United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
defendant Sally Beauty Supply, LLC (“Sally
Beauty”) has filed a motion to dismiss the third-party
complaint of defendant/third-party plaintiff Dematic Corp.
(“Dematic”) (ECF No. 19) for failure to comply
with the requirements of Federal Rule of Civil Procedure
14(a)(1) and pursuant to Rule 12(b)(6). (ECF No. 30). Dematic
has opposed Sally Beauty's motion to dismiss and filed a
countermotion for leave to amend pleadings (ECF No. 33, 34).
Sally Beauty has replied in support of the motion to dismiss
third-party complaint and in opposition to the countermotion
for leave to amend pleadings (ECF No. 35, 36), and Dematic
has replied in support of its countermotion for leave to
amend pleadings (ECF No. 37).
case arises from an incident that occurred on June 15, 2016,
wherein the plaintiff in the underlying lawsuit, Guisela
Aguirre Guerra, alleged that she was injured while operating
a warehouse conveyor gate designed by Dematic and located at
a warehouse operated by Sally Beauty. (ECF No. 1-1 at 5-7).
Dematic filed the third-party complaint against Sally Beauty
on January 24, 2019, claiming that Sally Beauty had expressly
agreed to indemnify Dematic from all third-party claims
arising from the equipment sold to Sally Beauty and that it
was entitled to an immediate defense from Guerra's
claims. (ECF No. 19 at 3-4).
and third-party practice are governed by Federal Rule of
Civil Procedure 14, which provides that:
“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.”
Fed. R. Civ. P 14(a)(1). On a timely motion, the decision
whether to implead a third-party defendant is left to the
broad discretion of the trial court and will only be reviewed
for abuse of discretion. Sw. Adm'rs, Inc. v.
Rozay's Transfer, 791 F.2d 769, 777 (9th Cir. 1986),
cert. denied, 479 U.S. 1065 (1987);
United States v. One 1977 Mercedes Benz, 708 F.2d
444, 452 (9th Cir.1983), cert. denied, 464 U.S. 1071
(1984). FRCP 14(a)(1) requires a party who wishes to file a
third-party complaint outside of the 14-day window to move
for leave to implead the third-party so that the court may
exercise its discretion in granting or denying the request.
undisputed that no such explicitly titled motion was filed in
this case. Dematic argues that the Court should treat a
stipulation it previously filed as a motion for leave to
implead Sally Beauty. This stipulation was entered by order
of this Court on January 9, 2019, which contained the
following provision: “[d]efendant Dematic Corp. may
file a third-party complaint against Sally Beauty Supply, the
purchaser and owner of the product allegedly involved in
Plaintiff's injury.” (ECF No. 15). Dematic filed
its original answer in this case on August 5, 2018. (ECF No.
3). Dematic did not serve a summons or complaint on Sally
Beauty within 14 days after serving its original answer or
file a timely “motion” for leave to file a
third-party complaint under Federal Rule of Civil Procedure
14(a)(1). However, the stipulation allowing the third-party
complaint was made in apparent good faith shortly after
Dematic discovered reported modifications to the subject
equipment by Sally Beauty. Therefore, the issue is whether
the stipulation between the parties was acceptable as a
substitute for a 14(a) motion and whether the court should
exercise its discretion and allow the third-party complaint.
Dematic did not file a motion for leave to implead Sally
Beauty, the Court reviewed the proposed stipulation and the
terms contained within it and decided to grant it. (ECF No.
15). The fact that Dematic's stipulation was not
explicitly filed as a motion is, at best, a technical
difference. The Court declines to read Rule 14(a) in such a
rigid manner and accepts the stipulation as a substitute for
a 14(a)(1) motion. The purpose of Rule 14(a) is to prohibit a
defendant from impleading a third party without the
Court's permission when the case is underway, and by
filing a stipulation, Dematic certainly sought the
Court's permission to implead Sally Beauty. The Court
accordingly exercised its discretion and granted the
stipulation, allowing Dematic to implead Sally Beauty.
THEREFORE ORDERED that third-party defendant Sally Beauty
Supply, LLC's motion to dismiss (ECF No. 30) is
FURTHER ORDERED that third-party plaintiff Dematic
Corp.'s motion to file an amended complaint (ECF No. 34)
is DENIED as the court finds the existing