Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

HOUSE v. KENT WORLDWIDE MACHINE WORKS

August 31, 2005.

WALTER HOUSE and DEBRA HOUSE, Plaintiffs,
v.
KENT WORLDWIDE MACHINE WORKS, INC., KENT WORLDWIDE MACHINE WORKS, WORLDWIDE PROCESSING OF OHIO, INC., WORLDWIDE PROCESS TECHNOLOGIES, WORLDWIDE CONVERTING CO., WORLDWIDE CONVERTING MACHINERY, WORLDWIDE CONVERTING MACHINERY, INC., LEONARD KRIMSKY and ELIZABETH McGIBBON, Defendants. LEONARD KRIMSKY, Third-Party Plaintiff, v. TESA TAPE, INC., Third-Party Defendant.



The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

I. INTRODUCTION

The instant action was brought under the court's diversity jurisdiction. The plaintiffs Walter House and Debra House allege, inter alia, that the defendants designed, manufactured and distributed to third-party defendant Tesa Tape, Inc. ("TTI"), a defective machine, referred to as a "50 machine,"*fn1 whose function was to manufacture adhesive/pressure-sensitive tape. As a result of the defendants' conduct, it is alleged that plaintiff Walter House, while operating the 50 machine during the course of his employment by TTI, suffered serious, severe and grave permanent bodily injuries. As a consequence of that occurrence, plaintiff Debra House contends, among other things, that she suffered the loss of her husband's services and companionship. The plaintiffs seek to recover damages from the defendants through this action.*fn2

  Before the Court is an application by TTI made pursuant to Fed.R.Civ.P. 14(a), 16(e) and/or 12(b)(6) that the third-party complaint made against it in this action be stricken or dismissed because it is untimely and lacks merit and, further, that the complaint filed by plaintiffs Walter House and Debra House be dismissed because there is no basis upon which to find defendant and third-party plaintiff Krimsky, the only defendant participating in the litigation, personally liable to the plaintiffs for the damages they seek to recover in this action.

  The plaintiffs oppose TTI's motion, and Krimsky contends that he is constrained by an earlier ruling of the Court to oppose only so much of the motion as pertains to dismissal of the third-party complaint. TTI's motion is addressed below.

  II. BACKGROUND

  After the plaintiffs and Krimsky had completed their pretrial discovery activities and had prepared a final pretrial order so that they might proceed to trial before your Honor, Krimsky sought and your Honor granted him an opportunity to initiate a third-party action against TTI. Krimsky had previously made a similar application to the undersigned magistrate judge. That application was denied because Krimsky had "failed to learn that a basis might exist upon which to commence a third-party action against [TTI] because he elected not to review pertinent material during the pretrial discovery phase of the litigation that was available for inspection at his adversary's office." The Court determined that, given the age of the case — which had been commenced approximately two years prior to Krimsky's application — and the posture of the case: the existence of a final pretrial order and the readiness of the parties to meet with your Honor so that a date for trial might be fixed, granting Krimsky's application would have been "inappropriate and would [have prejudiced] the plaintiffs as they [sought] to obtain a final resolution to this matter." Krimsky served and filed the third-party complaint, as permitted by your Honor; thereafter, the instant motion was made by TTI.

  In support of its motion, TTI maintains that the evidence educed by the plaintiffs, through their pretrial deposition of Krimsky, establishes that Krimsky was an officer and principal of the corporate defendants and that he did not personally design, manufacture, assemble, install or repair the 50 machine on which plaintiff Walter House alleges he was injured. Therefore, according to TTI, Krimsky cannot be held personally liable, under New York law, for any damages that the plaintiffs might recover in this action. Consequently, TTI contends that Fed.R.Civ.P. 12(b)(6) requires that the plaintiffs' complaint be dismissed.

  The plaintiffs claim that TTI is wrong. They contend that Krimsky's prior conviction for embezzling pension funds from an employee benefit plan, for which he served as the sole trustee, demonstrates that Krimsky so dominated the corporate defendants that it would be appropriate, in the circumstance of the instant case, to find that he was the corporations' alter ego and, accordingly, may be held liable for damages suffered by the plaintiffs.

  For his part, Krimsky alleges that TTI breached a contract it had with him by, inter alia, failing to: (a) repair and maintain the subject 50 machine in a safe manner; or (b) train its employees to operate the 50 machine properly. Therefore, Krimsky contends that TTI must hold him harmless against and indemnify him for any damages recovered by the plaintiffs in this action.

  TTI denies that it entered into a contract with Krimsky or that it is obligated to indemnify him. No copy of the contract Krimsky alleges he had with TTI has been provided to the Court and no mention of that document was made in the final pretrial order previously submitted to the court.

  TTI also contends that the factors noted above, that prompted the undersigned magistrate judge to deny Krimsky's original request to commence a third-party action, when considered with the following facts: (i) that the 50 machine is no longer available; (ii) that the TTI employees who are most knowledgeable about the 50 machine are no longer in TTI's employ; and (iii) that TTI's presence in the action will delay the trial, warrant the court in striking the third-party complaint, notwithstanding the fact that your Honor authorized its filing. Moreover, according to TTI, Krimsky's failure to demonstrate, as required by Fed.R.Civ.P. 16(e), that manifest injustice will attend if the court declines to permit the final pretrial order to be modified to account for impleaded claims, militates against allowing that document to be changed. III. DISCUSSION

  Fed.R.Civ.P. 14(a)

  In its most pertinent part, Fed.R.Civ.P. 14(a) provides the following:
At any time after commencement of the action, a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to this action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff.
  The Rule makes clear that unless the third-party complaint is filed not later than ten days after the original answer is served, a third-party plaintiff must obtain permission from the court to file the third-party complaint. The determination to grant an application to file a third-party complaint is a matter left to the court's discretion. See Leventhal v. Joyner Wholesale Co., 736 F.2d 29, 31-32 (2d Cir. 1984). Where a court has determined to allow a defendant to file a third-party complaint, the impleaded party may, pursuant to Fed.R.Civ.P. 14(a), challenge the "court's prior decision to allow the defendant to implead the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.