Pond v. Majercik

• Court: District Court, D. New Hampshire
• Decided: February 7, 1996
• Docket: CV-94-225-M
• Status: Published

Opinion

Pond v. Majercik CV-94-225-M 02/07/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Patricia Pond, Individually and as Administratrix of the Estate of Scott Pond, Plaintiff,

v. Civil No. 94-225-M

Donald A. Maiercik, and Parker Aviation Enterprises, Inc., Defendants, and John McGrath, Executor of the Estate of Mary Jane McGrath, Defendant and Third Party Plaintiff,

v.

Nathan Pond, Gary Pond, William Batesole, James Parker, Jr., Lebanon Riverside Rotary, an Unincorporated Association, and the United States of America, Third Party Defendants.

O R D E R

In the underlying action, plaintiff, Patricia Pond ("Pond")

filed suit against defendant, John McGrath, Executor of the

Estate of Mary Jane McGrath (the "McGrath Estate"), seeking

damages for the death of her husband, Scott Pond. This court

exercised subject matter jurisdiction on the basis of diversity

of citizenship. The McGrath Estate then impleaded Lebanon

Riverside Rotary ("Lebanon"), invoking Fed. R. Civ. P. 14 and

asserting, among other things, a state law cause of action for contribution. Lebanon now moves to dismiss the McGrath Estate's

third-party contribution action for failure to state a claim upon

which relief can be granted. Fed. R. Civ. P. 12(b)(6). For the

reasons discussed below, Lebanon's motion to dismiss is granted.

I. DISCUSSION

Fed. R. Civ. P. 14 reads: "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 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) .

The McGrath Estate's cause of action for contribution

against Lebanon is premised on New Hampshire's statutorily

created right of contribution. N.H. Rev. Stat. Ann. ("RSA")

§ 507:7-f & g. But, under RSA 507:7-f & g, a defendant may not,

without the express consent of the plaintiff, maintain a cause of

action for contribution against a third-party defendant prior to

resolution of the plaintiff's principal action. N.H. Rev. Stat.

Ann. § 507:7-f(I) & g(IV)(c). Lebanon moves to dismiss the

2 McGrath Estate's third-party contribution action because it fails

to allege the necessary prerequisite of Pond's consent.

Resolution of Lebanon's motion to dismiss turns on the

apparent conflict between Fed. R. Civ. P. 14 and RSA 507:7-f & g.

Rule 14 allows a defendant to implead third parties without the

consent of the plaintiff in the principal action. Section 507:7-

f & g, on the other hand, restricts a defendant's ability to

bring a contribution action before plaintiff's principal action

is resolved to those circumstances in which the plaintiff in the

principal action consents to the contribution action. Pond has

not consented to the McGrath Estate's contribution action against

Lebanon. Therefore, if Fed. R. Civ. P. 14 alone governs the

propriety of bringing a contribution action premised on RSA

507:7-f & g in a federal diversity case, the McGrath Estate's

complaint is properly before this court. But if the consent

provision of RSA 507:7-g(IV)(c) governs here, Lebanon's motion to

dismiss the McGrath Estate's contribution action must be granted.

This court recently addressed that precise issue in Connors

v. Suburban Propane, No. C95-79-M (D.N.H. Jan. 26, 1996)

(McAuliffe, J.). A copy of that order is attached. Connors

presents a detailed discussion of the apparent conflict between

Rule 14 and RSA 507:7-f & g, ultimately holding that the consent

3 provision of New Hampshire's contribution statute governs a

defendant's ability to bring a third-party contribution action in

a federal diversity case. Borrowing heavily from Connors

throughout, this order will briefly outline the reasons why the

McGrath Estate's third-party claim for contribution must be

dismissed for failure to state a claim upon which relief can be

granted.

A. Analytical Framework

When sitting in diversity, a federal court must apply the

"substantive" law of the forum state according to the Federal

Rules of Civil Procedure. Erie R.R. v. Tompkins, 304 U.S. 64

(1938); Commercial Union Ins. Co. v. Walbrook Ins. Co., 41 F.3d

764, 772-73 (1st Cir. 1994). When, however, 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 "procedural" in nature, the statute's consent

reguirement is not applicable in this diversity suit, and the

McGrath Estate may implead third-party defendants under Rule 14

4 without Pond's consent. If, on the other hand, the consent

requirement found in RSA 507:7-f & g is "substantive" in nature,

it both applies in this diversity suit and directly conflicts

with the plain language of Rule 14.

Where an applicable Federal Rule of Civil Procedure directly

conflicts with a state rule of decision, the Rules Enabling Act,

28 U.S.C. § 2072, determines which rule governs. Hanna, 380 U.S.

at 463-64; Walker v. Armco Steel Corp., 446 U.S. 740, 750 n.9

(1980). That is. Rule 14 will govern impleader for contribution

if its application comports with the Rules Enabling Act, which

reads:

The Supreme Court shall have the power to prescribe general 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 abridge, enlarge, or modify any substantive

right enjoyed by the parties under applicable state law, the

McGrath Estate 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

5 statute, the McGrath Estate may not utilize Rule 14 to implead

Lebanon in derogation of state law.

B. Erie Analysis

The first step in determining whether state law precludes

the McGrath Estate from impleading Lebanon 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. The twin policies

underlying Erie - avoiding ineguitable administration of the laws

and discouraging forum shopping, Hanna, 380 U.S. at 468 -

strongly militate in favor of applying the consent provision of

RSA 507:7-g(IV)(c) in this case. If the McGrath Estate were

allowed to bring a contribution cause of action against Lebanon,

the McGrath Estate's right to seek contribution would be

accelerated, effectively providing the defendant a present cause

of action that it would not possess in state court. In addition,

allowing a defendant to pursue a cause of action under state law

in federal court that it could not pursue under state law in

6 state court would undoubtedly encourage forum shopping through

the mechanism of removal in diversity cases.

The decision to apply section 507:7-g(IV)(c) in this

diversity case is also consistent with prior rulings of this

court, Richards v. 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. Co., 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), and 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); Raausa 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. Va. 1969). Thus, both the policies motivating the Erie

doctrine and applicable precedent strongly favor labelling the

consent provision "substantive" and applying RSA 507:7-g(IV)(c)

in this case.

7 C. Rules Enabling Act Analysis

The determination that section 507:7-g(IV)(c) applies here

does not end the inquiry into the applicability of Fed. R. Civ.

P. 14 to this action. The Erie doctrine cannot operate to 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 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). Whether Rule

14'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 RSA

507:7-f & g depends, of course, on the nature of the rights

created by the state statute.

When, as here, the principal action has not been resolved,

RSA 507:7-f & g allows the defendant to bring a contribution cause of action against a third-party defendant "if and only if

the plaintiff in the principal action agrees." N.H. Rev. Stat.

Ann. § 507:7-g(IV)(c). By conditioning the contribution cause of

action in this way, RSA 507:7-g(IV)(c) grants the plaintiff in

the principal action the substantive right to control which

parties may join in the litigation of his or her claim.

D'Onofrio Constr. Co. v. Recon Co., 255 F.2d 904, 906 (1st Cir.

1958) ("Rule 14 cannot be used when the injured party has chosen

to sue only one of the tortfeasors severally."); 3 James W. Moore

et al., Moore's Federal Practice 5 14.11 (2d ed. 1995); 6 Charles

A. Wright & Arthur R. Miller, Federal Practice and Procedure

§ 1448 (1990) ("[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.").

Unless or until Pond expressly consents to the McGrath Estate's

third-party contribution action against Lebanon, Pond has

exercised that substantive right. And to allow the McGrath

Estate to implead Lebanon without Pond's consent would

necessarily abridge Pond's substantive right to exclude Lebanon

as a third-party contribution defendant. Because its application

would violate the Rules Enabling Act, Rule 14 may not be used to bring a third-party contribution action premised on RSA 507:7-f &

g.

The McGrath Estate argues that the preceding argument loses

its force when, as here, the third-party plaintiff has also

impleaded the third-party defendant on other claims not subject

to the consent reguirement contained in the contribution statute.

Dismissing only the contribution claim, the McGrath Estate

correctly points out, will not remove Lebanon from this suit; the

McGrath Estate's other third-party claims against Lebanon

survive. This fact does mean that dismissal now may necessitate

a subseguent, and therefore "inefficient", contribution suit

between the McGrath Estate and Lebanon. It does not, however,

affect the conclusion that application of Rule 14 would violate

the Rules Enabling Act. Nor does it alter the important

federalism and separation of powers concerns embodied in the Erie

rule and the Rules Enabling Act. Thus, Lebanon's motion to

dismiss the McGrath Estate's contribution claim must be granted.

II. CONCLUSION

The McGrath Estate cannot invoke Fed. R. Civ. P. 14, without

Pond's consent, to bring a contribution action premised on N.H.

Rev. Stat. Ann. § 507:7-f & g against Lebanon in this diversity

10 action, because impleading a third-party contribution defendant

would violate the Rules Enabling Act by abridging Pond's

substantive rights under applicable state law. Accordingly,

Lebanon's motion to dismiss the McGrath Estate's contribution

action (document no. 82) is granted.

SO ORDERED.

Steven J. McAuliffe United States District Judge

February 7, 1996

cc: Michael G. Gfroerer, Esg. Jeffrey B. Osburn, Esg. David B. Kaplan, Esg. Garry R. Lane, Esg. Charles W. Grau, Esg. Mark Scribner, Esg. David H. Bradley, Esg. Douglas J. Miller, Esg. Michael G. McQuillen, Esg. Richard B. Couser, Esg. Ronald L. Snow, Esg. James C. Wheat, Esg.