Opinion
No. 00-CV-337 (DNH/DRH).
January 3, 2002
JOHN SCARZAFAVA, ESQ., SCARZAFAVA BASDEKIS, Oneonta, New York, Attorney for Plaintiff.
JEFFREY N. MILLER, ESQ., FRIEDMAN, HIRSCHEN, MILLER CAMPITO, P.C., Schenectady, New York, Attorney for Defendant Superwinch, Inc. and Superwinch, LTD.
JOHN H. PENNOCK, JR., ESQ., CARRIE McLOUGHLIN, ESQ., PENNOCK BREEDLOVE, LLP, Clifton Park, New York, Attorney for Defendant AW Direct, Inc.
STEVEN WARD WILLIAMS, ESQ., SMITH, SOVIK, KENDRICK SUGNET, P.C. Syracuse, New York, Attorney for Defendant Kulkoni, Inc.
STUART C. LEVENE, ESQ., FORD MARRIN ESPOSITO WITMEYER GLESER LLP, New York, New York, Attorney for Third-Party Defendant, Associated Delivery Services, Inc.
MEMORANDUM-DECISION AND ORDER
Presently pending is the motion of defendant Kulkoni, Inc. ("Kulkoni") for an order pursuant to Fed.R.Civ., P. 14 granting leave to file and serve a third-party complaint adding Shandong Industrial, Inc. ("Shandong") as a third-party defendant. Docket Nos. 36 37. Plaintiff Gilbert W. Beneway ("Beneway") opposes the motion. Docket No. 42. For the reasons which follow, the motion is denied.
By letter dated December 14, 2001, the motion was joined by defendants Superwinch, Inc. and Superwinch, LTD.
I. Background
Beneway commenced this action on February 25, 2000 by filing a complaint alleging that he was injured on May 10, 1999 when he was crushed by a trailer ramp as the result of a defective hook. Compl. (Docket No. 1). A second amended complaint was filed on October 30, 2000 (Docket No. 18) and was served on Kulkoni on November 14, 2000. Docket No. 22. That complaint alleged that Beneway's injury was caused "when a hook on a winch manufactured and/or sold or distributed by the defendants failed in a foreseeable use. . . ." Second Am. Compl. at ¶ 12. Kulkoni filed an answer on December 20, 2000. Docket No. 25.
The original Uniform Pretrial Scheduling Order (UPSO) in this case was entered on June 30, 2000. Docket No. 7. The deadlines in that order were amended twice prior to Kulkoni's appearance in the case. Docket Nos. 13 27. By letter dated April 16, 2001, counsel for Kulkoni requested a further extension of those deadlines in light of its entry into the case. A telephone conference was then held with counsel for all parties on April 20, 2001. As a result of that conference, various deadlines in the UPSO were extended. Docket No. 30. However, because no party foresaw the possibility at that time that any other parties would be added or that the pleadings would be amended, the deadlines for joinder of parties and amendment of the pleadings were not extended. The amended deadlines required that all discovery be concluded by January 15, 2002 and that dispositive motions be filed and the case be ready for trial by April 15, 2002. Id. Kulkoni filed its motion herein on December 6, 2001. Docket No. 36.
II. Discussion
Kulkoni contends that it did not learn until Beneway's expert witness disclosure that Beneway intended to offer evidence that his injury was caused by a hook which failed to contain a safety latch or proper instructions or warnings. Williams Aff. (Docket No. 36) at ¶ 2. Kulkoni states that it purchased the hook in question from Shandong and distributed it. Id. at ¶ 3. It now seeks to commence a third-party action against Shandong.
Beneway's expert witness disclosure is dated August 21, 2001. Docket No. 36, Ex. B at 2.
A defendant may commence a third-party action only upon leave of court where, as here, the defendant seeks to commence that action more than ten days after filing its answer. Fed.R.Civ.P. 14(a). The determination of a motion seeking such leave is committed to the discretion of the district court. See Rosario v. Amalgamated Ladies' Garment Cutters' Union, 605 F.2d 1228, 1247 (2d Cir. 1979). Generally, "[t]imely motions for leave to implead non-parties should be freely granted to promote [judicial] efficiency unless to do so would prejudice the plaintiff, unduly complicate the trial, or would foster an obviously unmeritorious claim." Shafarman v. Ryder Truck Rental, Inc., 100 F.R.D. 454, 459 (S.D.N.Y. 1984); CSA Capital, Inc. v. Mountbatten Sur. Co., No. 96 Civ. 9714(DC), 1997 WL 760515, at *1 (S.D.N.Y. Dec. 9, 1997).
In determining whether to permit impleader, a court's consideration should include "`(1) whether the movant deliberately delayed or was derelict in filing the motion; (2) whether impleading would delay or unduly complicate the trial; (3) whether impleading would prejudice the third-party defendant; and (4) whether the proposed third-party complaint states a claim upon which relief can be granted.'" Middle Mkt. Fin. Corp. v. D'Orazio, No. 96 Civ. 8138 SEKHBP, 1998 WL 872412, at *2 (S.D.N.Y. Dec. 15, 1998) (quoting National Westminster Bank, PLC v. Empire Energy Management Sys., Inc., No. 93 Civ. 5331(LMM), 1996 WL 709763, at *8 (S.D.N.Y. Dec. 10, 1996).
As to the first factor, Kulkoni claims that it was unaware that Beneway would contend that the hook contributed to causing his injuries until Beneway served his expert witness disclosure in August 2001. However, the second amended complaint served on Kulkoni on November 14, 2000 clearly alleged that the hook contributed to causing Beneway's injuries. Second Am. Compl. at ¶ 12. Moreover, in response to Kulkoni's interrogatories, Beneway confirmed his contention that the hook was defective because it lacked a safety latch and adequate warnings. Docket No. 42 at 1. The record indicates that the allegations regarding the hook were further confirmed at a deposition on July 18, 2001. Docket No. 47 at 2. Finally, the involvement of the hook was further confirmed in Beneway's expert witness disclosure in August 2001. Docket No. 36 at Ex. B. On this record, therefore, Kulkoni knew or should have known that the hook was a central focus of Beneway's claim since November 14, 2000 when it was served with the second amended complaint. Kulkoni's belated claim that it did not learn of the allegation regarding the hook until Beneway served his expert witness disclosure in August 2001 is contradicted by the record and is disingenuous at best.
In an earlier proceeding, counsel for Kulkoni contended that at an inspection in April 2001, Kulkoni was shown a hook by a co-defendant which purported to be the hook involved in Beneway's injuries. According to Kulkoni, it relied on that representation and, because the hook it was shown had not been associated with Kulkoni in any way, it opted to adopt a passive role in discovery. Docket No. 47. Kulkoni does not assert this contention here. However, even if it did, any such misidentification was corrected by the deposition on July 18, 2001. See also Docket No. 47.
Moreover, the record further reveals that Beneway has failed timely to disclose any expert witness report in response to Beneway's expert witnesses. Docket No. 47. That record further indicates that notwithstanding the notice in the complaint and through discovery that Beneway was contending that the hook contributed to causing his injuries, Kulkoni failed to seek leave to implead Shandong prior to December 6, 2001 despite numerous opportunities to do so. At the conference on April 20, 2001, Kulkoni disclaimed any desire to implead a third-party. Notwithstanding the deposition on July 18, 2001 and the expert witness report from Beneway in August 2001, Kulkoni waited to file this motion until over four months after the deadline had passed for the completion of fact discovery, after expert witness disclosure had been timely served by the other parties, and as the deadline for completion of all discovery was approaching. Given what appears to be Kulkoni's sudden realization that its previously passive participation in the case may have left it less than fully prepared for dispositive motions and trial, and given that granting Kulkoni's motion would permit Kulkoni to conduct the discovery it failed timely to conduct, Kulkoni's motivation in delaying the filing of this motion is suspect. It compels the conclusion that Kulkoni was at worst deliberate in delaying the filing of this motion or at best derelict. In either case, the first factor to be considered weighs heavily against granting Kulkoni's motion.
As to the second factor, If Kulkoni's motion is granted, it is unlikely that under the best of circumstances, Shandong would appear in this action before approximately February 1, 2002. Shandong would then be entitled to at least thirty days to review the discovery materials generated in this case to date, another sixty days to serve and receive responses to its own interrogatories and document demands, sixty days to complete depositions and another sixty days to complete expert witness disclosure. Even with such an optimistic schedule and assuming no delays, the case would thereby be delayed an additional seven moths. Assuming delays might be caused by, for example, a motion to dismiss rather than an answer by Shandong or by the inherent difficulties in scheduling matters in a case with six attorneys, the case could reasonably be delayed a year or longer. Thus, impleader at this stage would unduly delay the resolution of a case which has already been pending for almost two years. The second factor, therefore, also weighs heavily against granting Kulkoni's motion.,
As to the third factor, the parties have suggested no way in which impleader might unfairly prejudice Shandong here. As to the fourth factor, the proposed third-party complaint appears to state a claim upon which relief could be granted. Accordingly, both factors weigh in favor of granting Kulkoni's motion.
Considering these factors, the deliberate or derelict manner in which Kulkoni delayed filing this motion together with the substantial delay which would reasonably result if the motion is granted far outweigh the absence of apparent prejudice to Shandong from granting the motion or the apparent sufficiency of the proposed third-party complaint. The procedural posture of this case supports this conclusion. The other parties in this case have timely conducted their discovery and disclosed their expert witness reports. If the motion is granted, discovery would necessarily be reopened and Kulkoni would be permitted to conduct further discovery with the benefit of the discovery and disclosures already made by the other parties. Such a tactical advantage would be unfair to the other parties and would reward Kulkoni for its dereliction. In similar circumstances, courts have frequently denied motions to implead at this stage of a litigation. See Middle Mkt. Fin. Corp., 1998 WL 872412, at *2 (collecting cases).
III. Conclusion
For the reasons stated above, it is hereby
ORDERED that Kulkoni's motion for leave to file and serve a third-party complaint is DENIED.
IT IS SO ORDERED.