Opinion
No. CV-18-2300-PHX-RCC (EJM)
10-18-2019
quasar energy group, llc, Plaintiff, v. WOF SW GGP 1 LLC, Defendant. WOF SW GGP 1 LLC, Counter-Plaintiff, v. quasar energy group, llc, Counter-Defendant. quasar energy group, llc, Third-Party Plaintiff, v. Vaughan Co., Inc., et al., Third-Party Defendant.
ORDER
Currently pending before the Court is Plaintiff/Counter-Defendant quasar energy group, llc's Motion for Leave to File First Amended Third-Party Complaint Instanter (Doc. 120). Plaintiff/Counter-Defendant seeks leave to amend its Third-Party Complaint to remove Third-Party Defendant Cleveland Plumbing Supply Co. and replace it with Skyline Mechanical Services, Inc. See id., Redline Proposed First Amended Third-Party Complaint (Exh. "B"). Plaintiff/Counter-Defendant asserts that this amendment is necessary because of its recent discovery of additional alleged defects not previously claimed by Defendant/Counter-Plaintiff WOF SW GGP1, LLC. See id. at 2. Rule 14(a), Federal Rules of Civil Procedure, 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." "The crucial characteristic of a Rule 14 claim is that defendant is attempting to transfer to the third-party defendant the liability asserted against him by the original plaintiff." Stewart v. American Int'l Oil & Gas Co., 845 F.2d 196, 200 (9th Cir. 1988) (quoting Wright & Miller, 6 Fed. Prac. & Proc. § 1446 at 257 (1971 ed.)). "The decision to allow a third-party defendant to be impleaded under rule 14 is entrusted to the sound discretion of the trial court." United States v. One 1977 Mercedes Benz, 708 F.2d 444, 452 (9th Cir. 1983).
The Court has reviewed the proposed amendments and notes that claims against all other Third-Party Defendants remain unchanged. See id., Exh. "B." An amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Third-Party Complaint (Doc. 46) as nonexistent. Ferdik, 963 F.2d at 1262. As such, Plaintiff/Counter-Defendant shall be allowed to amend its Third-Party Complaint (Doc. 46).
Accordingly, IT IS HEREBY ORDERED that Plaintiff/Counter-Defendant quasar energy group, llc's Motion for Leave to File First Amended Third-Party Complaint Instanter (Doc. 120) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff/Counter-Defendant quasar energy group, llc shall file and serve its First Amended Third-Party Complaint within fourteen (14) days of the date of this Order. See LRCiv. 15.1 (a). . . . . . .
IT IS FURTHER ORDERED that all currently pending motions to dismiss filed against the original Third-Party Complaint (Doc. 46), shall stand as to the First-Amended Third-Party Complaint, unless notice is otherwise given.
Dated this 18th day of October, 2019.
/s/_________
Eric J. Markovich
United States Magistrate Judge