Johnson Controls, Inc. v. MV PHILADELPHIA EXPRESS et al

Filing 50

MEMORANDUM AND ORDER granted in part and denied in part 44 Opposed MOTION to Designate Responsible Third Party (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHNSON CONTROLS, INC.,
Plaintiff,
v.
M/V PHILADELPHIA EXPRESS,
et al.,
Defendants.

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CIVIL ACTION NO. H-12-3353

MEMORANDUM AND ORDER
This case is before the Court on the Motion for Leave to Designate Responsible
Third Parties (“Motion”) [Doc. # 44] filed by Defendant Gulf Winds International,
Inc. (“Gulf Winds”), seeking to designate Krauss Maffei Technologies GMBH,
Krauss Maffei Corporation, Runtime Packaging GMBH, Hapag-Lloyd USA, LLC,
Hapag-Lloyd AG, and Ceres Gulf, Inc. as responsible third parties pursuant to Texas
Civil Practice & Remedies Code § 33.004. Plaintiff Johnson Controls, Inc. opposes
the Motion. The Motion is granted in part and denied in part.
In pertinent part, § 33.004 provides that “[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.” TEX. CIV. PRAC. & REM. CODE § 31.004. Under
§ 33.011(6), a “responsible third party” “means [in pertinent part] any person who is
alleged to have caused or contributed to causing in any way the harm for which
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recovery of damages is sought, whether by negligent act or omission, by any defective
or unreasonably dangerous product, by other conduct or activity that violates an
applicable legal standard, or by any combination of these.” Tex. Civ. Prac. & Rem.
Code § 31.011(6); see also Werner v. KPMG LLP, 415 F. Supp. 2d 688, 702-03 (S.D.
Tex. 2006); Cortez v. Frank’s Casing Crew & Rental Tools, 2007 WL 419371 (S.D.
Tex. Feb. 2, 2007). If a person is held to be a responsible third party, that person is
to be included in the list of parties the jury may consider for allocation of
responsibility for the plaintiff’s damages. See TEX. CIV. PRAC. & REM. CODE
§ 33.003.
Plaintiff Johnson Controls, Inc. filed an Objection [Doc. # 46], noting that the
Texas Code provision for designating responsible third parties does not apply to
breach of contract claims. Plaintiff asserts in the Objection that it “asserts only a
breach of contract claim against Gulf Winds . . ..” See Objection, ¶ 5.
Gulf Winds filed a Reply [Doc. # 49], noting correctly that Plaintiff’s First
Amended Complaint includes negligence and other claims against Gulf Winds in
addition to the breach of contract claim. See First Amended Complaint [Doc. # 37],
¶¶ 13, 15. Consequently, it is hereby
ORDERED that Gulf Winds’ Motion for Leave to Designate Responsible
Third Parties [Doc. # 44] is DENIED as to the breach of contract claim and

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GRANTED as to all other claims. If, as stated in the Objection, Plaintiff intends to
assert only a breach of contract claim against Gulf Winds, Plaintiff may file a written
notice that all other claims against Gulf Winds are abandoned.
SIGNED at Houston, Texas, this 24th day of October, 2013.

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