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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

IN RE:

SUNTERRA CORPORATION,

NO. 2-04-cv-0784-MCE-PAN (JFM)

DEBTORS,

__________________________

SUNTERRA CORPORATION,

Plaintiff,

v. ORDER

PERINI BUILDING COMPANY, INC.

Defendant.

___________________________

AND RELATED CROSS ACTIONS.

----oo0oo----

 This litigation pertains to allegations of defective

performance and materials in the construction of a resort

facility located in South Lake Tahoe, California. 

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Case 2:04-cv-00784-MCE -EFB Document 79 Filed 06/27/06 Page 1 of 4
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 All further references to “Rule” or “Rules” are to the 1

Federal Rules of Civil Procedure unless otherwise noted.

2

Defendant Perini Building Company, the contractor involved in the

construction project at issue, proceeded to file a third party

complaint designed to bring other allegedly responsible parties

into this litigation, including both J.W. McClenahan & Co.

(“McClenahan”) and Savage & Son, Inc. (“Savage”). Both

McClenahan and Savage, through separate but virtually identical

motions, now request leave to file their own third party

complaints pursuant to Federal Rule of Civil Procedure 14(a).1

The proposed Third Party Complaints, which are also nearly

identical, seek to bring the manufacturer and supplier of a

shower valve escutcheon plate into the case as yet another

potentially responsible party for the alleged building defects

underlying this litigation. According to both McClenahan and

Savage, they did not discover the potential involvement of that

manufacturer and supplier (American Standard Companies, Inc. and

Western Nevada Supply Co., respectively) until destructive

testing performed in October of 2005. The identities of said

manufacturer and supplier were not discovered until even later,

and McClenahan and Savage allege that permitting their third

party complaints will assist in the expeditious and complete

resolution of this case by bringing together all responsible

parties. No opposition to either motion has been made, and no

trial date has yet been established. 

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Because oral argument will not be of material assistance, 2

the Court orders this matter submitted on the briefs. E.D. Cal.

Local Rule 78-230(h).

3

Rule 14 permits parties to bring a lawsuit against, or

“implead,” a third party who is not already a party to the

lawsuit in order to transfer liability being asserted against it

in the underlying lawsuit. Specifically, Rule 14 provides:

“at any time after commencement of the action, a defending

party, as a third-party plaintiff, may cause a summons and

complaint to be served upon a person not a party to the

action who is or may be liable to the third-party plaintiff

for all or part of the plaintiff’s claim against the thirdparty plaintiff.” (F.R.C.P. Rule 14(a)).

The District Court has broad discretion in determining the

propriety of a third-party claim under Rule 14. Sw. Admin., Inc.

v. Rozay’s Transfer, 791 F.2d 769, 777 (9 Cir. 1986). Rule 14 th

is to be construed liberally in favor of allowing impleader. 

Lehman v. Revolution Portfolio L.L.C., 166 F.3d 389, 393 (1st

Cir. 1999).

Given the moving parties’ contention that shower valve

escutcheon plates account, at least in part, for the alleged

construction defects at issue in this lawsuit, McClenahan and

Savage would have grounds to file separate lawsuits against the

manufacturer and supplier of said plates for contribution and

indemnity. Accordingly, a third-party complaint against said

manufacturer and supplier is proper, and both motions are

GRANTED. 

2

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4

McClenahan and Savage are therefore granted leave of the Court to

file and serve their proposed third party complaints in this

matter.

IT IS SO ORDERED.

DATED: June 27, 2006

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

Case 2:04-cv-00784-MCE -EFB Document 79 Filed 06/27/06 Page 4 of 4