Lombardo v. Greyhound Lines, Inc.
Lombardo v. Greyhound Lines, Inc.
Opinion of the Court
MEMORANDUM DECISION
Ford Motor Company appears specially and moves to dismiss its impleader into this case. The defendant third-party plaintiff Greyhound Lines, Inc., opposes the motion and seeks an order allowing it leave to implead Ford Motor Company.
PROCEDURAL HISTORY
This action arises out of an accident which occurred on November 25, 1995. A large Greyhound bus rear-ended the plaintiffs vehicle allegedly causing the plaintiff serious injuries. An action against Greyhound was commenced in the state court in November of 1996 and was thereafter removed to this Court. The original parties filed a joint report under Rule 26(f), Fed.R.Civ.P., in March of 1997 that set a deadline for adding parties of May 15, 1997. This was extended by Greyhound’s motion for thirty days or until June 14, 1997. Approximately five months later Greyhound served its third-party complaint on Ford. The instant motions followed.
THE LAW
Greyhound argues that the joint report submitted from the Rule 26(f) meeting is merely a proposal and is designed to prepare the parties for a Rule 16 conference subsequently to be held by the Court. That is not always the case. If the parties do not request a Rule 16 conference and if the joint report is satisfactory to the Court, it may be “so ordered” by the Court, which is what, in fact, occurred here. As such, the time limits are orders of the Court, modifying the deadlines prescribed by the Local Rules of this District.
Greyhound also argues that it is procedurally improper for Ford to file a pre-answer motion to dismiss based upon a claim of improper impleader. We do not have to address that issue since we have pending before us Greyhound’s cross-motion to allow the impleader. However, we do note that Greyhound served its third-party complaint on Ford, prior to filing it motion for leave to implead Ford.
Greyhound argues that its failure to comply with the scheduling order is excused by the fact that plaintiff filed an amended complaint and that it served its answer to the ■ amended complaint on October 31, 1997, which would give it ten more days under Rule 14
We do not view the brief delay after the filing of the answer to the amended complaint before seeking impleader as being critical. However, when we turn to the facts of this case, it appears on the merits that this late impleader should not be allowed.
In response to Greyhound’s motion to dismiss the original complaint, plaintiff filed an amended complaint in May of 1997. Greyhound did not answer this amended complaint until October 31, 1997. No explanation is given for the delay of over five months in filing the answer. It was during that period of time that its authorization to implead a third-party defendant expired. We, therefore, consider the merits of Greyhound’s motion to allow it to file an impleader action, which is a matter committed to the sound discretion of this Court.
When we turn to the facts of this case, it appears on the merits that this late impleader should not be allowed. The question of timeliness depends on the facts of the particular case. 6 Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d § 1454 (1990). The original complaint was filed in November of 1996. The complaint was amended in April of 1997, although the amendments did not affect the basis for Greyhound’s impleader of Ford, and Greyhound did not seek to implead Ford until November of 1997. No satisfactory explanation is offered by Greyhound for the delay of one year in seeking to implead Ford. Thus, we find Greyhound’s motion to be untimely.
Additionally, a motion to bring in a third party may be denied where there is prejudice to the new party particularly where the movant cannot reasonably explain the delay. 3 Moore’s Federal Practice 3d § 14.21[3] (1997). Greyhound does not attempt to explain its delay in seeking implead
Additionally, under the original parties’ scheduling order, as amended by order of this Court, the deadlines for conducting depositions, for providing expert reports and final exhibit lists have expired. Thus, bringing in a third-party defendant at this time would substantially delay the trial of this case and would prejudice both plaintiff and Ford. See Insurance Co. of N. Am. v. Morrison, supra.
CONCLUSION
Under the circumstances, the motion to implead (Doc. No. 24) is DENIED and Ford’s motion to dismiss (Doc. No. 23) is GRANTED (to the extent that there has been a proper impleader of Ford). It follows that Greyhound’s motion for sanctions (Doc. No. 25) is also DENIED.
. The Standing Order on Scheduling in Civil Cases in this District provides in paragraph 2(b) that the presumptive filing deadline for the filing of all motions relating to joinder of parties shall be sixty days after the filing of the complaint, the filing of a petition for removal, or the transfer of
. Rule 14(a), Fed.R.Civ.P., provides for a ten-day period after a defendant files its original answer within which it may implead a third-party plaintiff without leave of court. Thereafter, leave of court is required.
. The motion for admission pro hac vice was filed hy counsel for Greyhound as third-party plaintiff. This counsel had not previously appeared in this action. An Order Returning Pleading was entered by this Judge because of the motion’s failure to comply with Local Rule 2(d), which requires a motion to admit to be made by local counsel or a member of the bar of this Court. Additionally, the motion did not have a certificate of service attached.
. We do not at this time have to consider the issue of whether under Connecticut law a tortfeasor may implead another tortfeasor as to whom plaintiff may have a claim but has not sought to assert one in an attempt to obtain contribution to a settlement or a possible subsequent judgment.
Reference
- Full Case Name
- Judith A. LOMBARDO v. GREYHOUND LINES, INC. and Sean S. Walters, Defendants GREYHOUND LINES, INC., Third-Party v. FORD MOTOR COMPANY and XYZ Dealership, fictitious and unknown name to be determined, Third-Party
- Cited By
- 3 cases
- Status
- Published