Connors v. Suburban CV-95-079-M 01/26/96 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Dianne J. Connors, Individually And as Administratrix of The Estate of John M. Lipsev, Plaintiff,
v. Civil No. 95-79-M
Suburban Propane Company, Defendant and Third-Party Plaintiff,
v.
Trianco-Heatmaker, Inc.; Davidson, Gourlev & Acker; and Georae "Tonv" Dube, Third-Party Defendants.
James W. Proctor, Administrator of The Estate of David Edwin Bowers, A Deceased Person, on Behalf of The Estate of The Decedent and of The Decedent's Mother, Janice Bowers Plaintiff,
v. Civil No. 94-403-M
Suburban Propane Company, Defendant.
O R D E R
This Order addresses motions pending in two related cases,
Connors v. Suburban Propane Co. ("Connors"), Civ. No. 95-79-M,
and Proctor v. Suburban Propane Co. ("Proctor"), Civ. No. 95-403-
M. The defendant in both cases. Suburban Propane, filed third- party complaints, pursuant to Fed. R. Civ. P. 14, against three
third-party defendants in Connors, and has moved for leave to
file third-party claims against four parties in Proctor. In
Connors, the plaintiff and two third-party defendants have filed
motions to dismiss Suburban Propane's third-party complaints; in
Proctor the plaintiff objects to Suburban Propane's motion for
leave to file third-party actions. Because the issues raised in
both cases are identical, this single order will address both the
motions to dismiss pending in Connors and Suburban Propane's
pending motion for leave to bring third-party actions in Proctor.
I. FACTUAL BACKGROUND
Both Connors and Proctor arise from the same tragic event.
On March 6, 1993, a water heater allegedly leaked carbon monoxide
gas into a condominium unit, killing David Bowers and John Lipsey
and injuring Lipsey's mother, Dianne Connors. A Suburban Propane
repairman apparently performed repairs on the heating unit
shortly before the incident.
Connors sued Suburban Propane in both her individual
capacity and as administrator of John Lipsey's estate. In a
separate suit, James Proctor sued Suburban Propane as
administrator of David Bowers' estate. Plaintiffs allege that
2 the lethal carbon monoxide leak was a direct result of Suburban
Propane's negligent work on the heating unit.
In Connors, Suburban Propane filed timely third-party
complaints under Fed. R. Civ. P. 14 , asserting causes of action
for contribution against three third-party defendants:
(1) Trianco Heatmaker, Inc. ("Trianco"), the successor in
interest to the designer and manufacturer of the heating unit;
(2) Davidson, Gourley & Acker, Inc. ("Davidson"), the management
company responsible for maintenance of the condominium unit
Connors occupied; and (3) George Dube, a handyman allegedly hired
by Davidson to repair the heating unit. Connors moves to dismiss
Suburban Propane's third-party complaints for failure to state
claims upon which relief can be granted. Fed. R. Civ. P.
12(b)(6); third-party defendants Davidson and Trianco join in
that motion.
In Proctor, Suburban Propane moves for leave to bring third-
party contribution actions against Trianco, Davidson, Dube, and
Hoover Sutton, the owner of the condominium occupied by Connors
when the leak occurred. Proctor objects.
All of Suburban Propane's pending and potential causes of
action for contribution are premised on New Hampshire's
3 statutorily created right of contribution. N.H. Rev. Stat. Ann.
("RSA") § 507:7-f & g (Supp. 1994).
II. DISCUSSION
A. RSA 507:7 and Fed. R. Civ. P. 14
Connors and Proctor argue that Suburban Propane may not
bring third-party actions for contribution in this diversity suit
because New Hampshire law applies, and under RSA 507:7-f & g, a
defendant may not, without the express consent of the plaintiff,
maintain a cause of action for contribution prior to resolution
of the plaintiff's principal action. Neither Connors nor Proctor
consents to the third-party actions.
Federal Rule of Civil Procedure 14, on the other hand,
specifically allows impleader of third parties: "At any time
after commencement of the action a defending party, as a third-
party plaintiff, may cause a . . . complaint to be served upon a
person not a party to the action who is or may be liable to the
third-party plaintiff." Fed. R. Civ. P. 14(a). Rule 14 does
not operate to create causes of action, it merely prescribes a
method for bringing causes of action already recognized under
applicable statutory or common law. Toberman v. Copas, 800 F.
Supp. 1239, 1241-42 (M.D. Pa. 1992).
4 Because these are diversity cases, the rules of decision of
the forum state. New Hampshire, govern potential liabilities
among joint tortfeasors. Erie R.R. v. Tompkins, 304 U.S. 64
(1938). In 1986, the New Hampshire Legislature created the
statutory cause of action for contribution among joint
tortfeasors. N.H. Rev. Stat. Ann. § 507:7-f & g. Section 507:7-
f reads:
[A] right of contribution exists between or among 2 or more persons who are jointly and severally liable upon the same indivisible claim, or otherwise liable for the same injury, death or harm, whether or not judgment has been recovered against all or any of them. Except as provided in RSA 507:7-g, I and IV, the right of contribution may be enforced only by a separate action brought for that purpose.
N.H. Rev. Stat. Ann. § 507:7-f(I) (emphasis added).
With two exceptions, then, a third-party contribution claim
must be brought in an action separate from the principal action.
If judgment has been rendered against a defendant in the
principal action, the cause of action for contribution arises and
"must be commenced [in a separate action] within one year after
the judgment becomes final." N.H. Rev. Stat. Ann. § 507:7-
g(III). If, on the other hand, judgment has not been recovered
in the principal action, one of two conditions must be fulfilled
before a contribution cause of action arises:
5 If no judgment has been rendered, the person bringing the action for contribution must have either (a) discharged by payment the common liability within the period of the statute of limitations applicable to the claimant's right of action against that person and commenced the action for contribution within one year after payment, or (b) agreed while the action was pending to discharge the common liability and, within one year after the agreement, have paid liability and commenced an action for contribution.
N.H. Rev. Stat. Ann. § 507:7-g(III). In each circumstance
described, the defendant must bring the contribution cause of
action in a separate suit, the principal suit having been either
settled or never commenced by the potential plaintiff.
The single exception to the "separate action" rule of
section 507:7-f(I) applicable here is found in section 507:7-
g(IV) :
[Ilf and only if the plaintiff in the principal action agrees, a defendant seeking contribution may bring an action in contribution prior to the resolution of the plaintiff's principal action, and such action shall be consolidated for all purposes with the principal action.
N.H. Rev. Stat. Ann. § 507:7-g(IV)(c) (emphasis added).
Simply stated. New Hampshire law prescribes four ways in
which a defendant may bring a contribution cause of action
against a third-party, but restricts a defendant's ability to
6 bring a contribution suit prior to resolution of the plaintiff's
principal case to those circumstances in which the plaintiff in
the principal action consents. Thus, there appears to be a
direct conflict between Rule 14 and RSA 507:7, since Rule 14
allows a defendant to implead third-parties without the consent
of the plaintiff in the principal action. Resolution of the
pending motions turns on the nature and effect of these competing
rules.
B. Analytical Framework
Any discussion of the law applicable in a diversity case
routinely begins with the rule of Erie R.R. v. Tompkins, 304 U.S.
64 (1938): When sitting in diversity a federal court must apply
the "substantive" law of the forum state according to the Federal
Rules of Civil Procedure. Commercial Union Ins. Co. v. Walbrook
Ins. C o ., 41 F.3d 764, 772-73 (1st Cir. 1994). A corollary to
Erie's rule provides that when a procedural rule contained in a
state statute conflicts with a valid Federal Rule of Civil
Procedure, the Federal Rule will preempt the state procedural
reguirement. Hanna v. Plumer, 380 U.S. 460, 469-71 (1965);
Martinez v. Hospital Presbiteriano, 806 F.2d 1128, 1134 (1st Cir.
1986). Therefore, if the provisions of sections 507:7-f & g are
7 "procedural" in nature, the state's consent requirement is not
applicable in this diversity suit, and Suburban Propane may
implead third-party defendants under Rule 14 without plaintiff's
consent. If, on the other hand, the consent requirement found in
sections 507:7-f & q is "substantive" in nature, it does apply in
this diversity suit, and it directly conflicts with the plain
meaninq of Rule 14.
Where a direct conflict exists between an applicable Federal
Rule of Civil Procedure and a state rule of decision, the Rules
Enablinq Act, 28 U.S.C. § 2072, determines which rule qoverns.
Hanna, 380 U.S. at 463-64; Walker v. Armco Steel Corp., 446 U.S.
740, 750 n.9 (1980) (if state substantive law directly collides
with a Federal Rule of Civil Procedure, Hanna's Rules Enablinq
Act analysis applies). That is. Rule 14 will qovern third-party
impleader for contribution if its application comports with the
Rules Enablinq Act, which reads:
The Supreme Court shall have the power to prescribe qeneral rules of practice and procedure . . . for cases in the United States district courts . . . . Such rules shall not abridge, enlarge, or modify any substantive right.
28 U.S.C. § 2072 (emphasis added). So, to the extent application
of Rule 14 would not abridqe, enlarqe, or modify any substantive
riqht enjoyed by the parties under the applicable state law. Suburban Propane may implead third-party contribution defendants
pursuant to Rule 14 and, in effect, "accelerate" its right to
contribution created by state statute. If, on the other hand,
application of Rule 14 would abridge, enlarge, or modify
substantive rights created by the New Hampshire contribution
statute. Suburban Propane may not rely on Rule 14 to implead the
third-party contribution defendants in derogation of state law.
C. Erie Analysis
The first step in determining whether state law precludes
Suburban Propane from impleading third parties pursuant to Fed.
R. Civ. P. 14 is to decide whether the consent provision of the
state contribution statute applies at all in this diversity
action. If the provision is "substantive" it applies; if it is
"procedural" it is displaced by Rule 14. Erie, 304 U.S. at 78;
Commercial Union Ins., 41 F.3d at 772-73. Of course, the Erie
distinction between "substantive" rules of decision and
"procedural" rules is, necessarily, a somewhat artificial
bifurcation of the law. See Hanna, 380 U.S. at 465-66. And,
although these labels still retain many of their talismanic
gualities, Erie's progeny have largely abandoned any attempt to
separate state laws into these two convenient categories. See Hanna, 380 U.S. at 465-66; Guaranty Trust Co. v. York, 326 U.S.
99, 108 (1945).
Instead, "choices between state and federal law are to be
made not by the application of any automatic 'litmus p a p e r 1
criterion, but rather by reference to the [two] policies
underlying the Erie rule." Hanna, 380 U.S. at 467 (citation
omitted); Commercial Union Ins. Co . , 41 F.3d at 773. The Erie
rule is rooted in part in a policy that declares it unfair for
the character or result of the litigation materially to differ
solely because the suit was brought in federal rather than state
court. Hanna, 380 U.S. at 467; Commercial Union Ins. Co . , 41
F.3d at 773. Erie was also in part a reaction against the
practice of forum shopping that had grown up in response to the
rule of Swift v. Tyson, 16 Pet. 1. Hanna, 380 U.S. at 467;
Commercial Union Ins. Co., 41 F.3d at 773.
Viewed in light of the twin policies underlying Erie, the
court concludes that the consent reguirement of section 507:7-
g(IV)(c) is applicable in this diversity suit. Allowing a
defendant to implead third-party contribution defendants in the
principal action without restriction would materially alter the
character, and perhaps even the outcome, of the litigation, as
compared to the character and outcome were the same case
10 litigated in state court. If third-party defendants were
impleaded, the right to seek contribution would be accelerated,
effectively providing the defendant a present cause of action
that he would not possess in state court. Impleader via Rule 14
would also transform the suit from a relatively simple two-party
negligence action into a complex, expensive, and potentially
confusing multi-party case.
In addition, it is self-evident that allowing defendants to
immediately implead in federal court parties that could not be
impleaded in state court, and to immediately pursue a cause of
action under state law in federal court that could not be pursued
under state law in state court, would encourage forum shopping
through the mechanism of removal in diversity cases. Diverse
defendants with potential contribution claims under RSA 507:7
would be encouraged to remove those cases to federal court to
avoid the substantial limitations placed on such causes of action
by the very state statute creating the cause of action in the
first place. Thus, both policies motivating the Erie doctrine
strongly favor application of section 507:7-g(IV)(c) in this
diversity case.
The decision to apply section 507:7-g(IV)(c) in this case is
also consistent with prior rulings of this court. Richards v.
11 Pizza Time Partners, No. C87-208-L, slip op. at 10 (D.N.H. Oct.
21, 1987) (Loughlin, J.) (holding that "this limitation placed
upon a party's right to seek contribution is no less substantive
than the provision allowing for contribution"); Grant v. Thomsen
Equip. C o ., No. C89-478-L, slip op. at 4 (D.N.H. Nov. 30, 1990)
(Loughlin, S.J.) (applying consent reguirement of section 507:7-
g(IV)(c) in diversity case). In addition, it is consistent with
the decisions of numerous other federal courts applying similar
limits found in other state contribution statutes. See, e.g.,
Andrulonis v. United States, 26 F.3d 1224, 1234 (2d Cir. 1994);
Ragusa v. Streator, 95 F.R.D. 527, 528 (N.D. 111. 1982); Pinzer
v. Wood, 82 F.R.D. 607, 609 (E.D. Tenn. 1979); Brooks v. Brown,
307 F. Supp. 907, 908-09 (E.D. V a . 1969).
The minority of decisions holding otherwise can be
distinguished by their reliance on the labels of "substance" and
"procedure," rather than on an analysis of the twin policies of
Er i e . See Lambert v. Inrvco, Inc., 569 F. Supp. 908, 914 (W.D.
Okla. 1980) (stating simply that "the method of enforcing that
right [to contribution] is procedural"); Riordan v. W.J. Bremer,
Inc., 466 F. Supp. 411, 417 (S.D. G a . 1979) (stating simply that
the rule against impleader in state contribution action "is
procedural and not substantive").
12 That the consent provision of section 507:7-g is applicable
in this case is also supported by comparing section 507:7-
g(IV)(c) with analogous state statutes of limitations, which have
long been held to apply in diversity suits. Guaranty Trust, 326
U.S. at 110; Ragan v. Merchants Transfer & Warehouse Co . , 337
U.S. 530 (1949); Gluck v. Unisys Corp., 960 F.2d 1168, 1180 (3d
Cir. 1992); Vincent v. A.C. & S., Inc., 833 F.2d 553, 555 (5th
Cir. 1987); D'Onofrio Constr. Co. v. Recon Co . , 255 F.2d 904, 907
(1st Cir. 1958). Statutes of limitations, of course, define when
a cause of action dies. After the limitations period runs, a
plaintiff can no longer bring suit. In an analogous manner, the
consent provision of section 507:7-g(IV)(c) defines when a cause
of action for contribution is born; until its conditions are
satisfied, a third-party plaintiff cannot bring suit. This court
"cannot give [a cause of action] longer life in federal court
than it would have had in the state court . . . consistently with
Erie R. Co. v. Tompkins." Ragan, 337 U.S. at 533-34. Like a
state statute of limitations, section 507:7-g(IV)(c) defines the
lifetime of a cause of action and, for that reason as well, is
applicable in this diversity action.
13 D. Rules Enabling Act Analysis
The determination that section 507:7-g(IV)(c) applies does
not end the inquiry into the applicability of Fed. R. Civ. P. 14
to this action. The Erie doctrine cannot operate to invalidate
or render inapplicable a Federal Rule of Civil Procedure. Hanna,
380 U.S. at 470. Rather, the Erie inquiry merely determines to
which "substantive" law the Federal Rules of Civil Procedure will
apply. If, as here, the applicable state law directly conflicts
with the applicable Rule, the validity of the Rule turns on
whether its application is consistent with the Rules Enabling
Act. As noted, that Act provides that the Federal Rules of Civil
Procedure "shall not abridge, enlarge, or modify any substantive
right." 28 U.S.C. § 2072; Hanna, 380 U.S. at 470-71; Stewart
Orq. v. Ricoh Corp., 487 U.S. 22, 27 n.5 (1988) (Rules of Civil
Procedure that conflict with substantive law must be measured
against the Rules Enabling Act requirements).
Finding that section 507:7-g(IV)(c) is "substantive" for
Erie purposes does not render the Rules Enabling Act analysis
superfluous. "The line between 'substance' and 'procedure'
shifts as the legal context changes," Hanna, 380 U.S. at 471,
and neither term "represents the same invariants." Guaranty
Trust, 326 U.S. at 108. Thus, whether a "substantive" right
14 would be affected by application of the Rules of Civil Procedure
is a very different question than whether a state law right is
"substantive" or "procedural." When, as here, the "situation is
covered by one of the Federal Rules, the question facing the
court is a far cry from the typical, relatively unguided Erie
choice." Hanna, 380 U.S. at 471. In fact, the court has before
it a well-developed body of case law to guide its Rules Enabling
Act decision.
Whether Rule 1 4 's charge that a defendant may implead any
party "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," Fed. R. Civ. P. 14(a), does violence to substantive
rights created by Section 507:7-f & g depends, of course, on the
nature of the rights created by the state statute. Courts
considering the validity of Rule 14 as applied to state statutes
creating contribution causes of action have faced two distinct
types of statutes. Some state contribution statutes do not
provide a defendant with a cause of action against a joint
tortfeasor until that defendant has first discharged his pro rata
share of common liability to the plaintiff. See discussion infra
part II.D.l. Other statutes allow a defendant to bring an action
for contribution against a joint tortfeasor only upon a i oint
15 judgment in favor of the plaintiff against the tortfeasors. See
discussion infra part II.D.2. Rule 14 has consistently been held
to have different effects on substantive rights depending on
which of these two types of contribution statutes is being
applied.
1. Contribution Conditioned Upon Discharge of Common Liability
When a state contribution cause of action is conditioned
only upon the original defendant discharging common liability to
the original plaintiff. Rule 14 has been held to permit impleader
of third-party defendants. Used in this manner. Rule 14
"accelerates" the defendant's contribution cause of action
against third-party defendants consistently with the Rules
Enabling Act. See 6 Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure § 1451 (1990); 3 James W. Moore et
al., Moore's Federal Practice 5 14.08 (2d ed. 1995); Jack H.
Friedenthal et al.. Civil Procedure § 6.9 (1985); Andrulonis v.
United States, 26 F.3d 1224, 1234 (2d Cir. 1994); Williams v.
Ford Motor Credit Co., 627 F.2d 158, 160 (8th Cir. 1980); United
States Surgical Corp. v. John K. Pulsifer & Co . , 119 F.R.D. 18,
20 (D. Md. 1988); Holzhauser v. Container Corp. of A m . , 93 F.R.D.
837, 839-40 (W.D. Ark. 1982); Lambert v. Inrvco, Inc., 569 F.
16 Supp. 908, 914 (W.D. Okla. 1980); Jeub v. B/G Foods, Inc., 2
F.R.D. 238, 241 (D. Minn. 1942).
A contribution cause of action conditioned upon discharge of
common liability grants the third-party defendant the right not
to be held liable for the loss of another defendant until that
loss has actually been incurred. In apparent derogation of that
right. Rule 14, by its terms, would allow a defendant to implead
a party "who is or may be liable," clearly contemplating the
present enforcement of conditional or even inchoate rights.
Wright & Miller, supra, at § 1451.
Yet, if impleader is allowed via Rule 14, thereby
"accelerating" contribution actions under such state laws, any
prejudicial effect on a third-party defendant's state-created
right to be free from liability until the third-party plaintiff
has first satisfied the common liability to the plaintiff can be
entirely mitigated through procedural devices available to the
trial judge. "In the event that liability is determined to be
against the third-party defendant, the Court may either grant a
conditional judgment against the third-party defendant that does
not become enforceable until third-party plaintiff satisfies the
original judgment or may permit judgment to be entered but stay
execution until the third-party plaintiff can demonstrate that it
17 paid." Holzhauser, 93 F.R.D. at 839; see also Andrulonis, 26
F.3d at 1234. Through such devices, then, federal courts can
promote the basic purpose of Rule 14 — to determine in a single
proceeding all rights dependent on a common set of facts —
without abridging, enlarging, or modifying the substantive rights
granted by the state contribution statute.
Thus, under state contribution statutes that condition the
cause of action upon discharge of common liability to plaintiff.
Rule 14 can be used to accelerate the defendant's cause of action
for contribution without abridging, enlarging or modifying
substantive rights in violation of the Rules Enabling Act. See
Wright & Miller, supra, at § 1451; Moore, supra, at 5 14.08;
Andrulonis, 26 F.3d at 1234; Williams, 627 F.2d at 160. The
third-party defendant's "status will not be affected." Moore,
supra. Rather, the time when the defendant's claim is presented
will simply be accelerated. I d . (citing cases).
2. Contribution Conditioned Upon Joint Judgment
In contrast to statutes that condition the contribution
cause of action on a defendant's discharge of common liability to
the plaintiff, statutes that allow contribution claims between
joint tortfeasors only upon a joint judgment against those
18 tortfeasors cannot be "accelerated" without necessarily modifying
substantive rights of the parties in violation of the Rules
Enabling Act. See Wright & Miller, supra, at § 1448 (collecting
cases); Moore, supra, at 5 14.11 (collecting cases); D 'Onofrio
Constr. Co. v. Recon Co., 255 F.2d 904, 906 (1st Cir. 1958);
Travelers Ins. Co. v. Busy Elec. Co . , 294 F.2d 139, 145-46 (5th
Cir. 1961); McPherson v. Hoffman, 275 F.2d 466, 470 (6th Cir.
1960) .
Statutes that condition the contribution cause of action on
a joint judgment bestow upon the plaintiff in the principal
action the substantive right to control which parties become part
of the action. D 'Onofrio, 255 F.2d at 906 ("Rule 14 cannot be
used when the injured party has chosen to sue only one of the
tortfeasors severally."); Moore, supra. "[T]he law is said to
allow plaintiff to choose defendants and give plaintiff the right
to sue less than all of the tortfeasors against whom he might
have a valid claim." Wright & Miller, supra. Applying Rule 14
to allow a single defendant to implead other third-party
contribution defendants would abridge the plaintiff's substantive
right to exclude parties he or she does not wish to sue, and that
practice would, concomitantly, "enhance the substantive rights of
the original defendant over what is given by state law."
19 D 'Onofrio, 255 F.2d at 906. When the contribution cause of
action is conditioned upon joint judgment, then, application of
Rule 14 to permit impleader would violate the Rules Enabling Act.
3. New Hampshire Law of Contribution
New Hampshire's statute creating contribution causes of
action does not fall sguarely within either category of
contribution statute previously considered by the courts.
Rather, it is something of a hybrid of the two types of
contribution statutes commonly enacted. Section 507:7-(f), for
example, allows a defendant to bring a contribution cause of
action whether or not judgment has been rendered against that
defendant. But, when, as is the case here, no judgment has been
rendered in the principal action, a defendant may bring a
contribution action against a third-party only if common
liability to the plaintiff has first been discharged through
settlement or some other agreement. § 507:7-(g)(III). If this
were the only condition to bringing a contribution cause of
action. Rule 14 could be invoked, consistently with the Rules
Enabling Act, to "accelerate" the defendant's state-created right
to contribution.
20 New Hampshire's contribution statute does, however, contain
another explicit condition. A defendant may bring an action for
contribution prior to the resolution of the principal action, and
have the third-party action consolidated with the principal
action, "if and only if the plaintiff in the principal action
agrees." N.H. Rev. Stat. Ann. § 507:7-g(IV)(c). Section 507:7-
g(IV)(c) makes explicit the right that is usually implicit in
contribution statutes reguiring joint judgment: The plaintiff
has the substantive right to control which parties may
participate in the litigation. To allow Suburban Propane to
implead third-party defendants under Rule 14 in this case would
necessarily abridge Connors' and Proctor's substantive rights to
exclude third-party defendants, rights they have asserted by
suing only Suburban Propane and by expressly objecting to the
joinder of additional parties.1
Because its use to implead third-party contribution
defendants would violate the Rules Enabling Act (by limiting
1 It is important to note that the state statutory framework also disallows defendants from circumventing the consent reguirement by bringing a simultaneous but separate suit for contribution in state court, removing both suits to federal court, and consolidating the actions once there. As stated above, section 507:7-g(IV)(c) is the only mechanism through which a defendant may bring a contribution action simultaneously with the principal action. Therefore, the plaintiff's consent is always reguired if the actions are to be joined.
21 plaintiffs' and enlarging defendant's substantive rights under
applicable state law). Fed. R. Civ. P. 14 cannot be invoked,
without plaintiffs' consent, to bring a contribution action
premised on N.H. Rev. Stat. Ann. § 507:7-f & g against a third-
party defendant in this diversity action.
III. CONCLUSION
For the reasons stated above. Suburban Propane may not
implead third-party defendants in contribution actions pursuant
to Fed. R. Civ. P. 14. Accordingly, Connors' motion to dismiss
(document no. 19) is granted, Davidson's motion to dismiss
(document no. 23) is granted, Trianco's motion to dismiss
(document no. 25) is granted, and Suburban Propane's motion for
leave to file third-party actions (document no. 11) is denied.
SO ORDERED.
Steven J. McAuliffe United States District Judge
January 26, 1996
22 cc: Philip R. Waystack, Jr., Esq. Paul F. Kenney, Esq. Joseph M. McDonouqh, III, Esq. James E. Owers, Esq. Robert J. Meaqher, Esq. Georqe A. Dube Claude T. Buttrey, Esq. James H. Gray, Jr., Esq.