United States District Court, M.D. Alabama, Eastern Division
JAMES EDWARD MOONEYHAM, individually and as personal representative for the estate of Rebecca Jean Marks, Plaintiff,
v.
NATURMED, INC., and INDEPENDENT VITAL LIFE, LLC Defendants. NATURMED, INC., Third Party Plaintiff,
v.
BACTOLAC PHARMACEUTICAL, INC., Third Party Defendant.
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
...