Nunez v. City of Corpus Christi, Texas et al

Filing 41

***PLEASE DISREGARD - DOCKETED IN ERROR*** ORDER granting 26 Motion for Leave to File.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, ) Modified on 1/15/2013 (lcayce, ).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
DAVID NUNEZ,

§
§
Plaintiff,
§
VS.
§ CIVIL ACTION NO. 2:12-CV-00092
§
CITY OF CORPUS CHRISTI, TEXAS, et §
al,
§
§
Defendants.
§
ORDER
Before the Court is the Motion for Leave to File Third Party Complaint against
Manuel Davila, IV filed by William Hobbs (D.E. 27). This is an action for alleged
assault and, under 42 U.S.C. § 1983, for excessive force against Corpus Christi Police
Officer William Hobbs (Hobbs) as well as Hobbs’ employer, the City of Corpus Christi
(Corpus Christi). Plaintiff, David Nuñez (Nuñez), alleges that he was leaving the scene
of an argument in a car driven by Manuel Davila (Davila) when Hobbs discharged his
weapon into the vehicle, injuring Nuñez. Hobbs seeks to add Davila as a third party
defendant. For the reasons set out below, the Motion (D.E. 27) is GRANTED.
According to Fed. R. Civ. P. 14(a)(1), a defending party may bring in as a third
party defendant any party “who is or may be liable to it for all or part of the claim against
it.” The timing of joinder and the managing of the resulting trial (such as striking joinder,
severing claims, or trying issues separately) is permissive and entrusted to the court’s

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discretion.1 See generally, H. L. Peterson Co. v. Applewhite, 383 F.2d 430, 433 (5th Cir.
1967). Defendant Hobbs has sought to join Davila within the time set by the Court’s
Scheduling Order. D.E. 15.
The only question presented by the rule and the parties’ position on the matter is
whether Davila can be liable to Hobbs for the claims asserted by Nuñez. If either of
those claims (assault or excessive force) triggers the right to join, joinder is appropriate.
A. The Texas Proportionate Responsibility Act Applies
to a State Claim for Assault in Federal Court.
Generally speaking, Chapter 33, the Texas Proportionate Liability Act, applies to
all torts governed by Texas law, including those tried in federal courts. Tex. Civ. Prac. &
Rem.Code § 33.002; In re Enron Corp. Securities, Derivative & ERISA Litigation, 623 F.
Supp. 2d 798, 832 (S.D. Tex. 2009); JCW Electronics, Inc. v. Garza, 257 S.W.3d 701,
704–06 (Tex. 2008). Because excessive force claims are federal claims, they are not
Texas torts and are not relevant to the present analysis. For our purposes then, the
question is whether the assault claim is an exception to the torts covered by Chapter 33.
Nuñez argues that assault is an intentional tort that is not within the ambit of the
proportionate liability statute. Hobbs argues that the assault claim does not require proof
of specific intent and that intentional torts are not exempt from Chapter 33. The Texas
Supreme Court has decided this issue, holding that Chapter 33 applies to “all” torts and
that a previous general exception for intentional torts was removed by the legislature in

1

The Court reserves for decision at an appropriate time what measures, if any, are required to avoid prejudice
alleged in Plaintiff’s Response.

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1995. JCW, supra at 704. That court refused to imply any residual exception arising
from the manner in which the legislature acted.
Since JCW, the Texas legislature has not added a general exception for intentional
torts. Instead, § 33.002(c) currently contains specific itemized exclusions. “Intentional
torts” are not among them. None of the express exclusions apply here. Therefore,
without deciding whether the assault claim in this case states an “intentional tort,” the
Court rejects Nuñez’s theory that his assault claim is exempted from the proportionate
liability statute.
B. The Texas Proportionate Liability Statute Grants
Rights of Contribution to the Defendant.
Pursuant to § 33.013, “a liable defendant is liable to a claimant only for the
percentage of the damages found by the trier of fact equal to that defendant's percentage
of responsibility with respect to the personal injury . . . for which the damages are
allowed.” Thus if Davila were found responsible for some or all of the alleged injuries to
Nuñez, the responsibility of Hobbs would be reduced or eliminated, whether or not
Davila were to pay his share.2
The question now is whether this reduction in liability to the claimant qualifies
for joinder under Fed. R. Civ. P. 14, in which the joined third-party defendant is expected
to have potential liability to the current defendant/third-party plaintiff for a portion of
the damages owed to the claimant. In other words, if Hobbs is not a “middleman” in the
claim between Nuñez and Davila, can Hobbs still use Rule 14 to join Davila as a party
2

This assumes that Hobbs is not found to be more than 50% responsible, at which point responsibility becomes
“joint and several.” Tex. Civ. Prac. & Rem. Code § 33.013(b)(1).

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and not be limited to “designating” him as a “responsible third party” under the
alternative procedural terms of the statute? See Tex. Civ. Prac. & Rem. Code § 33.004.
The damages allocation provisions appear under the “Contribution” subsection of
the Texas Proportionate Liability Act. “Contribution” is defined as:
The right that gives one of several persons who are liable on a
common debt the ability to recover proportionately from each
of the others when that one person discharges the debt for the
benefit of all; the right to demand that another who is jointly
responsible for a third party’s injury supply part of what is
required to compensate the third party.
BLACK’S LAW DICTIONARY 378 (9th ed. 2009) (emphasis added). There appears to be no
real difference in the concept of “contribution” whether Hobbs pays first and recovers
from Davila second or brings Davila in to reduce his responsibility for damages at the
outset. Form and function are the same for purposes of determining whether joinder is
appropriate. Davila may be joined pursuant to Fed. R. Civ. P. 14.
C. Conclusion
For the reasons set out above, the Motion for Leave to File Third Party Complaint
against Manuel Davila, IV filed by Defendant Hobbs (D.E. 27) is GRANTED. The Court
instructs the Clerk to file Hobbs’ third-party complaint (D.E. 27-2) as an independent
document on the docket of this Court, deemed timely filed in this case.
ORDERED this 14th day of January, 2013.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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