UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

THE BUSINESS STORE, INC., : Civil Action No. 11-3662 (FLW)

:

Plaintiff, : 

:

 v. :

: MEMORANDUM ORDER

MAIL BOXES ETC., et al., :

:

Defendants. :

___________________________________ :

This matter comes before the Court upon Motion [Docket Entry No. 19] by Defendants Mail

Boxes Etc., Inc. (“MBE”), seeking leave to file a Third-PartyComplaint against F. Dana Harris and

Jennifer D. Harris (the “Harrises”). Plaintiff The Business Store, Inc. (“TBS”) has filed a brief in

opposition [Docket EntryNo. 21]. The Court has fully reviewed and considered all arguments made

in support of, and in opposition to, MBE’s motion. The Court considers MBE’s motion without oral

argument pursuant to FED.R.CIV.P. 78. For the reasons set forth more fully below, MBE’s motion

is GRANTED.

I. Background and Procedural History

This matter involves a claim by TBS, a former franchisee of MBE, against MBE alleging,

among other things, breach of contract and improper termination. On July 11, 2011, MBE filed an

Answer and Counterclaim against TBS [Docket Entry No. 7] seeking damages for TBS’s alleged

material breaches of certain franchise agreements and a promissory note. 

MBE explains that the Harrises are owners of TBS and are guarantors of TBS’s obligations

under several agreements made between the parties. MBE refers to 3 separate franchise agreements. 

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MBE states that, in conjunction with those agreements, TBS made a promissory note in favor of

MBE in the amount of $65,000. MBE contends that the Harrises provided MBE with a continuing

guaranty of TBS’s obligations under the franchise agreements and the note. Thus, MBE asserts that

the Harrises are directly and independently liable to MBE for TBS’s material breach of, and

obligations under, the franchise agreements and the note. MBE seeks leave of the Court to bring the

Harrises into this matter as third-party defendants. 

MBE addresses the factors considered by courts in this Circuit when ruling upon a motion

to join a non-party pursuant to Rule 14(a). MBE’s Letter Brief in Support of Motion, Docket Entry

No. 19-1 at *1. MBE contends that all factors weigh in favor of granting MBE’s motion. MBE

concedes that it filed this motion 11 days beyond the deadline for filing a motion to join new parties

as set by the Court’s Scheduling Order [Docket Entry No. 16]. MBE explains that the delay was

inadvertent and was caused by the transfer of the case from one attorney in the firm to current

counsel. MBE asserts that the delay in filing this motion will not prejudice TBS and any delay in

the resolution of this matter will be far outweighed by the benefits of judicial economy in

consolidating these matters. MBE points out that discovery in this case is still in its infancy. 

TBS has filed an opposition to MBE’s motion [Docket Entry No. 21]. In it, TBS provides

a history of this case. TBS points out that the Harrises were mentioned in MBE’s previous motion

to transfer the case to California [Docket Entry No. 8] which was filed on July 11, 2011 and denied

on February 16, 2012 [Docket Entry No. 14]. TBS complains that MBE took no action to join the

Harrises until the present motion, despite having ample time and opportunity to do so. TBS reminds

the Court that a Rule 14(a) motion may be denied on the basis of undue delay. TBS’s Brief in

Oppostion, Docket Entry No. 21 at *5 (citing New York v. Solvent Chem. Co., 173 FRD 90

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(W.D.N.Y. 1998)). TBS contends that MBE has not offered any legitimate reason for the delay in

filing and TBS urges the Court to deny on that basis. TBS’s Opposition at *6; see also New York v.

Waterfront Airways, Inc., 620 F. Supp. 411 (S.D.N.Y. 1985). TBS characterizes this motion as a

request by MBE to violate an Order of the Court. 

TBS asserts that, contrary to what has been alleged by MBE, the introduction of a third-party

defendant “completely changes the character of this litigation.” TBS’s Opposition at *6. TBS

contends that additional and increased discovery will be required, that the costs of litigation will

increase, that additional judicial resources will have to be expended and that the likelihood of

settlement will decrease, almost to the point where TBS believes that resolution will not be possible

if the Harrises are made third-party defendants. Id. at *6-7. Finally, TBS contends that the changes

to this case if MBE’s motion is granted would harm TBS. Id. 

MBE has filed a Reply in the form of a letter brief [Docket Entry No. 22]. MBE points out

that, despite TBS’s complaints regarding the delay in filing this motion, the motion was filed only

11 days beyond the deadline set forth in the Court’s Scheduling Order. Further, MBE notes that 

Rule 14(a) permits the filing of third-partyComplaints upon leave of the Court. MBE reiterates that

the 11 day delay in filing the motion was due to the transfer of this case from one attorney in the firm

to another. MBE contends that courts have granted leave to file third-party complaints even when

the motion was untimely under a scheduling Order. MBE’s Reply Letter Brief, Docket Entry No. 22;

see also Hitachi Capital Am. Corp. V. Nussbaum Sales Corp., Civil Action No. 09-731, 2010 U.S.

Dist. LEXIS 30562, at *18 (D.N.J. Mar. 30, 2010). 

MBE asserts that TBS has not offered substantive reasons as to why the motion should not

be granted. Contrarily , MBE argues that it has demonstrated the Harrises’ potential liability for the

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counterclaims asserted by MBE. Thus, MBE believes its motion should be granted.

MBE states that TBS will not be prejudiced by the addition of the Harrises or by the slight

delay their addition may cause. MBE points out that TBS admits that it had notice of MBE’s intent

to join the Harrises. MBE disagrees with TBS regarding the potential affect of the addition of the

third parties on settlement and MBE contends that the likelihood of resolution of this matter is

increased. MBE asserts that joining all interested parties may provoke resolution of the matter

without trial. MBE’s Reply at *2. MBE argues that, contrary to TBS’s position, the interests of

judicial economy are best served by having all related controversies litigated together. Id.; see also

Hitachi, 2010 U.S. Dist. LEXIS 30562 at *7. MBE explains that it intends to seek same or similar

damages from the Harrises as it seeks from TBS in its existing counter-claims. MBE contends that

“[d]elay is a factor that must be weighed against the alternative prospect of two separate trials that

may later need to be coordinated and consolidated. MBE’s Reply at *2 (citing Spencer v. Cannon

Equip. Co., Civil Action No. 07-2437, 2009 U.S. Dist. LEXIS 55370 at *13 (D.N.J. June 29, 2009)). 

II. ANALYSIS

FED.R.CIV.P. 14(a) states that defendants may implead a third-party within 10 days after

serving their original answer or with leave of Court. “A primary purpose of Rule 14 is to avoid

circuity of action and multiplicity of litigation.” Erkins v. Case Power &Equipment Co., 164 F.R.D.

31, 32 (D.N.J. 1995) (superseded on other grounds by statute, N.J.S.A. 2A:15-97 (citing Dysart v.

Marriott Corp., 103 F.R.D. 15, 18 (E.D. Pa. 1984)). “In pursuit of this goal, many courts consider

the following factors when deciding a motion under Rule 14: 1) the timeliness of the motion, 2) the

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potential for complication of issues at trial, 3) the probability of trial delay, and 4) whether the

plaintiff may be prejudiced by the addition of parties.” Id. The Court further notes that, “the basis

for third-party liability is generally either contribution or indemnity.” Id. (citing Anderson v.

Dreibelbis, 104 F.R.D. 415, 416 (E.D. Pa. 1984), aff’d 787 F.2d 580 (3d Cir. 1986)). 

Since an early time in this litigation, all parties were aware of the existence of the Harrises

and of the potential that theymight be joined as third-party defendants at some later point. Although

MBE delayed in seeking leave to join the Harrises, the fact remains that the motion was brought only

11 days past the Court ordered deadline for the filing of such a motion. Therefore, although MBE’s

motion is technically untimely, it was not filed so far beyond the deadline as to cause significant

disruption in the flow of the litigation. In addition, both parties agree that discovery is still in its

infancy; therefore, any increase in discovery due to the Harrises’ addition will have minimal impact

on the parties and will not significantly delay trial. 

Notably, TBS does not object to MBE’s motion on its merits. Rather, TBS merely objects

to the fact that the motion was filed at this point in the litigation. In light of the fact that it appears

that the Harrises are potentially liable for MBE’s counterclaims, the Court finds that any delay their

addition to this litigation may cause will be minimal and will be outweighed by the benefits of

consolidating this matter. Further, in light of the similar damages sought from TBS and the Harrises,

the Court finds that there is little potential for the complication of issues at trial if the Harrises are

joined. 

Finally, although the character of this litigation may change and costs may increase, as TBS

alleges, the Court finds that the change is ultimately for the better because it promotes judicial

economy and any increase in the costs of this litigation will be offset by the potential costs to the

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parties if MBE were to file an entirely separate litigation in orderto seek damages from the Harrises. 

The Court also notes that TBS has not provided any basis for its assertion that the likelihood of

settlement will decrease. 

III. CONCLUSION

For the reasons discussed above, and for good cause shown

IT IS on this 7 day of September, 2012, th

ORDERED that MBE’s Motion for leave to file a Third-PartyComplaint [Docket Entry No.

19] is GRANTED; and it is further

ORDEREDthat MBE shall file its Third-PartyComplaint, no later than September 17, 2012;

and it is further

ORDERED that the Clerk of the Court terminate this Motion [Docket Entry No. 19]

accordingly. 

 s/ Tonianne J. Bongiovanni 

HONORABLE TONIANNE J. BONGIOVANNI

UNITED STATES MAGISTRATE JUDGE

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