Gilbert v. CPM Construction

• Court: District Court, D. New Hampshire
• Decided: February 21, 1998
• Docket: CV-96-481-B
• Status: Published

Opinion

Gilbert v. CPM Construction CV-96-481-B 02/21/98

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gregory Gilbert, et a l .

v. C-96-481-B

CPM Constructors

O R D E R

Defendant CPM Constructors has sought permission to file a

third-party complaint for contribution against other alleged

joint tortfeasors. Plaintiff Gregory Gilbert opposes the motion.

In order to resolve this dispute, I must determine whether

defendant's right to bring its contribution claim as a part of

this action is governed by state or federal law.

Section 507:7-f of the New Hampshire Revised Statutes

Annotated purports to limit a party's right to bring a claim for

contribution as part of the same action in which the underlying

claim arises. N.H. Rev. Stat. Ann. § 507:7-f (1997). Although

this general rule contains two exceptions, see, e.g., N.H. Rev.

Stat. Ann. § 507:7-g (I) and (IV) (1997), neither exception is

applicable here. Accordingly, if this case is controlled by New

Hampshire law, defendant cannot bring his contribution claim as

part of this action. Fed. R. Civ. P. 14(a), on the other hand. permits a defendant to add a claim against a third party so long

as the third party "is or may be liable to the third-party

plaintiff for all or part of the plaintiff's claim against the

third-party plaintiff." If defendant's right to bring its third-

party complaint is controlled by Rule 1 4 (a) , defendant is

entitled to bring its contribution claim as a part of this

action. The state and federal rules are thus in "direct

collision," and a choice must bemade between them. Burlington

N.R.R. Co. v. Woods, 480 U.S. 1 ,4-5 (1987).

When there is a direct collision between state law and a

federal rule of civil procedure, the federal rule "must be

applied "if it represents a valid exercise of Congress'

rulemaking authority, which originates in the Constitution and

has been bestowed on . . . [the Supreme] Court by the Rules

Enabling Act, 28 U.S.C. § 2072." I d . at 5. The Rules Enabling

Act provides in pertinent part that a federal court must apply

the Federal Rules of Civil Procedure so long as the rules do not

"abridge, enlarge, or modify any substantive right." 28 U.S.C.A.

§ 2072(b) (West, 1994). Rules that incidentally affect

litigants' substantive rights donot violate this provision if

reasonably necessary to maintain the integrity of the Federal

Rules. Burlington N.R.R. Co . , 480 U.S. at 5. Thus, in

2 circumstances such as these, state law must give way to a federal

rule of civil procedure so long as the rule is constitutional and

affects "only the process of enforcing litigants' rights and not

the rights themselves." I d . at 8; see also Hanna v. Plumer, 380

U.S. 460, 473-74 (1965); Sibbach v. Wilson & Co., 312 U.S. 1, 13-

14 (1941).

In my view, the right to engage in third-party practice

under Rule 1 4 (a) affects only the process of enforcing a

litigant's rights rather than the rights themselves. N.H. Rev.

Stat. Ann. § 507:7-f (I) recognizes a right of contribution

"between or among 2 or more persons who are jointly and severally

liable upon the same indivisible claim." It then goes on to

limit the circumstances under which a contribution claim can be

brought together with the underlying claim. To the extent that

Rule 1 4 (a) permits a contribution claim to be brought in federal

court in the same action as the underlying claim when that same

claim could not be brought in the action if it were in state

court, the rule does not affect the substance of the contribution

right in a way which is prohibited by the Rules Enabling Act. As

neither side argues that Rule 1 4 (a) is unconstitutional, I

conclude that CPM Constructors should be permitted to file its

third-party claim.

3 Defendant's motion to file third-party complaint (document

no. 11) is granted.

SO ORDERED.

Paul Barbadoro Chief Judge February 21, 1998

cc: David H. Bownes, Esg. Paul Koziell, Esg. Dennis Hallisey, Esg.