United States District Court, D. Kansas
MEMORANDUM AND ORDER
E. BIRZER U.S. MAGISTRATE JUDGE.
Court now considers Defendant Sherwin-Williams Company's
Motion for Leave to File Third-Party Complaint and Add
A&L Flooring, LLC and Aaron Vargas as Parties and
Incorporated Memorandum in Support (ECF No.
39). Defendant's Motion states Plaintiff does
not oppose the Motion. Further, the time allowed under the
District's local rules for Plaintiff to file a response
in opposition to the Motion has passed. Thus, the Motion
is ripe for decision. While unopposed motions will
“ordinarily be granted without further notice,
” the court finds additional discussion on
the present Motion necessary to ensure Fed.R.Civ.P. 14 is
complied with and the Court's jurisdiction stays intact.
After analysis, and for the reasons stated below, the Court
GRANTS Defendant's Motion.
Nature of the Case
February 24, 2019, Plaintiff filed a Petition for Damages in
Missouri state court against Defendant, her previous employer
of ten years. Plaintiff alleges discrimination,
harassment, retaliation, and hostile work environment based
upon the Missouri Human Rights Act (“MHRA”),
Title VII,  and the Americans with Disabilities
(“ADA”).As relevant here, Plaintiff claims another
employee, Aaron Gaona Vargas (“Mr. Vargas”),
sexually harassed and assaulted her at work. Plaintiff states
when she told her supervisors about these incidents and
participated in an investigation regarding the same, she was
April 5, 2019, Defendant filed a Notice of Removal removing
this case to the United States District Court for the Western
District of Missouri. In its Notice of Removal, Defendant
states the action is properly removable to federal court
based on federal question and diversity of citizenship
federal question jurisdiction, Defendant states
Plaintiff's claims under Title VII and ADA arise under
federal law, meaning the Court has original jurisdiction over
them pursuant to 28 U.S.C. § 1441(c). Defendant
further states the Court, per 28 U.S.C. § 1367(a), has
supplemental jurisdiction over the state law claims under the
MHRA because they are so related to her federal claims that
they form the same case and controversy. In fact, per
Defendant, the allegations supporting the federal claims and
the state law claims are the same.
states diversity jurisdiction under 28 U.S.C. § 1332(a)
exists because Plaintiff is a citizen of Kansas while
Defendant is a citizen of Ohio, and the amount in controversy
exceeds $75, 000.00.
April 22, 2019, upon receipt of the parties' Stipulation
to Transfer Venue, the United States District Court for the
District of Missouri transferred the case to this
Court.On May 13, 2019, Defendant filed an
Answer. On August 6, 2019, the Court entered a
Scheduling Order, setting September 13, 2019 as the deadline
for the parties to amend pleadings and add
parties. Upon Defendant's unopposed motions,
the Court extended that deadline until October 18,
October 18, 2019, Defendant filed the present
Motion. In the Motion, Defendant seeks leave to
file a Third-Party Complaint against A&L Flooring, LLC,
(“A&L”) and Mr. Vargas, both citizens of
Kansas. In support, Defendant states Mr. Vargas
was not its employee, but rather, he is an employee of
A&L. Defendant and A&L entered into a
Sub-Contractor Agreement for Floor Covering Installation
Services. Pursuant to that Agreement, A&L agreed to
“defend, indemnify, and hold harmless Defendant against
any and all claims, losses, costs, actions, damages,
expenses, and all other liabilities, including but not
limited to claims for injury, pertaining to performance, and
any claim arising out of or resulting from the conduct of
A&L, its agents, and employees.” Thus, because
Plaintiff seeks to hold Defendant responsible for Mr.
Vargas' conduct, and A&L agreed to indemnify
Defendant for the actions of its employees, including Mr.
Vargas, Defendant argues the filing of a Third-Party
Complaint is proper and will further the interest of judicial
Federal Rule of Civil Procedure 14
14(a) of the Federal Rules of Civil Procedure governs when a
defendant may file a third-party complaint. A defendant must
obtain leave of court to file a “third-party complaint
more than 14 days after serving its original
answer.” Here, because more than 14 days have
passed since Defendant served its Answer, Defendant has
appropriately sought leave of Court before filing the
Third-Party Complaint. Additionally, because Defendant filed
the instant Motion on October 18, 2019, it was timely filed.
to grant or deny leave to file a third-party complaint is a
matter within the sound discretion of the
Court. But because the rule is intended to
reduce the multiplicity of litigation, courts construe it
liberally. Unless the filing will prejudice another
party, courts should generally allow the filing “of a
proper third-party action.” The rule, however, does
not permit indiscriminate filing of all third-party
complaints-it only permits a defending party to file a
third-party complaint against “a nonparty who is or may
be liable to [the defending party] for all or part of the
claim against [the defending party].”
typically invoke Rule 14(a) in two situations: (1) where a
tortfeasor is seeking contribution from a joint tortfeasor,
and (2) where an insured is pursuing
indemnification. While the rule may be invoked in other
situations, secondary or derivative liability on the part of
the proposed third-party defendant is crucial and central to
properly invoking Rule 14. The third-party plaintiff must
show this crucial requirement is met before the Court will
permit filing of a third-party complaint.
the Court finds Defendant, as the Third-Party Plaintiff, has
met this requirement. The primary focus of Plaintiff's
Complaint against Defendant is the alleged sexual assault and
harassment she suffered at the hands of Mr. Vargas while
working for Defendant. In its Motion, Defendant states Mr.
Vargas was actually an employee of A&L, and not
Defendant. Defendant further states it has a contract with
A&L wherein A&L agreed to indemnify Defendant for the
actions of its employees, which would include Mr. Vargas.
Also, Mr. Vargas, if responsible for the conduct alleged,
could be considered a joint tortfeasor. Thus, A&L and Mr.
Vargas may be liable to Defendant for all or part of
Plaintiff's claims against Defendant, which fulfills the
purpose of invoking Rule 14.
Plaintiff, in not opposing Defendant's Motion, has not
asserted it would be prejudiced by the filing of the
Third-Party Complaint. The Court can see no prejudice either
as the filing of the Third-Party Complaint will not hinder
Plaintiff's ability to prosecute her claims or seek
discovery from Defendant.
the case is currently in the pre-trial stages, and the trial
date is set approximately a year away. Thus, adding Mr.
Vargas and A&L to the litigation at this stage will not
unduly delay or complicate the trial. And, adding A&L and
Mr. Vargas as parties will save time and costs ...