United States District Court, S.D. West Virginia, Charleston Division
DONNA G. BRANHAM, Plaintiff,
BERLIN PACKAGING, LLC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE
the Court is a Motion for Leave to File a Second Third-Party
Complaint filed by Defendants Berlin Packaging, LLC, and
Michelle Clapham (collectively, “Third-Party
Plaintiffs”). (ECF No. 26.) For the reasons stated
herein, the motion is GRANTED.
Donna Branham (“Plaintiff”) filed this suit
against Third-Party Plaintiffs on September 14, 2018, for
injuries she allegedly suffered in a motorcycle incident on
September 18, 2016. (See ECF No. 1-2.) On October
30, 2018, Plaintiff filed an amended complaint asserting
negligence on the part of both Third-Party Plaintiffs.
(See ECF No. 1-1.) The amended complaint alleges
that Ms. Clapham was driving southbound on Interstate 77 when
she negligently lost control of her vehicle and collided with
a tractor trailer. (Id. at 2-3 ¶¶ 9, 11.)
The tractor trailer overturned and Ms. Clapham's vehicle
turned sideways blocking the right lane of traffic.
(Id. 2-3 ¶ 11.) Immediately thereafter, Scottie
Via-the driver of the motorcycle on which Plaintiff was a
passenger-approached the accident in the right lane and
intentionally “laid the motorcycle down” to avoid
colliding with traffic as a result of the collision.
(Id. at 3 ¶ 12.) Plaintiff suffered bodily
injuries as a result. (Id.)
Plaintiffs properly removed this action to this Court on
November 16, 2018, (ECF No. 1), and timely answered the
amended complaint, (ECF No. 3). After some initial discovery,
Third-Party Plaintiffs filed a third-party complaint against
Mr. Via seeking indemnification or contribution for any
liability attributed to them. (See ECF No. 4.) On
July 8, 2019, Mr. Via was deposed and testified that Howard
Gum was operating his motorcycle slightly ahead and adjacent
to him in the same lane of traffic. (ECF No. 28-3 at 8 (Via
Dep.).) Mr. Via explained that Mr. Gum laid down his
motorcycle to avoid colliding with the traffic directly in
front of him, and, as a result of Mr. Gum's actions, Mr.
Via then laid down his motorcycle to avoid colliding with Mr.
Gum and other vehicles ahead. (Id.) Based upon his
deposition testimony, Third-Party Plaintiffs now seek to
assert the same cause of action against Mr. Gum by way of a
second third-party complaint. (See ECF No. 26-1.)
Plaintiff timely filed a response opposing the motion for
leave to file the third-party complaint, (ECF No. 28), and
Third-Party Plaintiffs timely replied, (ECF No. 31).
to Federal Rule of Civil Procedure 14(a)(1), a defendant may
file a third-party complaint against “a nonparty who is
or may be liable to it for all or part of the claim against
it.” Fed.R.Civ.P. 14(a)(1). “A third-party
complaint therefore must be based upon a theory of derivative
or secondary liability.” Podiatry Ins. Co. of Am.
v. Falcone, No. 3:10-1106, 2011 WL 1750708, at *5 (S.D.
W.Va. Feb. 25, 2011) (citation omitted). A third-party
complaint must be filed within fourteen (14) days of the
filing of the original answer or with leave of the court.
See Fed. R. Civ. P. 14(a)(1). The purpose of this
time limitation “is to prevent delay in the litigation
process, and to encourage the defendant to implead the
third-party as soon as possible after serving the
answer.” Graham v. A.T.S. Specialized, Inc.,
No. 5:06-cv-00243, 2007 WL 1302544, at *2 (S.D. W.Va. May 2,
2007) (internal quotation marks and citation omitted).
asserts that the request is untimely because the joinder
deadline set forth in the Scheduling Order elapsed
on April 1, 2019. (See ECF No. 10.) Further,
Plaintiff contends that Third-Party Plaintiffs knew of Mr.
Gum's alleged negligent conduct since September 2018,
when witness statements were provided to them through their
insurer. Plaintiff argues that Third-Party Plaintiffs had
ample time to further investigate the circumstances giving
rise to Plaintiff's claims and joinder at this stage in
the litigation would cause prejudice to Plaintiff.
all relevant factors of Federal Rule of Civil Procedure
14(a), the Court finds that granting leave to file a
third-party complaint against Mr. Gum is appropriate. First,
Third-Party Plaintiffs have offered a plausible explanation
for the delay in their contention that newly emerging
evidence obtained through discovery forms the basis for the
third-party complaint. Discovery has been promptly conducted
and disclosed by all parties in this case. Statements of Mr.
Via and eyewitnesses Mr. Gum, Kenneth Vaughn and Shauna
Phipps were provided to Third-Party Plaintiffs through their
insurer as early as August 31, 2018. (See ECF No.
28-5 at 2 (Demand Letter).) These statements confirm that Mr.
Gum was driving in front of Mr. Via and that both Mr. Via and
Mr. Gum laid down their bikes to avoid a collision. (ECF No.
28-6 (Via Affidavit) (stating “in an effort to avoid
colliding with the tractor trailer and the other vehicles I
applied my brakes and laid the motorcycle down . . .
.”); ECF No. 28-7 (Vaughan Affidavit) (stating
“Via avoided colliding with vehicles that was blocking
his lane of travel by laying his motorcycle down . . .
.”); ECF No. 28-8 (Phipps Statement) (stating both Gum
and “Via had to lay there [sic: their] bikes down, and
it was either do that or go into the back of a tractor
trailer.”); ECF No. 28-9 (Gum Statement) (stating
“I had to lay my bike down to avoid a collision. [Via]
also laid his bike down, but I didn't know until
afterwards, because he was behind me.”).)
Plaintiff's demand letter similarly states that
“[b]oth Howard Gum and Scottie Via were forced to lay
down their motorcycles to avoid colliding with the back of a
tractor trailer.” (ECF No. 28-5 at 2.) While,
collectively, these witness statements and the demand letter
indicate that both Mr. Via and Mr. Gum laid down their bikes,
they do not contain any information to suggest that Mr. Via
laid down his motorcycle for any other reason than to avoid
colliding with a tractor trailer stopped in the lane directly
ahead. It was not until Mr. Via's deposition on July 8,
2019, that Third-Party Plaintiffs were advised that Mr.
Gum's actions caused or contributed to Mr. Via's
decision to lay down his motorcycle.
any prejudice to Plaintiff by the joinder of Mr. Gum to this
action is minimal. The scope of discovery will not be
significantly increased because the additional party has
already provided a witness statement that may be further
explored through his deposition. Any modifications to the
current scheduling order to accommodate discovery for this
third-party claim would be minor so as not to delay
Plaintiff's opportunity to be heard and her claims
decided. Further, given Third-Party Plaintiffs allege that
Mr. Gum is or may be liable for all or part of
Plaintiff's claims, (see ECF No. 26-1 at 3
¶ 13), the interests of judicial economy require that
the third-party complaint be allowed in order to avoid a
duplicative second action. See Cavender v. Consolidated Rail
Corp., 588 F.Supp. 98, 102 (S.D. W.Va. 1984) (noting
that Rule 14(a) provides that “a third party action may
be maintained against one who is or may be liable to him for
all or part of the plaintiffs claim.”).
finding that Third-Party Plaintiffs' failure to seek
joinder prior to the Court's deadline in the Scheduling
Order was not within their control, that the third-party
complaint will not substantially delay these proceedings and
is necessary for proper adjudication of the rights of all
parties involved, the Motion for Leave to File a Second
Third-Party Complaint, (ECF No. 26), is
GRANTED. Third-Party Plaintiffs must file
their third-party complaint against Mr. Gum on or before
Friday, October 11, 2019, and effectuate service of the
third-party complaint within 30 days of filing it.
IS SO ORDERED.
Court DIRECTS the Clerk to send a copy of
this Order to counsel of record and any unrepresented party.
 Plaintiff argues that the third-party
complaint is not appropriate under Rule 14(a) because
Third-Party Plaintiffs allege that Mr. Gum is solely liable
rather than secondarily liable for Plaintiff's injuries.
However, a fair reading of the proposed third-party complaint
shows that Third-Party Plaintiffs simply seek indemnification
and/or contribution for Plaintiff's claims “based
in whole or in part” on Mr. Gum's actions. (ECF No.
26-1 at 3 ¶ 13.) In effect, they are alleging the Mr.
Gum proximately caused or contributed to Mr.
Via's actions. See Cox v. E.I. duPont de Nemours
& Co., 269 F.Supp. 176, 179 ...