UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA
NUNO CASANOVA , P laintif f,
v. Civil Action 05-496 (JM F ) MARA THON CORPORA TION, et al., Defendan ts.

MEMORAN DUM OP INION Currently pendingand re ady

for r esolution are the following motions: 1) De fenda nt Chesapea ke Elec trical Sy stems, I nc.’s Motion to Dismiss C ross-Claims for L ack ofSubjectMatter Jurisdiction and, in the Alternative, f or F ailure to State a

Claim Upon W hich Relief Ma y be Gr anted [#152], 2) L &S Construction’s Motion to St rike Chesa peake Electric Sy stems I nc.’s Moot and Untimely

Motion to Dism iss, Oppositi on to Same in the Alterna tive, and Reque st for Costs and Attorney [’s] Fe es Ne cessitated in Ha ving to Respond to Same ( “L &S’s Mot.”) [#154] , 3) De fenda

nt Chesapeake Elec trical Sy stems, I nc.’s Obje ction to and Motion to S trike Marathon’s Evidence Submit ted in Opposition to C hesape ake’ s Motion to Dis miss (“Chesa peake ’s MTS”) [#162] , and 4) Cross-Claimant Mar athon Corporation’s Motion for Summary J udg ment [#165]
. BACK GR OUND The Court will not herein pr ovide a de tailed re view of the proce dural history of this case
. Suffice it to say

that plaintiff initially

alleg ed var ious claims ag ainst three de fenda nts: 1) Marathon, the g ener al contra ctor, 2) Ca pitol P aving , a subcontra ctor, a nd 3) Chesape akeElectric al, another subcontrac tor and that a s a re sult of a cr oss claim filed by Marathon ag ainst third party

Ft. My er Civil, numerous other subc ontrac tors wer e brought into the suit , alongwith their var ious cross and c ounter c laims. The foc us of this opinion wil l be on the cla ims between defe ndants Marathon and Chesape ake, a nd third party

defe ndant L &S, one of

the additional subcontrac tors that was brought into the suitas a r esult of Marathon’s claim ag ainst Ft. Myer. DISCUSSIO N I
. L &S’s Motion to Strike Chesapeake’s Motion to Dismiss L &S moves to strike Chesa peake ’s motion to dis miss on two bases. First, L &S ar g ues that the motion to dis miss is moot because the cr oss claims have a lrea dy been de emed c oncede d by the Court: “Due to Chesa peake Electric al Sy stems, I nc.[’s] failure to answe r and/or othe rwise file a timely

responsive ple adingto Marathon a nd L& S Construction’s Cross - Claims the court has alre ady

deter mined that leg al liability

with respec t to those claims has bee n conce ded.” L &S’s Mot. at 2. Sec ond, L &S ar g ues that Chesape ake w aived its rig ht to assert any defe nses beca use of its failure either to timely file an a nswer or responsive ple adingor to move this Court for lea ve to file its motion to di smiss. I d. at 3. Chesapea ke counte rs that, pursuant to Rules 12(h)( 2) and ( 3) of the F eder al Rules of Civil Procedur e, “f

eder al cour

ts m ust alway s evalua

te their subjec t matter jurisdiction even if considera ble time has passe d.” De fenda nt Chesapeake Elec trical Sy stems, I nc.’s Reply in Support of its Moti on to Dismiss and Opposition to L &S Construction’s Motion to St rike at 2 (empha sis in original). Chesapea ke’s inter pretation of Rule 12 is corre ct. In its mot ion to dism iss, Chesapeake first argues that this Court lacks subject matter jurisdiction under Rule 12(b)( 1) and that it is fre e

2to make such a n argument at any

time. Memorandum of L aw in Support of De fenda nt Chesapea ke Elec trical Sy stems, I nc.’s Motion to Dismiss C ross-Claims for L ack ofSubjectMatter Jurisdiction and, in the Alternative, f or F ailure to State a

Claim Upon W hich Relief Ma y be Gr anted ( “Chesape ake’ s MTD”) a t 5. Wi thout reg ard to the me rits of Chesape ake’ s argument, the ca se law c lear ly supports the proposition that a court may at any time consider a challeng e to its jurisdiction over the subject matter of a c ase. See Arba

ug h v. Y & H Corp., 546 U.S. 500, 506 (2006) (“ The objec tion that a fede ral c ourt lacks subjec t-matter jurisdiction, see Fe d. Rule Civ. P roc. 12(b)(1) , may be ra ised by

a par ty , or by a cour t on its own ini tiative, at any stag e in the litigation, even af ter trial a nd the entry

of judg ment.”); United States e x rel. Schweizer v. OCE, N.V ., 577 F. Supp. 2d 169, 173 n.2 (D.D .C. 2008) (“F ailure to ra ise ce rtain other de fense s in a pre- answe r motion or answe r re nders them f orfe it, but the Court may

alway s dismiss an ac tion for lack of subject matter jur isdiction.”). I I
. Chesapea

ke’s Motion to Dismiss M arathon’s and L &S’s Cross Claims The g rava men of Chesa

peake ’s motion is t hat the Court lacks jurisdiction over the subject matter of

Mara thon’s and L &S’s c ross claims bec ause the relief they seeks is conting ent upon a findingof liability on Chesapea

ke’s pa rt, a de termination which the Court is y et to make. Chesapea ke’s MTD at 10. L &S counte rs that it is the practice of this Circuit to allow cross claims for inde mnification and c ontribution to go for war d once the underly

ing liability

is deter mined and that the ne ed for judicial economy

argues ag ainst dismis sing the cross c laims at this point in the litigation. L &S’s Mot. at 6. Pursuant to Article I I Iof the United States Constitution, “the judicial power of the United States, shall be vested in one supreme Court, a nd in such infer ior Courts as the Cong ress may

3from time to time ordain and e stablish.” U.S. CONST. art. I I I , § 1. Such power to preside extends only

to “ca ses” a

nd “contr oversies.” I d. § 2. In order to determine whether

there exis ts a
case or controve rsy , the cour ts have de veloped va

rious justiciabilit y

doctrines. Allen v. Wrig ht, 468 U.S. 737, 750 (1984). Two of these doc trines–standingand ripe ness–ar e implicated in the
case at bar
. The fir st doctrine, standing , contains the followingthree elements: First, the plaintiff must have suffe red a n “injury in fac t”-a n invasion of a leg ally

protec ted intere st which is (a) c oncre te and particula rized . . . and (b) “ac tual or imminent, not ‘conjectur al’ or ‘hy pothetical,’ ” . . . Second, ther e must be a c ausal c onnection betwee n the injury

and the c onduct complained of -the injury

has to be “f airly ... trac e[able] to the challeng ed ac tion of the defe ndant, and not ... th[e] result [of] the independe nt action of some third party not before the cour

t.” . . . Third, it must be “likely ,” as opposed to mere ly

“spec ulative,” that the injury will be “re dresse d by a fa vorable decision.” Lujan v. Def

ender s of Wildl ife, 504 U.S. 555, 560 (1992) (interna l citations omit ted). In other words, “[t]he injury

alleg ed ca

nnot be conjec tural, hy

pothetical, re mote, speculative or abstra ct; it must have oc curr ed or be cer tainly impending.” Ass’n of Admin. L aw Judge s v. U.S. Office of Pers. Mg mt., 533 F. Supp. 2d 155, 158 (D.D.C. 2008) (c iting Na t’l Trea sury

Employ ees Union v. United Sates, 101 F .3d 1423, 1427 (D.C. Cir. 1996)). A r elated c oncept is that found in the second r eleva

nt doctrine, that of r ipeness, which r equire s an examination of the “f itness of the issues for judicial de cision and the ha rdship to the parties of

withholding cour

t consideration.” Abbott L abs. v. Ga

rdner , 387 U.S. 136, 149 (1967). “[I ]t s basic rationale is to prevent the courts, throug h avoidanc e of pr emature adjudication, fr om entang ling themse lves in abstrac t disag ree ments over a dminist rative policie s, and also to protec t the ag encie s from judicial interfe renc e until an administrative dec ision has been f ormalized and its effe cts felt in a c oncre te
4way

by the cha lleng ing pa

rties.” I d. at 148-49. Althoug h claims are not ripe for adjudication if they are conting ent upon future events, see Thomas v. Union Carbide A g ricultural Produc ts Co., 473 U.S. 568, 580-81 (1985), “ if a thre atene d injury is sufficiently

imminent to establish standing , the constitutional require ments of the ripe ness doctrine will necessa rily be satisfied.” Nat’l Tr easur

y Employ ees U nion, 101 F.3d at 1428. L &S’s a nd Marathon’s claims for inde mnification and c ontribution are, by their ver y nature , conting ent upon future events be cause they wer e asse rted a s derivative c ross claims ag ainst Chesapea

ke as a result of plaintiff’ s orig inal claims ag ainst Chesapea ke. While the court of appe als for this Circuit has not y et spoken to the issue, other Circuits have c oncluded that a claim for inde mnification premised on a potential liability

to a third party

is not just iciable unde r Article I I I . Armstrongv. Ala. Power Co., 667 F.2d 1385, 1388-89 ( 11th Cir. 1982); A/S J
. Ludwig Mowinckles Rede ri v. Tidewater Const. Corp., 559 F.2d 928, 932 (4th Cir. 1977); Cunningham Bros., Inc. v. B ail, 407 F.2d 1165, 1169 ( 7th Cir.), cer t. denied, 395 U.S. 959 (1969). See C.H. Heist Caribe Corp. v. Am. Home Assuranc e Co., 640 F.2d 479, 483 ( 3d Cir. 1981). Ac cord: Parde e v. Consumer Portfolio Servs., Inc., 344 F . Supp. 2d 823, 836 (D.R.I
. 2004) (“ Aptly , fede ral c ourts in other jurisdictions have r outinely found that indemnity

claims
are unripe until the alleg ed indemnitee’ s liabilit y has bee n fix ed by

a judg ment or settlement.”) ; Companion Assurance Co. v. Alliance Assura nce Co., 585 F . Supp. 1382, 1385-86 (D.V.I
. 1984); UNR Indus. I nc. v. Am. Mut. L iab. I ns. Co., 92 B.R. 319, 325-28 (N.D . I ll. 1988). There is a perf

ect c oincidence betwee n the applica tion of this principle and this Court’s obligation to apply

District of Columbia law in this diversity action. Erie R. Co. v. Tompki ns, 304 U.S. 64 (1938). As I have stated in another

opinion: “Whi le there appea rs to be no District

5of Columbia authority prec isely on point, there a

ppear s to be a g ener al rule that an indemnitor cannot be sued until the indemnitee is first held liable. 42 C.J .S. I ndemnity § 54 (2005) (‘Ge nera lly , ... an indemnitee is not entitled to rec over unde r the a g ree ment until he has made a n actua l pay

ment or has other

wise suffe red a

n actua l loss.’).” Disability Rights Council of Gre ater Wash. v. W ash. Metro. A rea Transit Auth., No. 04-CV- 498, 2006 WL1102767, at *2 (D.D .C. Apr. 26, 2006). A s noted in that opinion, a claim for inde mnification does not ac crue until the party seekingindemnification is held liable and makes a pa y ment. I d. More spe cifica lly , in the
case cited in Disability

Rights the D.C. Court of Appe als stated: The c ounterc laim for indemnification was proper ly dismiss ed beca use that ac tion is premature. The District has not y et paid any money , and while it could have filed a c ross claim for indemnity

or contribution in the first action under GS Civi l Rule 13(f), it fa iled to do so. There fore , we think the g ener al rule that the rig ht to sue for indemnific ation (abse nt a spec ific contra ct for inde mnity to the contra ry ) ac crue s when pa

y ment has bee n leg ally

made by the indemnitee applies he re. 42 C.J.S Indemnity § 25 (1944). District of Columbia v. D.C. Transit Sy s., I nc., 248 A.2d 184, 186 ( D.C. 1969). I f this Court were to enterta in the indemnity and contr ibution claims, the result in this
case would be entire ly

differ ent from the r esult had the c ase be en filed in the Super ior Court, for this Court would be entertaininga ca se that the Superior Court would dismi ss. That result is, simply put, impossi ble. In Hanna v. Plumm er, 380 U .S. 460 (1965), the Supreme Court stated: Erie a nd its proge ny

make c lear

that when a

fede ral c ourt sitting in a diver sity

case is face d with a question of whe ther or not to apply state law, the importance of a state rule is indeed r eleva nt, but only in the context of asking whether application of the rule would make so important a dif

fer ence to the char acte r or r esult of the litigation that fa ilure to enfor ce it would unfa irly discriminate ag ainst citiz ens of the f

orum State, or whe ther a

pplication of the rule would have so important an e ffe ct upon the for tunes of one or both of the litiga

nts that failure to e nforc e it would be likely to cause a plaintiff to choose the fe dera l court.

6I d. at 468 n.9. That this Court would enterta in an indemnity action prior to judg ment ag ainst the indemnitor while the Superior Court would not first discriminates a g ainst District of Columbia residents in favor of out of state residents in diversity actions. Out of state residents c ould press such a c laim in this Court in diversity actions while District of Columbia re sidents could not press such a

claim in Superior Court. Moreove r, plaintiffs who se ek to pre ss an indemnity or contribution action prior to judg ment would cer tainly choose this Court over the Superior Court if they could. I t theref

ore f ollows that this C ourt must follow the principle ar ticulated in the D.C. Transit Service s case and dismiss the indemnity and contr ibution claims by both Marathon and L &S as pr emature
. I I
. Marathon’s Cross Claims Based on Ne g lige nce a nd Br eac h of Contrac t State Claims Upon Which Relief Can be G rante d and Chesape ake Will Be D eeme d to have Admitted Them. Unlike L &S, which only

cross c laims for indemnity or contribution, Mara

thon also presse s cross cla ims for neg lige nce ( Count I ) and B rea ch of Contra ct (Count I I ). De fenda nt Marathon Corporation’s Cross-Claim Ag ainst Defe ndant Chesape ake E lectric al Sy stem, I nc. [#10-2] . I n Count I , Marathon alleg es that Chesape ake ha d a duty to Marathon to saf

ely install the wire that struck plaintiff but bre ache d that duty and, as a result, “Ma

rathon ha s sustained damag es in beingrequire d to defe nd the instant lawsuit.” I d. ¶ 8. I n Count I I , Marathon alleg es that it and Chesapea

ke ente red into a c ontrac t pursuant to which “Che sapea ke agree d to install, monitor, inspect, maintain, and re pair” the line that struck Casa nova. I d. ¶ 10. B eca

use of the brea ch of that contrac t, Marathon “ demands judg ment ag ainst co-de fenda nt Chesapeake for money damag es, plus interest, costs, and r easona ble attorne y ’s fe es.” I d., ad damnum clause at pag e 3. Thus, Marathon is claiming that due to Chesapeake’s ne g lige nce, it has sustaine d damag es “in be ing r equire d to defe nd the instant lawsuit.” Surely , claims for ne g lige nce a nd
7brea ch of c ontrac t state claims upon which r elief c an be grante d. They cannot be descr ibed as premature since they

speak of damag es that have alre ady been suf fer ed and a

re be ing suf

fer ed. I n the ordinar

y case , those claims would proc eed to tria l but Ihave a lrea dy conclude d that Chesapea

ke must be dee med to have c oncede d the claims made ag ainst it by Marathon and L &S. Casanova

v. Marathon Corp., 246 F.R.D. 376, 380 (D.D .C. 2007). Ihave r eviewe d that opinion and rea liz ed that my ref usal to rec onsider my

initial decision that refuse d to permit Chesapea ke to file its answe rs was pr emised upon my perc eption that the conc ession might not
ever prejudice Chesapea

ke bec ause Ma

rathon a nd L &S could se ek indemnification only if they
wer e found liable to Casanova. I d. at 380. I appre ciate that if Chesapea ke ca nnot defe nd itself ag ainst Marathon’s claims for ne g lige nce a nd brea ch of c ontrac t, Iwill have to enter judgme nt on those claims and turn to the que stion of damag es. I see nothingin that conseque nce that would cause me to revisit my decision that Chesape ake’ s failingto file its answers to the c rossclaims was not justified by excusable neg lect and the ref ore Chesa peake will be deeme d to have
conce ded Mar athon’s cr oss claims for ne g lige nce a nd brea ch of c ontrac t. I I I
. Chesapea

ke’s Motion to Strike Marathon’ s Opposition Evidence Ihave a lrea dy

conclude d that statement of a worke r, that wa s ref

ere nced by

L iberto Nunes, who told Nune s that he had dr opped the c able that mig ht have hit Casanova is not hear say as to Chesape ake. Ca sanova v. Ma rathon Corp., 570 F . Supp. 2d 53, 56-57 (D.D.C. 2008). The motion will theref ore be denied, a lthough g iven the dismissal of the indemnity and contribution claims and my deter mination that Chesapeake may not offer a def ense to Counts I and I Iof Mar athon’s cr oss-claim, that denia l may not have a

ny prac tical sig nificanc e. I V. Marathon’s Motion for Summary J udg ement as to Chesa

peake

8I n its mot ion for summary judgme nt, Marathon a

rgues that the Court has a lrea dy conclude d that by

virtue of Chesa

peake ’s fa ilure to file a timely answe r to Marathon’s crossclaims, “‘Che sapea

ke will be dee med to have c oncede d the claims made by Marathon.’” Memorandum of

Points and Authorities in Support of Cross-Claimant Marathon Corporation’s Motion for Summary

J udg ment [#165-4] at 3 (quoting Casanova v. Ma rathon, 246 F .R.D. 376, 380 (D.D.C. 2007)) . I n light of the Court’s conclusion above that it lacks jurisdiction over Marathon’s claims for inde mnification and c ontribution, the only claims that rema in at issue there fore are Marathon’s claims for ne g lige nce a nd brea ch of c ontrac t. As to those claims, the Court previously

conclude d that Chesapea ke had f ailed to make a

sufficie nt showing of excusable neg lect in support of its motion for rec onsideration of the Court’s denial of its motion for lea ve to file its untimely

answe rs, noting that the decision wa s “we ll within t he Court’s discretion whe n the only

rea son g iven for Che sapea ke’s f ailure to file timely

answe rs was beca use of its attorney ’s fa ilure to kee p trac k of the de adline for filing those a

nswers.” I d. In its opposition t o Marathon’s motion to di smiss, C hesape ake a rgues that, while Rule 12(a ) provides that a par ty must serve its answe r to a c ross-cla im within 20 day s after beingserve d, under Rule 55, there is no tim e limit to t he filingof an a nswer a s long a s the cross- claimant has not y et soug ht a def

ault judgme nt. Defe ndant Chesape ake E lectric al Sy stems, I nc.’s Me morandum of Points and Authorities in Support of I ts Opposition t o Marathon Corporation’s Motion for Summary J udg ment [#169-3] at 5 n.2. Whil e Mar athon has not y et soug ht a def ault judgme nt, contrar

y to Chesapea

ke’s argument, this in no way

aff ects this Court’s previous findingthat by failing to file a timely
answe r to Marathon’s cross-c laim, Chesapea ke conc eded Ma

rathon’s a lleg ations. Defa ult

9judgme nts are g overne d by Rule 55 of the F eder al Rules of Civil P roce dure. A ccor ding to the Rule, where the claim is for a n amount that it not y et ce rtain, the pre vailing pa rty must apply

to the cour t for a de fault judg ment. Fe d. R. Civ. P . 55(b). The basis for this Court’s previous decision deny

ing Che sapea

ke’s motion for r econside ration wa s the principle, a rticulated in the
case law and L ocal Rule 7(b) , that a par ty ’s fa ilure to timely

file an opposition to a motion seekingrelief

permitted the Court to 1) strike the untimely opposition, 2) deem the motion
conce ded, and 3) g rant the r elief r equeste d. Chesapea ke, 246 F .R.D. at 380 (citingD.A. v. District of Columbia, No. 07-CV-1084, 2007 WL4365452, at *7 (D.D .C. Dec. 6, 2007)
. Additionally , there is the cog nate pr inciple that under Rule 8(a) (6) of

the Fe dera l Rules of Civil Procedur e, alleg ations in a complaint (other than as to dama g es) a

re de emed a dmitted if a responsive ple adingis require d and the a lleg ation is not denied. I f a timely answe r to a complaint is not filed, it has to follow from Rule 8 that all the alleg ations in the complaint are deeme d admitted. Acc ording ly , this Court appropriately struck Chesape ake’ s untimely answe r and now must dee m Marathon’ s alleg ations of neg lige nce a nd brea ch of c ontrac t conce ded. Although Che sapea

ke has not for

mally moved this Court to reconsider its De cembe r 10, 2007 opinion cited above, it also ha s not provided any rea son for the Court to do so, save its argument that, under Rule 55, it should be per mitted to file its answer to Mara thon’s cross-c laim beca use a de fault judg ment has not bee n enter ed ag ainst it. As the Court noted above howe ver, Rule 55 is inapplicable in this situation and therefor e the Court’s pr evious ruling stands. Marathon’s motion for summary judgme nt reg ardingits claims of neg lige nce a nd brea ch of contra ct as a g ainst Chesapea ke will there fore be grante d insofar a s Chesapea ke’s liability

will be

10deeme d conce ded and de nied insofar as there rema in ge nuine issues of mater ial fac t as to the amount of dama g es Mar athon incurr ed. CONCLUSION For the re asons stated he rein, L &S’s motion to strike Chesapea ke’s motion will be denied, Chesa

peake ’s motion to dis miss Marathon’s and L &S’s c ross claims for inde mnity and contribution will be g rante d, Chesapea ke’s motion to strike Marathon’s evidenc e will be denie d, and Mar athon’s motion for summary judgme nt as to Chesapea ke will be g rante d in part and denied in par

t. An Orde r ac companies this Memora ndum Opinion.

Dated: Ma

rch 20, 2009 /S/ J OHN M. F ACCI OL A UNI TED STATES MAGI STRATE J UDGE

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