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Because oral argument will not be of material assistance, 1

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

Local Rule 78-230(h). 

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

JOSEPH L. DEXTER, an

individual, SHIRLEY A. DEXTER,

an individual

NO. CIV. S 04-2643 MCE JFM

Plaintiffs,

v. MEMORANDUM AND ORDER

FORWARD AIR, INC., a Tennessee

corporation; STARWOOD HOTELS &

RESORTS WORLDWIDE, INC., a

Maryland corporation; THE

HERTZ CORPORATION, a Delaware

corporation,

Defendants.

----oo0oo----

Through the present action Forward Air, Inc. ("Forward Air")

has moved for leave to add a third party, Randall K. Cook

("Cook"). For the reasons set forth below, Forward Air’s motion

is denied.1

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This action arises out of a multi-vehicle rear end collision

that occurred in the city of Houston, Texas on December 14, 2003. 

Immediately prior to the accident, Cook rented a Nissan Altima

from Defendant Hertz Corporation (“Hertz”). Upon leaving the

rental location and while en route to the Bush International

Airport, Cook’s right front tire suddenly blew out. Cook was

driving in the number 2 lane of a unidirectional on-ramp. He

immediately stopped the vehicle, but remained in the lane of

travel. Upon Cook’s abrupt stop, a taxi, an SUV, and a Sheraton

Hotel courtesy/shuttle van were forced to an immediate stop in

the same lane behind him. A fourth vehicle, a tractor-trailer

owned and operated by Defendant Forward Air, was unable to stop

and rear ended the Sheraton van in which Plaintiff Joseph Dexter

(“Dexter”) was a passenger. Dexter suffered severe injuries in

the accident and, on December 14, 2004, he and his wife filed

this diversity action seeking compensation for personal injuries

and loss of consortium.

Venue and jurisdiction are proper in this Court and a trial

date has been set for July 19, 2006. Non-expert discovery is

scheduled to conclude no later than January 17, 2006. The

present motion was served nearly eight months after Forward Air’s

complaint was served. 

STANDARD

Federal Rule of Civil Procedure 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

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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 third-party plaintiff. 

The third-party plaintiff need not obtain leave to make

the service if the third-party plaintiff files the

third-party complaint not later than 10 days after

serving the original answer. Otherwise the third-party

plaintiff must obtain leave on motion upon notice to

all parties to the action."

Fed. R. Civ. P. 14(a).

Rule 14 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). However, the District Court has broad

discretion in determining the propriety of a third-party claim

under Rule 14. See Southwest Admin., Inc. v. Rozay’s Transfer,

791 F.2d 769, 777 (9th Cir. 1986). The Court is to consider all

relevant factors of each individual case including whether the

delay in seeking leave was excusable and whether the delay would

prejudice a party. In addition, the Court does not abuse its

discretion by denying an application that will disadvantage an

existing action. Id. 

ANALYSIS

Defendant Forward Air served an answer to Plaintiff’s

complaint on March 25, 2005. Forward Air moved to add Cook on

November 4, 2005, nearly eight months after service of their

original answer. As set forth above, Rule 14 provides that a

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party may add a third party anytime after commencement of the

action except that leave of court is required for attempts to

join a third party more than 10 days after service of the

original answer. In addition, this Court’s Pretrial Scheduling

Order provides that no additional joinder of parties shall be

permitted without good cause having been shown. See Amended

Pretrial Sched. Order at 1, August 15, 2005. Because Forward Air

did not seek to add Mr. Cook within ten days of serving its

complaint, it must show good cause for seeking to doing so now.

Forward Air avers that, through recent deposition testimony,

new facts were unearthed giving rise to its need to join Mr. Cook

at this late stage in the litigation. Specifically, Forward Air

claims the following are newly discovered facts: a) Controlling

law would have required Mr. Cook to exit the lane of travel if at

all possible; b) the curb at the scene was approximately 4 1/2

inches in height with a level grassy area immediately opposite

the curb; c) all vehicles came to abrupt stops on the day of the

accident with some being described as “panic stops.”

Plaintiffs, together with Defendant Hertz Corporation

(“Hertz”), object to Forward Air’s motion. Plaintiffs contend

first that Forward Air has made no mention of any potential third

party claim despite its numerous previous filings including its

Answer, the Joint Status Conference Statement, its Motion for

Change of Venue and its objection to this Court’s Pretrial

Scheduling Order. In addition, Plaintiffs argue that Forward

Air’s motion should be denied because the proposed third party

complaint fails to indicate any potential or possibility for

obtaining personal jurisdiction over Mr. Cook. Lastly,

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Plaintiffs assert that permitting Forward Air leave to add Mr.

Cook will cause them undue hardship as this motion comes on the

eve of non-expert discovery cutoff and only six months prior to

trial.

Hertz’ argument mirrors Plaintiff’s argument that the Court

should deny Forward Air’s motion because personal jurisdiction

over Mr. Cook does not exist. In addition, Hertz claims that the

facts alleged as newly discovered by Forward Air unquestionably

existed at the time of the accident and, therefore, could have

been known from the outset. 

As an initial matter, neither the parties nor the Court have

any facts to sustain an argument that personal jurisdiction

against Mr. Cook is lacking. There is no evidence whatsoever

regarding his contacts with this forum. Mr. Cook may have

numerous contacts or he may have none at all. Accordingly,

personal jurisdiction is an insufficient basis to deny Forward

Air’s motion.

With respect to whether good cause exists because Forward

Air only recently unearthed facts that compel it to add Mr. Cook,

the Court finds that Forward Air has failed to meet its burden. 

As noted above, good cause must be shown before the Court will

permit Forward Air leave to add Mr. Cook. Forward Air’s argument

that it is now privy to facts previously unknown is disingenuous. 

The height of the curb and the existence of the flat grassy area

were clearly known at the moment of the accident as well as at

all times thereafter. A simple observation of the area was all

that was required. The suddenness of the stops made by all four

vehicles was, likewise, clearly known at the time of the

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accident. The Texas Transportation Code section cited by Forward

Air as support for its need to add Mr. Cook was enacted in

September, 1995, nearly eight years before this accident. 

Forward Air’s attempt to characterize as obscure these fully

conspicuous facts is unpersuasive.

Lastly, Forward Air has waited until the eve of the nonexpert discovery deadline to bring this motion. Granting Forward

Air’s motion now could arrest the trial’s advancement and result

in additional expense to the parties. These consequences are

unacceptable in light of Forward Air’s failure to justify its

extreme delay.

CONCLUSION

Forward Air has failed to satisfy its burden of showing good

cause for leave to add a third party. Accordingly, its motion is

DENIED.

IT IS SO ORDERED.

DATED: December 15, 2005

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

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