Mooneyham v. Naturmed, Inc.

          MEMORANDUM OPINION AND ORDER

          CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE

         Before the court is third-party defendant Bactolac Pharmaceutical, Inc.'s (“Bactolac”) motion to reconsider (doc. # 122) filed on February 26, 2018. The court heard oral argument on the motion on March 13, 2018. Because of the nature of this case, a detailed procedural history is necessary to set the stage for resolution of Bactolac's motion to reconsider.

         On March, 20, 2017, plaintiff James Edward Mooneyham (“Mooneyham”), individually and as personal representative for the estate of his late wife Rebecca Jean Marks (“Rebecca Jean”), brought a wrongful death action against NaturMed, Inc. doing business as Institute for Vital Living. In his complaint, Mooneyham alleged that Rebecca Jean died as a direct result of ingesting All Day Energy Greens manufactured and marketed by NaturMed, Inc. (“NaturMed”).

         On April 11, 2017, NaturMed brought a third party complaint against Bactolac alleging that if NaturMed's product was defective, the defect or contaminant was introduced by Bactolac. In its third party complaint, NaturMed asserted claims of indemnity, breach of contract and breach of warranty against Bactolac. On May 16, 2017, Bactolac filed an answer to NaturMed's third party complaint.

         On June 20, 2017, the court entered a Fed.R.Civ.P. 16 scheduling order setting September 1, 2017 as the deadline for filing “[a]ny motions to amend the pleadings and to add parties.” (Doc. # 24). Prior to the expiration of the deadline to file an amendment to the pleadings and after being granted leave by the court, Mooneyham filed amended complaints on August 29, 2017 (doc. # 41) and October 17, 2017 (doc. # 62). On October 23, 2018, the court granted the plaintiff's motion to amend the scheduling order but declined to extend the deadline for filing amendments to the pleadings or for adding parties. See Doc. # 70.

         On January 26, 2018, Mooneyham filed a complaint against Bactolac styled as a “Fed.R.Civ.P. 14(a)(3) complaint” in which he alleges direct claims of wrongful death-products liability, wrongful death-negligence and wantonness, wrongful death and loss of consortium against third-party defendant Bactolac. See Doc.# 113. On February 16, 2018, Bactolac filed a motion to strike the “third amended complaint.” (Doc. # 116). Bactolac alleged that, notwithstanding Mooneyham labeling the complaint a “so-called ‘Rule 14(a)(3)' complaint, ” in actuality, the pleading was an improper amendment to the complaint and was untimely pursuant to the Fed.R.Civ.P. 16 scheduling order. See Id.

         On February 19, 2018, Mooneyham filed a motion for leave to file a third amended complaint which the court granted. Mooneyham then filed his third amended complaint on February 20, 2018. This third amended complaint is not the “Rule 14(a)(3) complaint” earlier filed by Mooneyham. Because Mooneyham had sought leave to file the third amended complaint, the court denied Bactolac's motion to strike the “third amended complaint.” Because of the labels on the motions, the court erroneously understood that Bactolac's “Motion To Strike Or Dismiss Plaintiff's Third Amended Complaint” was directed against Mooneyham's third amended complaint (Doc. # 117) and not his Rule 14(a)(3) complaint. (Doc. # 113) In any event, what happened next serves to rectify the confusion.

         On February 26, 2018, Bactolac filed its motion to reconsider (Doc. # 122) the motion to strike. (Doc. # 116) Bactolac contends that the plaintiff's Rule 14(a)(3) complaint filed on January 26, 2018 is improperly filed, untimely and prejudicial to it. Bactolac argues that the pleading is an amendment to the complaint, was filed without leave of the court, is well beyond the deadline set by the court in its Fed.R.Civ.P. 16 scheduling order, and Mooneyham was dilatory in waiting so late to file his claims against it. Bactolac further asserts that it will prejudiced if it is required to defend new claims against it with less than eleven weeks left in the discovery period. See Doc. # 129 at 8-9.

         DISCUSSION

         Mooneyham contends that Fed.R.Civ.P. 14(a)(3) permits him to “assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.” He is correct about that, and the parties do not dispute that Mooneyham may assert claims directly against Bactolac. See Fed.R.Civ.P. 14(a)(3).

         The parties do not dispute that Mooneyham's direct claims against Bactolac arise out of his claims against NaturMed. The crux of the issue before the court is whether the Rule 14(a)(3) complaint filed on January 26, 2018, is an amendment to Mooneyham's complaint and, therefore, bound by the deadlines set forth in the the court's Fed.R.Civ.P. 16 scheduling order. Or is it is a new pleading which consistent with the Rules can be filed anytime before it is barred by the statute of limitations. Mooneyham argues that the complaint is a new pleading permitted under Rule 14(a)(c) and should not be considered an amendment. Bactolac asserts that the pleading is an amendment that is untimely and filed without leave of the court.

         The applicable Rule itself is unclear as to how the pleading should be characterized. For example, Fed.R.Civ.P. 14(a)(1) permits a defendant as a third-party plaintiff to implead a non-party who may be liable to it, but the rule mandates that the third-party plaintiff “obtain the court's leave if it files the third-party complaint more than 14 days after serving its original complaint.” Rule 14(a)(3) does not, however, contain the same time limitation regarding a plaintiff's right to assert claims against an impleaded third-party defendant.

The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's ...