United States District Court, W.D. Kentucky, Paducah Division
MEMORANDUM OPINION AND ORDER
Brent Brennenstuhl United States Magistrate Judge.
Plaintiffs, Robertson Incorporated Bridge & Grading
Division and Federal Insurance Company
("Defendants"), have moved the Court for leave to
file a third party complaint against Bacon Farmer Workman
Engineering & Testing, Inc., pursuant to Fed.R.Civ.P.
14(a) (DN 62). Plaintiff, the City of Murray, Kentucky, has
filed an objection (DN 66), and the time for filing a reply
has expired. For the reasons set forth below, the motion is
OF THE MOTION
of background, the Plaintiff filed this case in January of
2017. Plaintiff contracted with Robertson for improvements to
certain real property and the construction of a pump station
and force main facility in Calloway County, Kentucky (DN 1 at
¶ 7). According to the Plaintiff, Robertson constructed
a concrete wet well that was not in keeping with the
project's agreed plans and specifications (Id.
at ¶ 11). Now, in its third party complaint, Defendants
argue that Bacon Farmer was the company tasked with
inspecting Robertson's steel and concrete work, that
Bacon Farmer opined the work was acceptable, and as a result
Bacon Farmer is liable to the Defendants in the event
Defendants are found liable to the city of Murray (DN 62-2 at
PageID # 1115-17).
Defendants' motion (DN 62) contains no explanation or
justification for why the Court should allow them to name a
third-party defendant more than four months after the time
expired to do so without showing cause (DN 13). Instead, it
simply contains a complaint against Bacon Farmer. In its
objection, Plaintiff demonstrates that the dispute upon which
Defendants base their third-party complaint is not new, and
in fact Defendants were aware of the issue as much as two
years ago (DN 66 at PageID # 1134). Plaintiff has highlighted
email correspondence which were produced to the Plaintiff on
September 8, 2017 that include an email from Robertson's
project manager, Bob Persons, to Robertson's local
counsel, Doug Kennedy. In this email, Persons states the need
to include Bacon Farmer in the action because Bacon Farmer
performed the rebar inspection (Id.; DN 66-1 at
PageID # 1143). The date of this email is March 30, 2016
(Id.). Defendants have filed no reply countering
Plaintiff's narrative or offering additional information.
Civ. P. 14(a)(1) provides that "[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." "The decision of whether to grant
a motion for leave to implead is a matter committed to the
discretion of the district court, and the exercise of
discretion is essentially a process of balancing the
prejudices." Asher v. Unarco Material Handling,
Inc., No. 6:06-548-DCR, 2007 WL 3046064, at *4 (E.D. Ky.
Oct. 16, 2007). "Competing interests include the
avoiding of duplicative litigation versus ensuring that
parties already before the court receive expeditious
adjudication." Id. (cleaned up). The Sixth
Circuit has stated that the promptness of a motion for leave
to implead a third-party is "an urgent factor"
guiding a court's exercise of discretion. Gen. Elec.
Co. v. Irvin, 274 F.2d 175, 178 (6th Cir.1960). Other
factors include: (i) the motion's timeliness; (ii) the
likelihood of trial delay; (iii) potential for complication
of issues; and (iv) prejudice to the original plaintiff.
Botkin v. Tokio Marine & Nichido Fire Ins. Co .,
Ltd., 956 F.Supp.2d 795, 802 (E.D.Ky.2013)
as here, the motion for leave to add a third party is filed
after time has expired in the scheduling order for amending
pleadings, a court should also be mindful of Rule
16(b)(4)'s good cause standard, as the motion effectively
seeks leave both to add a third-party defendant and to amend
the defendant's pleadings. Woodcock v. Ky. Dept. of
Corr., No. 5:12-CV-00135-GNS-LKK, 2016 WL 3676768, at *1
(W.D. Ky., July 6, 2016) (citation omitted). “The
primary measure of Rule 16's ‘good cause'
standard is the moving party's diligence in attempting to
meet the case management order's requirements.”
Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir.
2002) (citations omitted). “Another relevant
consideration is possible prejudice to the party opposing the
case, Defendants have not even attempted to demonstrate good
cause. Their motion to add a third-party is merely a
statement that they are seeking leave under Rule 14. When the
Plaintiff objected, Defendants maintained their silence.
However, the undersigned notes that the Plaintiff has offered
a more than sufficient showing that Defendants have failed to
demonstrate any promptness in filing this motion, which is
the touchstone of a court's inquiry under Rule 14.
Irvin, 274 F.2d at 178. The email from Bob Persons
demonstrates counsel was put on notice of Bacon Farmer's
potential involvement over two years ago. Additionally,
impleading a third-party at this point would create the need
for additional discovery. Given the nature of the Plaintiffs
complaint, there is a strong interest against creating
additional delays in this action. The Persons email also
precludes Defendants from satisfying Rule 16(b)(4)'s good
cause standard. The Court concludes there is no excuse for
failing to file this motion before the October deadline set
forth in the scheduling order (DN 13), and Defendants have
plainly not been diligent in pursuing this particular cause
IS HEREBY ORDERED that Defendants' motion ...