Kokosing Construction Company, Inc. v. Go Green America Recycling, LLC et al

Filing 44

MEMORANDUM OPINION AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT CENTER POINT TERMINAL J&W, LLC'S MOTION FOR LEAVE TO FILE CROSS-CLAIM AND THIRD-PARTY COMPLAINT AND SETTING DEADLINE FOR FILING OF CROSS-CLAIM AND THIRD-PARTY COMPLAINT: Granting in part and denying in part 41 Motion for Leave to File; defendant, Center Point Terminal J&W is directed to file its cross-claim and 3rd-Pty Complaint against Weirton Area Port Authority by 10/17/14; request to file cross-claim against Go Green American Recycling, Inc., is Denied. Signed by Senior Judge Frederick P. Stamp, Jr on 10/3/14. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KOKOSING CONSTRUCTION COMPANY, INC.,
an Ohio corporation,
Plaintiff,
v.

Civil Action No. 5:13CV129
(STAMP)

GO GREEN AMERICAN RECYCLING, LLC
an Ohio limited liability company;
CENTER POINT TERMINAL J&W, LLC,
a Delaware limited liability company;
WEIRTON AREA PORT AUTHORITY, INC.,
a West Virginia corporation;
and CENTER POINT TERMINAL COMPANY, LLC,
a Delaware limited liability company,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING IN PART AND GRANTING IN PART
DEFENDANT CENTER POINT TERMINAL J&W, LLC’S
MOTION FOR LEAVE TO FILE CROSS-CLAIM
AND THIRD-PARTY COMPLAINT AND
SETTING DEADLINE FOR FILING OF CROSS-CLAIM
AND THIRD-PARTY COMPLAINT
I.

Background

This civil action was filed in this Court by the plaintiff,
Kokosing Construction Company, Inc. (“Kokosing”).

The plaintiff’s

complaint arises from a contract with the Weirton Area Port
Authority, Inc. (“WAPA, Inc.”). The amended complaint alleges that
WAPA, Inc. failed to pay the plaintiff for work completed on a
piece

of

property”).

property

in

Weirton,

West

Virginia

(“the

Weirton

Further, the amended complaint asserts that the

plaintiff has a mechanic’s lien on the property that it can

exercise against Center Point Terminal J&W, LLC (“J&W”).

The

plaintiff thus asserts three claims in its amended complaint: (1)
enforcement of a mechanic’s lien, (2) breach of contract by WAPA,
Inc. and (3) unjust enrichment of WAPA, Inc.

Thus, the only count

that relates to J&W is Count One, enforcement of a mechanic’s lien.
Originally, the plaintiff had brought this action against two
defendants, Go Green America Recycling, LLC (“Go Green”) and Center
Point Terminal, LLC (“Center Point”).

Go Green and Center Point

were the owners of the Weirton property at the time the work was
completed by the plaintiff.

However, the plaintiff then filed an

amended complaint against three defendants, Center Point, J&W, and
WAPA,

Inc.

Thus,

Go

Green

was

dismissed

from

the

case.

Thereafter, the parties filed a joint stipulation dismissing Center
Point as a party and also stipulating that: (1) the current owner
of the Weirton property is J&W and (2) Center Point was not a
necessary party. Thus, the two remaining defendants in this action
are J&W and WAPA, Inc.
J&W has now filed a motion for leave to file a cross-claim
against WAPA, Inc. and Go Green, and a third-party complaint
against a new party, Weirton Area Port Authority.

Neither WAPA,

Inc. nor Kokosing filed a response to the motion.

Based on the

analysis that follows, this Court denies in part and grants in part
J&W’s motion.

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II.

Discussion

In its proposed cross-claim and third-party complaint, J&W
alleges that WAPA, Inc. acted as an agent of Go Green when it was
performing the allegedly breach contract and that Go Green and
Center Point were aware that work by Kokosing was arranged on their
behalf by WAPA, Inc.

Further, J&W denies in its proposed pleading

that WAPA, Inc. was its agent.

Additionally, J&W alleges that

Weirton Area Port Authority participated in the alleged wrongdoing
either separately or together with WAPA, Inc.

Based on these

facts, J&W asserts that it is entitled to relief based on theories
of

common

law

indemnification

and

contribution,

contractual

indemnification and contribution, breach of general warranty deed
and fraud in inducement, and slander to title.
A.

Request for Leave to File Cross-Claims
Federal

Rule

of

Civil

Procedure

13(g)

sets

forth

the

requirements that must be met in order for a party to file a crossclaim:
A pleading may state as a crossclaim any claim by one
party against a coparty if the claim arises out of the
transaction or occurrence that is the subject matter of
the original action or of a counterclaim, or if the claim
relates to any property that is the subject matter of the
original action. The crossclaim may include a claim that
the coparty is or may be liable to the cross-claimant for
all or part of a claim asserted in the action against the
cross-claimant.
Initially, this Court finds that the allegations against Go Green
and WAPA, Inc. appear to arise out of the transaction or occurrence

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that is the subject matter of the original action instituted by
Kokosing.

Further, WAPA, Inc. is a coparty of J&W.

However, Go

Green is no longer a coparty as Go Green was terminated from this
action after Kokosing filed its amended complaint.

Accordingly, a

cross-claim may not be brought against Go Green by J&W.

Thus,

J&W’s request for leave to file cross-claims against Go Green and
WAPA, Inc. must be denied in part and granted in part.
B.

Request for Leave to File a Third-Party Complaint
Pursuant to Federal Rule of Civil Procedure 14(a):
A defending party may, as third-party plaintiff, serve a
summons and complaint on a nonparty who is or may be
liable to it for all or part of the claim against it. But
the third-party plaintiff must, by motion, obtain the
court’s leave if it files the third-party complaint more
than 14 days after serving its original answer.

J&W has sought to file a third-party complaint more than 14 days
after serving its original answer.

As such, J&W had to seek leave

to file the third-party complaint.

This Court finds no reason to

not grant leave to file a third-party complaint against Weirton
Area Port Authority.

Accordingly, J&W’s request to file a third-

party complaint against Weirton Area Port Authority is granted.
III.

Conclusion

For the reasons set forth above, this Court DENIES IN PART and
GRANTS IN PART defendant Center Point Terminal J&W, LLC’s motion
for leave to file cross-claim against Weirton Area Port Authority,
Inc.

and

Go

Green

American

Recycling,

Inc.

complaint against Weirton Area Port Authority.
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and

third-party
Center Point

Terminal J&W, LLC may file a cross-claim against Weirton Area Port
Authority, Inc. and a third-party complaint against Weirton Area
Port Authority.
for

leave

to

However, Center Point Terminal J&W, LLC’s request
file

a

cross-claim

against

Go

Green

American

Recycling, Inc. is denied.
Further, in order to move forward in this action, defendant
Center Point Terminal J&W, LLC is DIRECTED to file its cross-claim
and third-party complaint by October 17, 2014.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

October 3, 2014

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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