Luyster v. Textron, Inc.

266 F.R.D. 54, 2010 U.S. Dist. LEXIS 12266, 2010 WL 537607
CourtDistrict Court, S.D. New York
DecidedFebruary 8, 2010
DocketNo. 06 CV 4166(LMM)
StatusPublished
Cited by7 cases

This text of 266 F.R.D. 54 (Luyster v. Textron, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Luyster v. Textron, Inc., 266 F.R.D. 54, 2010 U.S. Dist. LEXIS 12266, 2010 WL 537607 (S.D.N.Y. 2010).

Opinion

MEMORANDUM AND ORDER

McKENNA, District Judge.

Currently before the Court is a motion by third party defendant and cross-defendant the United States of America (the “Govern[56]*56ment”) to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (the “Rules”), the purported cross-claim brought by defendant and cross-claimant Superior Air Parts, Inc. (“Superior”) against the Government.1 For the reasons set forth below, the Government’s motion is DENIED.

FACTUAL BACKGROUND

The following are certain allegations set forth by Elizabeth Luyster, as executor and administrator of the estates of Alfred W. Zadow and Donna M. Zadow (“Plaintiff’) in the amended complaint (the “Complaint”).2 On May 24, 2005, Alfred Zadow (“Zadow”) was piloting a Cessna R18 aircraft with registration number N756PN and reported engine trouble. (Compl. ¶ 2.) The aircraft crashed, resulting in the deaths of Alfred Zadow and Donna Zadow, his wife and passenger. (Id.) Plaintiff is suing certain entities that, inter alia, played a role in the “design, manufacture, assembly, inspection, testing, distribution, sale, servicing, maintenance, overhaul and/or repair of the subject engine and its component parts.” (Id. ¶ 7.) Plaintiff states that Superior, which is one of the defendants, “is engaged in the business of distributing [Federal Aviation Administration (“FAA”) ] approved replacement and component parts for Lycoming aircraft engines, including, but not limited to, connecting rod bearings, as installed in the subject engine.” (Id.) Plaintiffs claims are based on theories of negligence, strict liability and breach of warranty; Plaintiff also seeks punitive damages. (Id. ¶¶ 6-23.)

For purposes of the present motion, the following facts alleged by Superior in its cross-claim are taken to be true. Prior to the subject crash, Zadow was receiving air traffic control services from air traffic controllers employed by the FAA, an agency of the Government. (Cross-cl. ¶ 3.) Zadow reported to an air traffic controller that the plane was having engine trouble and needed to land. (Id. ¶ 4.) Zadow asked for the location of the closest airport, at which time the aircraft was approximately two miles from Candlelight Farms Airport and over ten miles from Danbury Airport. (Id. ¶¶4-5.) The air traffic controller “informed [Zadow] that the nearest airport was Danbury and provided instructions to fly toward Danbury, including instructions to descend.” (Id. ¶ 6.) Zadow followed these instructions, yet the plane crashed approximately four miles north of the Danbury Airport when Zadow attempted to land in a sports field. (Id.)

PROCEDURAL BACKGROUND

In the underlying action, Plaintiff filed a complaint on June 1, 2006 against the following defendants: Textron Inc., AVCO Corporation (Textron Lycoming Division), and Lycoming Engines. On April 18, 2007, Plaintiff filed an amended complaint that added two defendants: Superior and KS Bearings, Inc. (now known as KS Gleitlager USA, Inc., hereinafter “KS Gleitlager”). Several third party complaints and cross-claims were subsequently filed by various parties.

On October 15, 2008, defendant KS Gleitlager filed a third party complaint against the Government with the permission of the Court. On December 11, 2008, the Government filed its answer.

On December 18, 2008, defendant Superior filed a cross-claim against the Government, alleging that the Government, “through its employee acting within the scope of his employment, was negligent in providing air traffic control services to [Zadow].” (Cross-cl. [57]*57¶8.) Superior claims that “[i]f Superior is held liable for damages to plaintiff ... such liability will have been caused or contributed to by the negligence of Third Party Defendant the United States” (id); and “[therefore, Superior is entitled to contribution and/or indemnification from the United States for any amounts plaintiff may recover against Superior in this action” (id ¶¶ 8, 10). On August 4, 2009, the Government filed the present motion to dismiss with leave of the Court.

DISCUSSION

The Government seeks dismissal of Superi- or’s purported cross-claim because, according to the Government, “it is not a cross-claim, it is untimely, and for insufficiency of service.” (Mot. at 5 (citing Fed.R.Civ.P. 4(i), which provides rules for serving the United States and its agencies, corporations, officers, or employees)). The Government contends that Superior’s cross-claim “is more properly in the nature of a third-party complaint,” and “[a] challenge to the propriety of this claim may be tested through a Motion to Dismiss under Fed.R.Civ.P. 12(b)(6).” (Id at 3 (citing Asher v. Unarco Material Handling, Inc., 2008 WL 130858, at *5 (E.D.Ky. Jan.10, 2008).))

I. Rule 12(b)(6) Motion to Dismiss

On a motion for dismissal under Rule 12(b)(6), a court must accept all non-conclusory factual allegations as true; the claimant “must provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.’ ” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (footnote omitted)).

The Government asks this Court to find that the Government and Superior are not coparties, conclude that Superior’s filing is not a proper cross-claim, and therefore dismiss the claim. (Mot. at 7.) The Government contends that “[i]f Superior’s claim were at all cognizable, it must be pursued through a third-party complaint and not a cross-claim.” (Id. at 8.)

Rule 13(g) Cross-Claims II.

Rule 13(g) provides that “[a] pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action.” Fed.R.Civ.P. 13(g). The Government has not disputed that Superior’s cross-claim arises out of the same occurrence that is the subject matter of Plaintiffs original action. Rather, Superior’s cross-claim is contingent upon Plaintiff obtaining a judgment against Superior. This comports with Rule 13(g), which provides that a cross-claim “may include a claim that the coparty is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.” Fed.R.Civ.P. 13(g).

Although Rule 13(g) permits a cross-claim “by one party against a coparty,” id., the Government asks this Court to conclude that it and Superior are not coparties (Mot. at 7).

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266 F.R.D. 54, 2010 U.S. Dist. LEXIS 12266, 2010 WL 537607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luyster-v-textron-inc-nysd-2010.