Toberman v. Copas

800 F. Supp. 1239 (M.D. Pa. 1992)

Facts:

• The Tobermans were in an accident on the PA Turnpike involving several defendants

Procedural History:

• The Tobermans’ complaint alleges negligence against deendants including Menendez
• Menendez filed a 3^rd Party Complaint against Timothy Swarthout & St. Johnsbury Trucking Co., alleging in his complaint that these 3^rd party defendants are solely liable to the plaintiffs.

Menendez must amend his claim or it will be dismissed.

Contentions of parties:

3^rd Party r: the complaint does not fall within the court’s ancillary jurisdiction and does not follow Rule 8.

Issue:

Whether under Rule 14 a 3^rd Party Complaint can implead a 3^rd Party defendant alleging that defendant is solely liable to the ¶.

Holding:

Under Rule 14 a 3^rd Party Complaint cannot implead a 3^rd Party defendant alleging that defendant is solely liable to the ¶, because Rule 14 allows a claim for secondary liability where the 3^rd Party r is liable to the 3^rd Party ¶, not the original ¶.

Rule:

Rule 14 allows for a 3^rd Party complaint where the 3^rd Party r is liable to the 3^rd Party ¶, but it does not allow for the claim that the 3^rd Party r is solely liable to the original ¶.

Rule(s) of Law:

Rule 14

Rule 14. Third-Party Practice

(a) When a Defending Party May Bring in a Third Party.>

(1) Timing of the Summons and Complaint. 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 10 days after serving its original answer.

            (2) Third-Party Defendant’s Claims and Defenses. The person served with the summons and third-party complaint–the “third-party defendant”:

                        (A) must assert any defense against the third-party plaintiff’s claim under Rule 12;

                        (B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g);>

(C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff’s claim; and

(D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff.

            (3) Plaintiff’s Claims Against a Third-Party Defendant. The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of             the plaintiff’s claim against the third-party plaintiff. The third-party defendant must then assert anydefense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g).

            (4) Motion to Strike, Sever, or Try Separately. Any party may move to strike the third-party claim, to sever it, or to try it separately.

            (5) Third-Party Defendant’s Claim Against a Nonparty. A third-party defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for all or             part of any claim against it.

            (6) Third-Party Complaint In Rem. If it is within the admiralty or maritime jurisdiction, a third- party complaint may be in rem. In that event, a reference in this rule to the “summons” includes the warrant of arrest, and a reference to the defendant or third-party plaintiff includes, when appropriate, a person who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested.

(b) When a Plaintiff May Bring in a Third Party. When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so.>

Court’s Order:

Menendez must amend his claim or it will be dismissed.