the
Property and, as such, they can bring a claim directly against NTS for breach of contract or other
duties. The Western Rim Defendants have cited no authority requiring joinder of all participants in
an FHA design and construction case. The Western Rim Defendants have failed to carry their
burden under Rule 19.
Alternatively, the Western Rim Defendants seek joinder of NTS under Federal Rule Civil
Procedure 20. Rule 20(a)(2) allows for permissive joinder of defendants if “any right to relief is
asserted against them jointly, severally, or in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences; and . . . any question of law or fact
common to all defendants will arise in the action.” FED. R. CIV. P. 20(a)(2). “‘[A] defendant can
not use rule 20 to join a person as an additional defendant.’” United States v. Dawn Props., Inc., 64
F. Supp. 3d 955, 964 (S.D. Miss. 2014) (quoting Hefley v. Textron, Inc., 713 F.2d 1487, 1499 (10th
Cir. 1983)); see also Conceal City, L.L.C. v. Looper Law Enf’t, LLC, 917 F. Supp. 2d 611, 623 (N.D.
Tex. 2013). The permissive joinder of Rule 20 allows a plaintiff to decide who shall be parties to
a lawsuit. A defendant has no right to demand permissive joinder of an absent person as a defendant.
Thus, the request to add NTS pursuant to Rule 20 is denied.
It is therefore ORDERED that Defendants Western Rim Property Services, Inc., Newport
Classic Homes, L.P., and Western Rim Investors 2011-6, L.P.’s Motion to Join N.T.S. Architects

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& Planners, Inc. as an Additional Defendant Under Rule 19, or alternatively, Rule 20 (Dkt. #27) is
hereby DENIED.

SIGNED this 9th day of February, 2016.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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