Berry v. Norfolk Southern Railway Company, No. 5:2012cv00304 - Document 25 (E.D. Ky. 2013)
Court Description: MEMORANDUM OPINION & ORDER: GRANTING dft's 22 MOTION for Leave to file Third Party Complaint; the clerk is directed to FILE the Third Party Complaint. Signed by Judge Joseph M. Hood on 4/23/13.(KJR)cc: COR
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON DONALD BERRY, ) ) Plaintiff, ) Action No. 5:12-CV-304-JMH ) v. ) ) NORFOLK SOUTHERN RAILWAY CO. ) MEMORANDUM OPINION AND ORDER ) Defendant. ) ) ) ** ** ** ** ** This matter is before the Court on Defendant s Motion for Leave to File a Third Party Complaint [DE 22]. Plaintiff has responded [DE 23] and the Defendant timely filed a reply [DE 24]. Thus, this matter is ripe for this Court s consideration. Defendant seeks to add a claim for indemnity against Usher Transport, Inc., the plaintiff s employer pursuant to Fed. R. Civ. P. 14. agreement by In support, Defendant points to an Usher Defendant harmless. that it would indemnify and hold In response, Plaintiff argues that the addition is untimely under this Court s scheduling order and that Defendant jurisdictional corrected. basis, has a failed to deficiency properly that has allege since a been Whether to grant leave for a third party complaint is within the discretion of the trial court. Co. v. Irvin, 274 F.2d 175, 178 General Elec. (6th Cir. 1960) The timeliness of such a motion is an urgent factor governing the exercise of such discretion. Irvin, 274 F.2d at 178. Although the motion for leave is outside of the deadline set by the Court, Plaintiff has not demonstrated any prejudice caused by this delay. In fact, the parties have not yet taken any depositions. Thus, there can be little prejudice, if any, to Plaintiff. Moreover, the Court notes that the addition of this Third-Party Defendant does jurisdiction in this instance. Operations, 355 F.3d 566, not destroy this Court s Grimes v. Mazda N. American 572 (6th Cir. 2004); see Kemper/Prime Indus. Partners v. Montgomery Watson Americas, Inc., 487 F.3d 1061, 1063 (7th Cir. 2007). IT IS ORDERED that the Motion for Leave to File a Third Party Complaint [DE 22] is GRANTED. Accordingly, the Clerk is directed to FILE the Third Party Complaint. This the 23rd day of April, 2013.
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