Meeker et al v. Starfish Children's Services et al

Filing 76

ORDER granting Plaintiffs' 50 Motion to strike Defendant Bossman's third-party complaint against Naomi Kerwin. Signed by U.S. District Judge John C Coughenour.(MW)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ROBERT MEEKER, et al.,

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Plaintiffs,

ORDER

v.

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CASE NO. C17-0376-JCC

STARFISH CHILDREN’S SERVICES, et al.,

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Defendants.

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This matter comes before the Court on Plaintiffs’ motion to strike Defendant Bosmann’s

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third-party complaint against Naomi Kerwin (Dkt. No. 50). Having thoroughly considered the

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parties’ briefing and the relevant record, the Court hereby GRANTS the motion for the reasons

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explained herein.

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I.

BACKGROUND

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The Court has set forth the facts of this case in a previous order, and will not repeat them

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here. (See Dkt. No. 32 at 2–3.) In his answer to Plaintiffs’ complaint, Defendant Bosmann timely

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filed a third-party complaint against Naomi Kerwin. (Dkt. No. 45 at 12–17.) Defendant Bosmann

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alleges that Plaintiffs’ alleged damages were caused in whole or in part by Ms. Kerwin. (Id.) Ms.

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Kerwin lives in China and is a former employee of Starfish Children’s Services (“Starfish”). (Id.

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at 12.) Among other duties as a Starfish employee, Ms. Kerwin was required to disclose certain

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medical information about the children to China’s Child Welfare Institutes (“CWIs”). (Id. at 12–
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13.) Once it receives that information, the CWIs transfer it to the China Center for Children’s

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Welfare and Adoption (“CCWA”). (Id. at 13.) The CCWA is the only agency authorized to

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provide information to adoption agencies in the United States. (Id.) In his complaint, Defendant

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Bosmann asserts claims for wrongful adoption and negligence against Ms. Kerwin, alleging that

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if he is liable to Plaintiffs for those causes of action, so is Ms. Kerwin. (Id. at 16–17.) Plaintiffs

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move to strike Defendant Bosmann’s third-party complaint against Ms. Kerwin. (Dkt. No. 50.)

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II.

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DISCUSSION
The decision of whether to implead a third party under Federal Rule of Civil Procedure

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14 is within the sound discretion of the trial court. Stewart v. Am. Int’l Oil & Gas Co., 845 F.2d

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196, 199 (9th Cir. 1988). Under Rule 14(a)(1) “[a] defending party may, as third-party plaintiff,

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serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the

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claim against it.” Fed. R. Civ. P. 14(a)(1). The Ninth Circuit has held that “a third-party claim

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may be asserted only when the third party’s liability is in some way dependent on the outcome of

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the main claim and is secondary or derivative thereto.” Stewart, 845 F.2d at 199. The purpose of

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Rule 14 is to avoid duplicative litigation and to encourage judicial efficiency by trying claims

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against third parties who may be derivatively liable to the defendant together with the plaintiff’s

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original claim. Sw. Adm’rs, Inc. v. Rozay’s Transfer, 791 F.2d 769, 777 (9th Cir. 1986). In

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deciding whether to grant impleader, courts may also consider the following factors: “(1)

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prejudice to the original plaintiff; (2) complication of issues at trial; (3) likelihood of trial delay;

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and (4) timeliness of the motion to implead.” Irwin v. Mascott, 94 F. Supp. 2d 1052, 1056 (N.D.

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Cal. 2000).

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First, the face of Defendant Bosmann’s third-party complaint indicates that he is asserting

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a theory of liability based on indemnity. (Dkt. No. 45 at 16–17.) In his briefing in response to the

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instant motion, Defendant Bosmann asserts that the third-party claims are for common law

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indemnity and breach of fiduciary duty. (Dkt. No. 59 at 6–8.) Taking that assertion as sufficient,

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the Court will analyze whether the third-party action should proceed using the Irwin factors.
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The Irwin factors regarding prejudice to Plaintiffs and likelihood of trial delay weigh

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against the addition of third parties. Because Ms. Kerwin resides in China, she has to be served

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summons in accordance with the Hague Convention—a lengthy process. Additionally, the

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parties have already begun discovery; waiting for service to be effected and for Ms. Kerwin to

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participate in discovery will significantly lengthen the time it takes to resolve this lawsuit.

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Therefore, the first and third Irwin factors weigh in favor of striking the third-party complaint.

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Additionally, inclusion of Ms. Kerwin as a third party will complicate the issues at trial.

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For example, with regard to the breach of fiduciary duty claim, Defendant Bosmann asserts that

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Utah law would apply to that claim, and that the crux of the claim is that Ms. Kerwin owed a

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duty to Starfish and failed to satisfy that duty when she failed to disclose information to CCWA.

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At best, the facts surrounding this claim are tangential to the facts in Plaintiffs’ complaint and

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may result in the application of different state law. (See Dkt. No. 1.) The addition of Ms. Kerwin

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will only draw out the proceedings, hampering judicial efficiency.

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III.

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CONCLUSION
For the foregoing reasons, Plaintiff’s motion to strike Defendant Bosmann’s third-party

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complaint against Naomi Kerwin (Dkt. No. 50) is GRANTED. Defendant Bosmann’s third-party

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claims against Naomi Kerwin are DISMISSED without prejudice.

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DATED this 9th day of May 2019.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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