Webber, LLC et al v. Symons Corporation et al

Filing 84

Memorandum Opinion and Order granting motion to designate Texas Prestressed as a responsible third party is granted; court deems that such designation has occurred. (Ordered by Judge John McBryde on 7/3/2013) (wrb)

U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

IN THE UNITED STATES DISTRIC COURT
NORTHERN DISTRICT OF TE AS
FORT WORTH DIVISION

WEBBER, LLC, ET AL.,
Plaintiffs,

vs.
SYMONS CORPORATION, ET AL.,
Defendants.

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FILED

JUL -3 2Gl3

CLERK, U.S. DISTRICT COURT

By _ _-=---,---Deputy

NO. 4:12-CV-181-A

MEMORANDUM OPINION
and
ORDER
Before the court for decision is the motion of defendant
Dayton Superior Corporation ("Dayton") for leave to designate
Texas Prestressed Concrete, Inc.
responsible third party.

("Texas Prestressed") as a

After having considered such motion,

the objection thereto of plaintiffs, Webber, LLC ("Webber") and
Arch Insurance Company, as subrogee of Juan Rueda and as subrogee
of Manuel Patlan ("Arch"), Dayton's response to the objection,
and pertinent legal authorities, the court has concluded that
Dayton's motion for leave should be granted and that Texas
Prestressed should be designated in this action as a responsible
third party as contemplated by section 33.004 of the Texas civil
Practice and Remedies Code.

I .

Pertinent Parts of Section 33.004
The parts of section 33.004 that are pertinent to Dayton's
motion and plaintiffs' opposition are as follows:
(a)
A defendant may seek to designate a person as
a responsible third party by filing a motion for leave
to designate that person as a responsible third party.
The motion must be filed on or before the 60th day
before the trial date unless the court finds good cause
to allow the motion to be filed at a later date.

(d) A defendant may not designate a person as a
responsible third party with respect to a claimant's
cause of action after the applicable limitations period
on the cause of action has expired with respect to the
responsible third party if the defendant has failed to
comply with its obligations, if any, to timely disclose
that the person may be designated as a responsible
third party under the Texas Rules of Civil Procedure.

(g)
If an objection to the motion for leave is
timely filed, the court shall grant leave to designate
the person as a responsible third party unless the
objecting party establishes:
(1)
that the defendant did not plead
sufficient facts concerning the alleged
responsibility of the person to satisfy the
pleading requirement of the Texas Rules of civil
Procedure; and
(2)
After having been granted leave to
replead, the defendant failed to plead sufficient
facts concerning the alleged responsibility of the
person to satisfy the pleading requirements of the
Texas Rules of Civil Procedure.

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(h)
By granting a motion for leave to designate a
person as a responsible third party, the person named
in the motion is designated as a responsible third
party for purposes of this chapter without further
action by the court or any party.
Tex. Civ. Prac.

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Rem. Code Ann.§§ 33.004(a),

(d),

(g), and (h).

II.

The Motion for Leave
Plaintiffs alleged in their complaint that Dayton has
liability to them for damages arising from two incidents in which
a steel hanger supplied by Dayton broke during the construction
by Webber of a tollway.

In each instance, when the steel hanger

broke one of Webber's employees fell to the ground and was
injured.

Arch seeks reimbursement for the workers' compensation

benefits it provided to the injured employees, and Webber seeks
damages it alleges it incurred in the construction project as a
result of the two incidents.
Dayton alleged in its motion for leave that Texas
Prestressed, as a subcontractor of Webber, was responsible for
embedding the hangers Dayton supplied into the concrete beams in
which the hangers were being used when the incidents occurred and
that the process used by Texas Prestressed in causing the hangers
to be embedded into the concrete beams was faulty and was a
contributing cause to the fracture of the hangers involved in the
two incidents.
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Dayton noted that it satisfied the time element of section
33.004(a) by filing its motion more than sixty days before the
trial date in this action.

Dayton has set forth in its motion

sufficient facts to demonstrate that, if true, the actions and/or
omissions of Texas Prestressed caused or contributed to cause the
two incidents in question.
III.
Plaintiffs' Objection to Dayton's Motion
Plaintiffs complain, without supporting legal authority,
that Dayton's initial disclosures pursuant to Rule 26(a) (1) of
the Federal Rules of civil Procedure, while disclosing Texas
Prestressed as having knowledge regarding the embedding of the
hangers into the beams, failed to disclose an intent to designate
Texas Prestressed as potential responsible third party.

Included

in plaintiffs' response is an argument, again with no supporting
legal authority, that a designation of an entity as a responsible
third party cannot be made after limitations has expired.
IV.
Analysis
Section 33.004 is substantive in nature, and is not a mere
procedural joinder rule, with the consequence that it is to be
given effect in an action pending in federal court.

The court's

reading of section 33.004(d) is that a defendant may designate a
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person as a responsible third party after the applicable
limitations period on the cause of action has expired with
respect to the responsible third party unless the defendant "has
failed to comply with its obligations, if any, to timely disclose
that the person may be designated as a responsible third party
under the Texas Rules of Civil Procedure."
Rem. Code Ann.

§

33.004(d).

Tex. Civ. Prac. &

So far as the court can determine,

the only rules in the Texas Rules of Civil Procedure to which the
statute could have reference are Rules 194.2(1) and 194.3.

Rule

194.2(1) states in pertinent part that:
A party may request disclosure of any or all of
the following:
(1)
the name, address, and telephone number
of any person who may be designated as a
responsible third party.
Tex. R. civ. P. 194.2(1).

In pertinent part, Rule 194.3 requires

the responding party to serve a written response on the
requesting party within thirty days after the service of the
request.
A plausible argument can be made that the Texas rules of
procedure mentioned above are not applicable in this federal
court litigation, with the consequence that Dayton cannot be
deemed to have failed to comply with any obligation of disclosure
under the Texas Rules of Civil Procedure because it had no such

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obligation.

An alternative position would be that for the

limited purpose of section 33.004(b) the Texas rules of procedure
are applicable in federal court litigation.

Even if that were

so, Dayton would have had no disclosure obligation because, so
far as the court knows, plaintiffs did not request disclosure
pertaining to a person who Dayton may designate as a responsible
third party.

Thus, no matter how the matter is viewed, Dayton is

not prohibited by section 33.004(d) from designating a person as
a responsible third party after the applicable limitations period
on the cause of action has expired with respect to the
responsible third party.
For the reasons given above, the court is not persuaded that
there is any reason why Dayton should not be permitted to
designate Texas Prestressed as a responsible third party in this
action.

v.
Order
Therefore,
The court ORDERS that Dayton's motion to designate Texas
Prestressed as a responsible third party be, and is hereby,
granted, and the court deems that such a

desi~nation

occurred.
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SIGNED July 3, 2013.

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