The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER GRANTING MOTION TO DISMISS
On November 9, 2006, plaintiffs Mantic Ashanti's Cause, suing on behalf of Theodore A. Pinnock and its members, and Theodore A. Pinnock ("Plaintiffs") filed a first amended complaint ("FAC") alleging defendants Cumming Family Trust dated 06-17-83; Elizabeth Anne Tulloch, trustee of the Cumming Family Trust dated 06-17-83; Patricia Lynn McConnell; Santa Ysabel General Store & Antiques, a Nevada Corporation; and Does 1 through 10 ("Defendants") discriminated against individuals with disabilities in violation of the Americans with Disabilities Act, 42 U.S.C. § 12182 et seq. ("ADA"), California Civil Code §§ 51, 52, 54, and 54.1, and California Health & Safety Code § 19995. (Doc. No. 14.)
On December 6, 2007, Cumming Family Trust dated 06-17-83; Elizabeth Anne Tulloch, trustee of the Cumming Family Trust dated 06-17-83; Patricia Lynn McConnell; and Santa Ysabel General Store & Antiques, a Nevada Corporation ("Cumming Plaintiffs") filed a purported cross-claim against Lawyers Against Lawsuit Abuse ("LALA"), Ascervus Enterprises, David W. Peters, and James C. Mason (collectively "LALA Defendants"). (Doc. No. 21.) The purported cross-claim alleges claims for fraud, violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO"), legal malpractice, breach of fiduciary duty, intentional misrepresentation, and negligence. (Id.) On December 28, 2006, LALA Defendants filed an answer. (Doc. No. 28.)
On February 1, 2007, the Court dismissed with prejudice Plaintiffs' complaint against Defendants pursuant to Plaintiffs and Defendants settlement agreement. (Doc. No. 33.) On April 2, 2007, LALA Defendants filed a motion to dismiss the purported cross-claim pursuant to rules 12(h)(3), 12(b)(1), and 12(b)(6) of the Federal Rules of Civil Procedure, and 28 U.S.C. § 1367(c)(2). (Doc. No. 40.) On May 15, 2007, Cumming Plaintiffs filed an opposition to LALA Defendants' motion to dismiss. (Doc. No. 41.)
Cumming Plaintiffs and LALA Defendants declined oral argument regarding LALA Defendants' motion to dismiss. Therefore, the Court exercises its discretion to decide the motion on the papers pursuant to Civil Local Rule 7.1(d)(1). For the following reasons, the Court GRANTS LALA Defendants' motion to dismiss Cumming Plaintiffs' purported cross-claim.
On January 19, 2006, Plaintiffs filed this suit. (Compl. ¶¶ 1-39.) On November 9, 2006, Plaintiffs filed a FAC. (FAC ¶¶ 1-40.) On December 6, 2006, Cumming Plaintiffs filed a purported cross-claim against LALA Defendants. (Cross-cl. ¶¶ 1-80.) The purported cross complaint alleges that Cumming Plaintiffs' costs, expenses, and attorneys' fees in this suit have been increased by LALA Defendants' breach of duties to Cumming Plaintiffs. (Id.) On February 1, 2007, the Court granted Plaintiffs and Defendants joint motion to dismiss Plaintiffs' suit pursuant to the parties' settlement. (Order Dismissal With Prejudice.)
I. Cross-Claim Against LALA Defendants
Cumming Plaintiffs brought their claims against LALA Defendants as a purported cross-claim. A cross-claim is a claim against a coparty which either arises out of the transaction or occurrence that is the subject matter of the original action, or arises out of the transaction or occurrence that is the subject matter of a counterclaim, or relates to property that is the subject matter of the original action. See Fed. R. Civ. Proc. 13(g). "[A] cross-claim may only be asserted against coparties in the action." See 6 Charles Allen Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 1431 (2d ed. 1990). When at the time that a defendant to a case files a purported "cross-complaint" the cross defendants are not parties to the action, the cross-complaint is actually a third-party complaint subject to the requirements of Rule 14(a). See id. at § 1431 n.13; see also Schwab v. Erie Lackawanna R. Co., 438 F.2d 62, 66-67 (3rd Cir. 1971) (claim brought against third-party can not be characterized as a "cross-claim").
None of the LALA Defendants were parties to this suit at the time Cumming Plaintiffs filed their purported cross-claim. Therefore, Cumming Plaintiffs could not bring a cross-claim against LALA Defendants. Rather, any claims Cumming Plaintiffs had against non-party LALA Defendants could only be brought as a third party complaint.
The procedure by which a defending party may join a third party into a suit is called an impleader. See Executive Software N. Am., Inc. v. United States Dist. Court, 24 F.3d 1545, 1564 (9th Cir.1994); see also William W. Schwarzer, et al., California Practice Guide: Federal Civil Procedure Before Trial ¶ 7:301 (The Rutter Group 2007). Impleader is governed by Rule 14 of the Federal Rules of Civil Procedure. See Galt G/S v. Hapag-Lloyd A.G., 60 F.3d 1370, 1374 n.2 (9th Cir. 1995). Rule 14 states that at any time after commencement of the action a defendant may cause a complaint to be served upon a person not a party to the action who is or may be liable to the defendant for all or part of the plaintiff's claim against the defendant. See Fed. R. Civ. Proc. 14(a). "Thus, a third-party claim may be asserted only when the third party's liability is in some ...