United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

JOHN W BAYLESS,

Plaintiff,

 v.

ILLINOIS UNION INSURANCE CO,

Defendants. /

No. C 08-01779 JSW

NOTICE OF QUESTIONS FOR

HEARING

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE

NOTICE OF THE FOLLOWING QUESTIONS FOR THE HEARING SCHEDULED ON

MARCH 5, 2010 AT 9:00 A.M.:

The Court has reviewed the parties’ memoranda of points and authorities and, thus, does

not wish to hear the parties reargue matters addressed in those pleadings. If the parties intend to

rely on legal authorities not cited in their briefs, they are ORDERED to notify the Court and

opposing counsel of these authorities reasonably in advance of the hearing, and to make copies

available at the hearing. If the parties submit such additional authorities, they are ORDERED

to submit the citations to the authorities only, with pin cites and without argument or additional

briefing. Cf. N.D. Civil Local Rule 7-3(d). The parties will be given the opportunity at oral

argument to explain their reliance on such authority. The Court also suggests that associates or

of counsel attorneys who are working on this case be permitted to address some or all of the

Court’s questions contained herein.

//

Case 3:08-cv-01779-JSW Document 71 Filed 03/04/10 Page 1 of 3
United States District Court

For the Northern District of California

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The Court reserves issuing a tentative ruling on Federal Insurance Company’s

(“Federal”) motion to dismiss Illinois Union Insurance Company’s (“Illinois Union”) third

party complaint, and reserves ruling on whether leave to amend shall be granted. 

The parties each shall have fifteen (15) minutes to address the following questions:

1. Rule 14(a) does not require that a third-party defendant be directly liable to the original

plaintiff. Rather, the original defendant may recover judgment from a third-party

defendant even if the third-party defendant has no direct liability to the original plaintiff.

 See Irwin v. Mascott, 94 F. Supp.2d 1052, 1056-57 (N.D. Cal. 2000) (citing Huggins v.

Graves, 337 F.2d 486, 489 (6th Cir. 1964)); Banks v. City of Emeryville, 109 F.R.D.

535, 540 (N.D. Cal. 1985) (citing same). However, “a third-party claim may be asserted

only when the third party's liability is in some way dependent on the outcome of the

main claim and the third party's liability is secondary or derivative” in nature. United

States v. One 1977 Mercedes Benz, 708 F.2d 444, 452 (9th Cir. 1983).

a. Federal’s motion appears to be premised solely on the argument that impleader is

inappropriate because Jon Bayless (“Bayless”) was not a named plaintiff. As set

forth above, that fact is not dispositive. Given that Federal is the moving party,

why should this Court not deny Federal’s motion on the grounds that Federal has

failed to meet its burden in showing that its potential liability is not in any way

dependent on the outcome of the main claim and secondary or derivative in

nature? 

b. What is Illinois Union’s best argument that Federal’s potential liability is

dependent on the outcome of the main claim and secondary or derivative in

nature?

2. Courts also balance the benefits afforded by impleader against a number of factors

including: possible delay and prejudice to other parties, complication of issues at trial,

and whether the third-party claim lacks merit. See Irwin v. Mascott 94 F. Supp.2d 1052,

1056 (N.D. Cal. 2000); Ahern v. Gaussoin, 104 F.R.D. 37, 40 (Or. 1984). In light of the

Case 3:08-cv-01779-JSW Document 71 Filed 03/04/10 Page 2 of 3
United States District Court

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fact that Westwave and Illinois Union have settled, would Federal agree that most of

these factors weigh in favor of impleader?

3. Are there any other issues any party wishes to address?

IT IS SO ORDERED.

Dated: March 4, 2010 

JEFFREY S. WHITE

UNITED STATES DISTRICT JUDGE

Case 3:08-cv-01779-JSW Document 71 Filed 03/04/10 Page 3 of 3