United States District Court, D. Nevada
U.S. BANK, N.A., AS TRUSTEE FOR THE CMLTI ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-AMC3, Plaintiff,
508 BRUNY ISLAND TRUST; WASHBURN CREEK ASSOCIATION, a Nevada non-profit corporation, Defendants. WASHBURN CREEK ASSOCIATION, a Nevada non-profit corporation, Third-Party Plaintiff
ABSOLUTE COLLECTION SERVICES, LLC, a Nevada limited liability company. Third-Party Defendant
D. BOYACK Nevada Bar No. 005229 ADAM J. BREEDEN, ESQ. Nevada
Bar No. 008768 BOYACK ORME & ANTHONY Attorneys for
Defendant Washburn Creek Association.
WASHBURN CREEK ASSOCIATION'S MOTION FOR LEAVE TO
FILE A THIRD PARTY COMPLAINT
NOW, Defendant, WASHBURN CREEK ASSOCIATION, by and through
its counsel of record, Edward D. Boyack, Esq. and Adam J.
Breeden, Esq. of the law firm Boyack Orme & Anthony, and
hereby moves the Court for Leave to File a Third-Party
Complaint Pursuant to Fed. R. Civ. Pro. 14(a)(1).
Factual and Procedural History
an action by Plaintiff, U.S. BANK (hereinafter
“Plaintiff) arising from the nonjudicial
homeowners' association assessment lien foreclosure sale
of the real property located at 508 Bruny Island, North Las
Vegas, NV 89081 (hereinafter the “Property”). The
Plaintiff generally disputes the validity of the sale and
seeks to affirm or restore the status of its first deed of
trust on the Property.
WASHBURN CREEK filed its Answer to Plaintiffs Complaint on
May 30, 2017 [ECF No. 35]. WASHBURN CREEK has been working
diligently to gather and review relevant documents as well as
evaluate the nature of Plaintiff s claims against the HO A.
As a result of the investigation, WASHBURN CREEK has
ascertained that a non-party, Absolute Collection Services,
LLC was the entity that performed the collection and
foreclosure sale activities of which Plaintiff has
complained. Absolute Collection Services, on behalf of
WASHBURN CREEK, was the entity that managed and conducted the
collections and foreclosure process on the Property.
CREEK seeks leave of the Court to file a third-party
complaint against Absolute Collection Services. A copy of the
proposed Third-Party Complaint is attached hereto as
Exhibit A. The nature of the proposed Third-Party
Complaint is for breach of contract, contribution and
indemnity should a defect in the foreclosure process be
found. It is necessary to add Absolute Collection Services to
this case in order to apportion liability to them at trial,
if any is found.
Court's Scheduling Plan [ECF No. 23] provides the parties
until September 1, 2017 to file motions to amend pleadings or
add parties. Thus, WASHBURN CREEK has timely sought this
leave to amend.
to FRCP 14(a)(1),
A defending party may, as third-party plaintiff, 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. But the
third-party plaintiff must, by motion, obtain the court's
leave if it files the third-party complaint more than 14 days
after serving its original answer.
Court has the discretion to grant leave to file the
third-party complaint. Southwest Administrators,
Inc. v. Rozay's Transfer, 791 F.2d 769, 777
(9th Cir. 1986). The Court may grant leave when
doing so would not “disadvantage the existing
action” or complicate or lengthen the trial.
Id. The purpose of Rule 14 “is to promote
judicial efficiency by eliminating the necessity for the
defendant to bring a separate action against a third
individual who may be secondarily or derivatively liable to
the defendant for all or part of the plaintiffs original
claim.” Id. Courts in the Ninth Circuit have
long recognized Rule 14(a) as the proper vehicle through
which contribution may be sought against a non-party.
Employers Ins. of Wausau v. Musick, Peeler &
Garrett, 954 F.2d 575, 577 (9th Cir. 1992) (internal
present case, WASHBURN CREEK seeks to file a third-party
complaint against Absolute Collection Services for indemnity
and contribution to the extent of any damages which the Court
may find against WASHBURN CREEK arising from Absolute
Collection Services' conduct as collection agent acting
on behalf of the association. Absolute Collection Services
may be secondarily or derivatively liable to WASHBURN CREEK
for breach of contract, indemnity, and contribution based on
its actions or omissions in the collection and foreclosure
process of which Plaintiff complains.
economy and interest of justice weigh in favor of grant of
leave. Allowing WASHBURN CREEK to bring Absolute Collection
Services into this action will promote judicial efficiency as
it may eliminate the need for WASHBURN CREEK to bring a
separate action in the future against Absolute Collection
Services. Leave to file the Third-Party Complaint and add a
party is sought within the time contemplated by the
Court's Scheduling Plan [ECF No. 23] which provides the
parties until September 1, 2017 to file motions to amend
pleadings or add parties. Further, Absolute Collection
Service's involvement in this litigation as a party may
facilitate the discovery of relevant documents as Absolute
Collection Services was the entity which handled the
foreclosure sale. Absolute Collection Services is integrally
involved in the events that led to Plaintiffs lawsuit.
WASHBURN CREEK's claims against Absolute Collection
Services will not complicate the existing action by