Riccitelli v . Water Pik CV-00-531-M 10/04/01 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Shawn Riccitelli, et a l .

v. Civil N o . 00-531-M Opinion N o .

Water Pik Technologies, Inc. and Laars, Inc.

O R D E R

Defendants move under Fed. R. Civ. P. 14 to implead two

third-party defendants in order to assert claims for contribution

under New Hampshire statutory law and claims for indemnity.

(document n o . 3 3 ) . The plaintiff objects.

Discussion

Because the defendants did not serve their third-party

complaint within ten (10) days of their answer they must obtain

leave of court to proceed. See Fed. R. Civ. P. 14(a). The

decision as to whether to allow impleader “is left to the

informed discretion of the district court, which should allow

impleader on any colorable claim of derivative liability that

will not unduly delay or otherwise prejudice the ongoing

proceedings.” Lehman v . Revolution Portfolio L.L.C.,

(1st Cir. 1999)(citations omitted). 1. Colorable Claims

a. Contribution Claims

Defendants seek contribution against Unifin International,

Inc. (“Unifin”), the manufacturer of the finning machine that

allegedly caused the harm in this case, for negligent design and

manufacture (Count II) and for failure to warn (Counts III and

IV). Essentially, these claims allege that Unifin failed to

guard against and warn of dangers posed by the absence of

protective devices on the finning machine. The defendants also

seek contribution against Unifin based upon breach of express and

implied warranties that the machine was fit for a particular

purpose (Counts VI and VIII).

In addition, the defendants seek contribution from Agentry

Staffing Services (“Agentry”), a temporary employment service

that placed the plaintiff at the defendants’ manufacturing

facility where he was injured. Specifically, the defendants seek

contribution against Agentry based on Agentry’s alleged breach of

contractual obligations to insure the defendants and to monitor

compliance with safety measures regarding the finning machine

(Count X ) . They further seek contribution against Agentry based

upon Agentry’s alleged breach of a duty to supervise and ensure

2 the safety of work areas within defendants’ facility and a duty

to advise the defendants of potential hazards (Count X I ) .

In Connors v . Suburban Propane Co.,

3 , 81

(D.N.H. 1996)(McAuliffe, J . ) , this court ruled that “Fed. R. Civ.

P. 14 cannot be invoked, without plaintiffs’ consent, to bring a

contribution action premised on N.H. Rev. Stat. Ann. [(“RSA”)] §

507:7-f & g against a third-party defendant in [a] diversity

action.” According to the Connors court, permitting the use of

Rule 14 to implead third-party contribution defendants without

the plaintiff’s consent would violate the Rules Enabling Act,

, by limiting the plaintiff’s substantive right

under state law to control which parties may participate in the

litigation. See

Under Connors, therefore, the defendants

would need to seek contribution from Unifin and Agentry in a

separate action.

I am not inclined to disregard Judge McAuliffe’s decision in

Connors, although I recognize that the conclusion in that case

has been called into question. See Chapman v . Therriault,

*2-3 (D.N.H. 1998)(rejecting the court’s conclusion in

Connors that the plaintiff’s right of consent under RSA § 507:7

is substantive, and finding that the Federal Rules of Civil

3 Procedure preempt the procedural requirements of the New

Hampshire contribution statute); 3 MOORE’S FEDERAL PRACTICE, §§

14.05[2] & 14.07 (3d ed. 2001)(“While the [Connors] opinion is

carefully and thoughtfully crafted, the conclusion seems

debatable.”). Nevertheless, it is unnecessary to evaluate at

this time whether Connors remains good law. Even assuming Fed.

R. Civ. P. 14 preempts New Hampshire’s contribution statute and

the defendants’ have asserted colorable contribution claims,1 the

1 On its face, the defendants’ proposed third-party complaint alleges colorable contribution claims against Unifin. It does not, however, assert colorable claims against Agentry. Pursuant to RSA 507:7-f, “a right of contribution exists between or among 2 or more persons who are jointly and severally liable upon the same indivisible claim, or otherwise liable for the same injury, death or harm, whether or not judgment has been recovered against all or any of them.” The defendants have failed to explain how their claim that Agentry breached a contractual obligation to insure the defendants, asserted in Count X, gives rise to a contribution action under New Hampshire law. As for the defendants’ claim that Agentry breached a contractual obligation to develop safety programs and monitor compliance with safety procedures on the plant floor, the defendants have failed to demonstrate the existence of such a contract. Nothing in the defendants’ exhibits indicates that Agentry was contractually obligated to provide these services. Finally, the defendants cannot assert a contribution claim against Agentry based upon Agentry’s alleged negligence, as set forth in Count X I . “The question of contribution arises only in the event there are joint tortfeasors.” William H. Field Co., Inc. v . Nuroco Woodwork, Inc.,

(1975). Because the New Hampshire Workers’ Compensation Act precludes Agentry from being held liable in tort to the plaintiff, Agentry cannot be a joint tortfeasor with the defendants. See

. See also Bilodeau v . Oliver Stores, Inc.,

3 , 88 (1976)(“The

4 complexity of the issues raised by the defendants’ third-party

complaint, and the undue delay and prejudice that would arise if

the defendants were to pursue their contribution claims in this

suit, support the denial of defendants’ motion.

b. Indemnity

Defendants seek indemnity from Unifin based upon Unifin’s

allegedly negligent design and manufacture (Count I ) , failure to

warn (Count I I I ) , breach of express and implied warranties of

fitness for a particular purpose (Counts V and V I I ) , and breach

of an implied warranty of merchantability (Count V I I ) . They also

seek indemnity from Agentry based upon breach of contract (Count

IX). The defendants have provided no legal basis for their

proposed indemnity claims. Except for a reference to the New

Hampshire Supreme Court decision in Consolidated Util. Equip.

Servs., Inc. v . Emhart Mfg. Corp.,

(1983)(hereafter

referred to as “CUES”), the defendants have offered no legal

citations to demonstrate that New Hampshire recognizes a right to

employer cannot be joined or sued by the third party as a tortfeasor as he cannot be liable to the employee in tort.”) Accordingly, the defendants have failed to present a colorable claim against Agentry based on a right to contribution between joint tortfeasors. See William H. Field C o . Inc.,

.

5 indemnity based upon the types of claims that the defendants

advance here.

CUES is of little help. In that case the state court ruled

that a joint tortfeasor can obtain indemnification against

another only “where the indemnitee’s liability is derivative or

imputed by law, or where an express or implied duty to indemnify

exists.” CUES,

(citations omitted).

The facts of this case do not fall within either category.

Here, the plaintiff alleges that the defendants are directly at

fault. His claims against the defendants are not based upon the

fault of Unifin or Agentry, but upon the defendants’ own action

or inaction. The defendants, therefore, are not alleged to be

derivatively liable. See Hamilton v . Volkswagen of Am., Inc.,

6 1 , 563 (1984); William H. Field Co., Inc.,

.

Nor have the defendants demonstrated a colorable claim based

on an express or implied duty to indemnify. The defendants admit

that there are no express indemnity agreements between them and

Unifin or Agentry. Accordingly, they must rely upon an implied

duty to indemnify. In New Hampshire, however, indemnity

agreements are rarely implied. See Dunn v . CLD Paving, Inc., 140

(1995); Hamilton, 125 N.H. at 564. In the few

cases where the New Hampshire Supreme Court has recognized an

implied duty, the justification for the finding “rested on the

fault of the indemnitor as the source of the indemnitee’s

liability in the underlying action and, conversely, the

indemnitee’s freedom from fault in bringing about the dangerous

condition.” Hamilton, 125 N.H. at 563-64. See also Dunn, 140

N.H. at 123; Collectramatic, Inc. v . Kentucky Fried Chicken

Corp.,

(1985). This is not what has been

alleged here.

The defendants’ ability to assert their proposed claims is

far from certain. In addition, the proposed claims are complex

and would create jury confusion. The latter, of course, is part

of the defendants’ motive.

2. Undue Delay

Although the defendants’ initial motion was timely, granting

the motion would cause undue delay. Trial in this case is

currently scheduled for early February 2002, just four months

from now. For the following reasons, I expect that granting the

defendants’ motion to implead would result in at least a two year

delay.

7 The third-party complaint introduces a variety of new claims

that are likely to demand significant discovery. They are also

certain to raise complex legal issues. For instance, the

defendants’ claims involve the sale of finning machines from

Unifin, a Canadian company, to the defendants’ predecessor, an

American company. It is not clear whether the sales were subject

to the Uniform Commercial Code or to Canadian law.2 Accordingly,

the third-party claims raise complex choice of law issues. In

addition, at least some of the third-party claims are subject to

obvious motions to dismiss and motions for summary judgment.

Even assuming the litigation would proceed in a straightforward

manner, significant additional time would be necessary to

accommodate new discovery and briefing efforts.

Moreover, Unifin’s location in Canada would create

complexities likely to cause delay. For example, obtaining

service of a foreign corporation frequently takes 6-12 months.

In addition, the time and effort necessary to schedule

depositions of current and former employees of a foreign

corporation often exceed the time and effort ordinarily required

2 The record indicates that the sale of one of the finning machines from Unifin to the defendants’ predecessor was FOB London, Ontario and had no warranties. See Document n o . 3 8 , Exhibit C .

8 to depose witnesses.

Furthermore, as I will note in a forthcoming order on

discovery, these defendants and their counsel have engaged in

discovery delays and abuses throughout the course of this case.

Therefore, the defendants’ litigation tactics likely would cause

additional delays beyond those expected as a result of the new claims.3

The plaintiff has sustained grievous injuries and deserves

his day in court in early 2002. Because the third-party

complaint would delay the plaintiff’s efforts to fully prosecute

his case, the defendants’ motion must be denied. See Venuti v .

Riordan,

(1st Cir. 1983)(no abuse of discretion in

failing to join a third-party defendant under Fed. R. Civ. P.

14(a) where joinder would have meant added delay for the

plaintiff).

3 Since the defendants removed this case to this court, they have engaged in delaying tactics. Defendants and their counsel have fought straightforward discovery and, despite knowledge, have released discovery responses piecemeal. In addition, they have filed overwhelming in camera materials and have sought to obfuscate their conduct. They required three attempts to produce meaningful privilege logs and complete answers to interrogatories.

9 3. Prejudice

The plaintiffs have asserted straightforward negligence

claims against the defendants. In contrast, the defendants’

third-party claims are based upon a variety of complex legal

theories that threaten to complicate the case and confuse the

jury. In particular, the third-party claims arising out of an

alleged breach of express and implied warranties of fitness for a

particular purpose and alleged contract breaches would introduce

issues unrelated to those involved in the original lawsuit and

render the case significantly more confusing. Because the third-

party claims would prejudice the plaintiff by transforming a

straightforward case into a complicated and confusing one, the

defendants’ motion must be denied. See United States v .

Dobrowolski,

3 4 , 136 (D.Md. 1954)(district courts have

discretion to deny impleader of third-party actions that would

introduce a controversy unrelated to the plaintiff’s suit and

unduly complicate the case to the plaintiff’s prejudice); Lacey

v . United States,

(D.Mass. 1951)(vacating

third-party complaint that would operate to confuse the original

issues in the case); 6 CHARLES A. WRIGHT, ET AL., FEDERAL PRACTICE

AND PROCEDURE § 1443 (2d ed. 1990)(“Sufficient prejudice to

10 warrant denial of impleader may be present when bringing in a

third party will introduce unrelated issues and unduly complicate

the original suit”).

The plaintiff also would suffer prejudice as a result of the

delay that would occur if I allowed the third-party action to

proceed. As discussed above, granting the defendants’ motion is

likely to delay the trial of the plaintiff’s claims by at least

two years, a result that is unacceptable, particularly in light

of the nature and extent of the plaintiff’s injuries. I f , on the

other hand, the court granted the defendants’ motion, but refused

to continue the trial beyond February 2002, the third-party

defendants would be deprived of an adequate opportunity to

prepare for trial. The prejudice that would occur under either

scenario further warrants the denial of defendants’ motion. See

General Electric C o . v . Irvin,

(6th Cir.

1960); Ahern v . Gaussoin,

7 , 42 (D.Or. 1984).

11 The motion to implead third-party defendants (document n o .

33) is denied.

SO ORDERED.

James R. Muirhead United States Magistrate Judge

Date: October 4 , 2001

cc: Mark A . Abramson, Esq. Debra M. Walsh, Esq.

12