United States District Court, S.D. California
ORDER 1. GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
FILE FIRST AMENDED COMPLAINT (ECF NO. 15); AND 2. GRANTING
DEFENDANT'S MOTION FOR LEAVE TO FILE THIRD-PARTY
COMPLAINT (ECF NO. 16)
Cynthia Bashant United States District Judge
James Cunningham filed suit against Defendant Hot Tub
Cruisin, Inc. (“HTC”), alleging he suffered a
severe hand injury while aboard a “hot tub boat”
in San Diego's Mission Bay. (Compl. ¶ 3, ECF No. 1.)
Plaintiff's Complaint pleads claims against HTC for: (1)
negligence, (2) design and manufacturing defect, (3) strict
products liability - failure to warn of defective condition,
(4) negligent products liability, and (5) liability to
passengers under 46 U.S.C. § 30102. (Id.
¶¶ 24- 60.) Presently before the Court are two
MOTION FOR LEAVE TO AMEND
Plaintiff moves for leave to file a First Amended Complaint.
(ECF No. 15.) The proposed First Amended Complaint adds two
defendants who were allegedly involved in the design and
manufacture of the hot tub boat-Pontoon Party Tub, LLC and
Matthew Adam Schubert. (ECF No. 15-3.) Plaintiff explains
that he initially named only HTC as a defendant because he
believed “HTC was the manufacturer of the boat as well
as its operator.” (ECF No. 15.) Hence, Plaintiff seeks
to add Pontoon Party Tub and Mr. Schubert as defendants for
Plaintiff's products-related causes of action-claims 2,
3, and 4. (See ECF No. 15-3.) The First Amended
Complaint also drops HTC from these causes of action.
(See id.) HTC has filed a statement of
non-opposition to Plaintiff's motion. (ECF No. 17.)
general, a court should liberally allow a party to amend its
pleading.” Sonoma Cty. Ass'n of Retired Emps.
v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013)
(citing Fed.R.Civ.P. 15(a)); see also Owens v. Kaiser
Found. Health Plan, Inc., 244 F.3d 708, 712
(9th Cir. 2001). “Courts may decline to grant leave to
amend only if there is strong evidence of ‘undue delay,
bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [or] futility of
amendment, etc.'” Sonoma Cty., 708 F.3d at
1117 (alteration in original) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)).
in light of (i) the broad policy favoring amendments to
pleadings and (ii) Defendant's notice of non-opposition
to Plaintiff's motion, the Court grants Plaintiff's
motion for leave to file a First Amended Complaint.
MOTION FOR LEAVE TO FILE THIRD-PARTY COMPLAINT
HTC moves for leave to file a Third-Party Complaint for
Indemnification against Christine Cunningham. (ECF No. 16.)
In the proposed Third-Party Complaint, HTC alleges that Ms.
Cunningham is the wife of Plaintiff James Cunningham. (ECF
No. 16-2.) HTC claims Ms. Cunningham signed a rental
agreement regarding the hot tub boat that includes a
contractual indemnity clause. (Id.) Thus, HTC seeks
to bring a claim for express contractual indemnity against
Ms. Cunningham that will hold her “liable for all
amounts for which HTC may be held liable to [Mr.
Cunningham].” (Id.) Mr. Cunningham has not
filed an opposition to HTC's motion.
defending party may, as third-party plaintiff, serve a
summons and complaint on a nonparty who is or may be liable
to it for all or part of the claim against it. But the
third-party plaintiff must, by motion, obtain the court's
leave if it files the third-party complaint more than 14 days
after serving its original answer.” Fed.R.Civ.P.
14(a)(1). “Thus, a third-party claim may be asserted
only when the third party's liability is in some way
dependent on the outcome of the main claim and the third
party's liability is secondary or derivative.”
United States v. One 1977 Mercedes Benz, 708 F.2d
444, 452 (9th Cir. 1983). The purpose of this procedure
“is to promote judicial efficiency by eliminating the
necessity for the defendant to bring a separate action
against a third individual who may be secondarily or
derivatively liable to the defendant for all or part of the
plaintiff's original claim.” Sw.
Administrators, Inc. v. Rozay's Transfer, 791 F.2d
769, 777 (9th Cir. 1986).
Ms. Cunningham's alleged liability is dependent on Mr.
Cunningham's claims against HTC, and her liability is
derivate in light of the alleged contractual indemnity
clause. Hence, the proposed Third-Party Complaint satisfies
the requirements of Rule 14(a)(1). Further, allowing the
Third-Party Complaint will promote judicial efficiency, and
Mr. Cunningham has not opposed HTC's motion. The Court
therefore finds granting leave is appropriate. Ms. Cunningham
will still have the opportunity to raise any defense under
Rule 12 to the Third-Party Complaint. See Fed. R.
Civ. P. 14(a)(2)(A). Accordingly, the Court grants HTC's
motion for leave to file its Third-Party
on the foregoing the Court GRANTS Plaintiffs
motion for leave to file his First Amended Complaint (ECF No.
15). Plaintiff shall file his First Amended Complaint no
later than January 24, 2020.
the Court GRANTS Defendant HTC's motion
for leave to file its Third-Party Complaint (ECF No. 16). HTC
shall file its Third-Party Complaint no later than
January 24, 2020.