Opinion
Action by Fred C. Myer against Frederic E. Lyford, trustee of property of New York, Ontario & Western Railway Company, wherein the original defendant brought John Tully into the action as a third party defendant. On motion of third party defendant to dismiss in accordance with provisions of Federal Rules of Civil Procedure, rule 12(b)(6), 28 U.S.C.A. following section 723c.
Motion denied.
The third party defendant, John Tully, moves the Court as follows, in accordance with the provisions of Rule of Civil Procedure 12(b)(6), 28 U.S.C.A. following section 723c:
To dismiss the action as against John Tully, third party defendant, as set forth in the plaintiff's amended complaint, because the said plaintiff's amended complaint fails to state a claim against the third party defendant, upon which relief can be granted.
The particular ground of this motion is that the plaintiff and the third party defendant are both residents of the State of Pennsylvania and that, therefore, the plaintiff could have asserted no claim against the third party defendant had he been joined originally as a defendant, and, therefore, Rule 14(a) does not permit the Plaintiff to amend his complaint to assert any claim against the third party defendant.
Alfred E. Swoyer and Louis A. Fine, both of Honesdale, Pa., for plaintiff.
Paul Bedford, of Wilkes Barre, Pa., for defendant and third party plaintiff.
Lester R. Male, of Honesdale, Pa., and C. H. Welles, 3d, of Scranton, Pa., for third party defendant.
JOHNSON, District Judge.
After hearing arguments in open court on motion of John Tully, third party defendant, to dismiss the action as set forth in plaintiff's amended complaint, on the grounds that the plaintiff could have asserted no claim against the third party defendant had he been joined originally as a defendant, and it appearing that John Tully, the third party defendant, was brought into this case by Frederic E. Lyford, Trustee of Property of New York, Ontario & Western Railway Company, defendant and third party plaintiff, thereby giving jurisdiction so as to enable the Court to dispose of the entire case on its merits at one trial and thereby avoid a multiplicity of trials, it is therefore ordered, adjudged and decreed that the motion to dismiss the action as against John Tully, third party defendant, is denied.