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Deutchman v. Express Scripts

August 11, 2008

JEFFREY DEUTCHMAN AND DEBRA DEUTCHMAN, PLAINTIFFS,
v.
EXPRESS SCRIPTS, INC. AND CENTRAL FILL, INC., DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry United States District Judge

SUMMARY ORDER

DORA L. IRIZARRY, U.S. District Judge

Plaintiffs Jeffrey and Debra Deutchman, both New York citizens, filed this action in New York Supreme Court, Queens County, on July 25, 2007 against defendants, Express Scripts, Inc., a Delaware corporation with its principal place of business in Missouri, and Central Fill, Inc., a Pennsylvania corporation with its principal place of business in Pennsylvania, alleging that defendants negligently filled and refilled Mr. Deutchman's prescription for "lanthanum carbonate" with "lithium carbonate," causing injury to Mr. Deutchman and loss of his "services, support, society, companionship, and consortium" to Mrs. Deutchman. (Compl. at ¶¶ 29.) Defendants removed the case to this court on August 23, 2007, pursuant to 28 U.S.C. §§ 1332 and 1441, and filed their answer on August 30, 2007. On September 26, 2007, defendants requested leave to file a motion, pursuant to Rule 14(a) of the Federal Rules of Civil Procedure, to implead the prescribing doctor, Dr. Heino R. Anto, a New York citizen, as a third-party defendant. At a pre-motion conference held on November 1, 2007, the court granted defendants leave to make their motion. On November 26, 2007, plaintiffs cross-moved to include Dr. Anto as a defendant to the original complaint. For the reasons set forth below, defendants' motion to implead Dr. Anto as a third-party defendant is granted, and plaintiffs' motion to add Dr. Anto as a defendant to the original complaint is denied.

I. Defendants' Motion to Implead Dr. Anto as a Third-Party Defendant

Defendants have moved to file a third-party complaint against Dr. Anto for indemnification and contribution because they believe that Dr. Anto's negligence, rather than their own, is responsible for the damages that plaintiffs allege to have suffered. Rule 14(a) allows a defendant "as third-party plaintiff, [to] 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." Fed. R. Civ. P. 14(a). "But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 10 days after serving its original answer." Id. "The general purpose of Rule 14(a) is to serve judicial economy, discourage inconsistent results, and limit the prejudice incurred by a defendant by removal of the time lag between a judgment against the defendant and a judgment over against a third-party defendant." Int'l Paving Systems, Inc. v. Van-Tulco, Inc., 866 F. Supp. 682, 686 (E.D.N.Y. 1994) (citations omitted).

Defendants moved to serve Dr. Anto more than ten days after they answered the plaintiffs' complaint. As such, the decision to allow the third-party complaint rests with the court. In such situations, the court "must balance the benefits of settling related matters in one suit against the possible prejudice to the plaintiff and the third-party defendant." Id.at 687 (citations omitted). As one district court recently explained:

[T]imely motions for leave to implead third parties should be freely granted . . . unless to do so would prejudice the plaintiff, unduly complicate the trial, or would foster an obviously unmeritorious claim. Relevant factors in determining whether to grant leave to implead include:

(i) whether the movant deliberately delayed or was derelict in filing the motion;

(ii) whether impleading would unduly delay or complicate the trial;

(iii) whether impleading would prejudice the third-party defendant; and

(iv) whether the third-party complaint states a claim upon which relief can be granted.

Nova Products, Inc. v. Kisma Video, Inc., 220 F.R.D. 238, 240 (S.D.N.Y. 2004) (quotation marks and citations omitted). The traditional grounds for allowing a defendant to implead a third party-defendant are indemnification, contribution, or subrogation. Doucette v. Vibe Records, Inc., 233 F.R.D. 117, 120 (E.D.N.Y. 2005). "That said, regardless of the type of claim asserted . . . '[t]he outcome of the third-party claim must be contingent on the outcome of the main claim.'" Id. (citations omitted). Although impleader is proper only when a right to relief exists under the applicable substantive law, "a motion to implead presents a procedural question 'distinct' from the issue of whether a third-party complaint alleges a substantive claim." Smith v. Local 819 I.B.T. Pension Plan,291 F.3d 236, 240 n.2 (2d Cir. 2002) (citing Bank of India v. Trendi Sportswear, Inc., 239 F.3d 428, 437-38 (2d Cir. 2000).

Plaintiffs initially argued that defendants should not be allowed to serve a third-party complaint on Dr. Anto because: (1) defendants deliberately delayed impleading Dr. Anto to gain an unfair advantage; (2) impleading Dr. Anto would unduly delay and complicate the trial; (3) impleading Dr. Anto would prejudice plaintiffs; (4) defendants cannot state a claim upon which relief can be granted against Dr. Anto; and (5) the impleader would destroy diversity of citizenship between the parties. In seeking to amend their complaint to include Dr. Anto as a defendant, however, plaintiffs essentially concede that Dr. Anto's presence in the litigation will not prejudice them or unduly delay or complicate the trial, and that defendants have asserted a viable claim against Dr. Anto. Moreover, a third-party claim for indemnification and contribution falls within the court's ancillary jurisdiction, and may be considered by the court regardless of whether plaintiffs are citizens of the same state as the third-party defendant. Bank of India, 239 F.3d at 436-37.

Plaintiffs' sole remaining argument in opposition to defendants' motion is that plaintiffs would be prejudiced if the court grants defendants' motion, but denies plaintiffs' cross-motion to join Dr. Anto as an original defendant because plaintiffs would not be able to recover damages in the event that a jury found Dr. Anto to be wholly liable for plaintiffs' injury. Plaintiffs' reasoning is circuitous. Any verdict finding that Dr. Anto is wholly liable for plaintiffs' injuries necessarily entails a finding that defendants are not liable. Plaintiffs cannot claim to be prejudiced by the possibility of a jury finding that the parties they chose to sue are not responsible ...


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