Recktenwald v. Forster & Garbus, LLP, No. 6:2020cv06044 - Document 20 (W.D.N.Y. 2020)
Court Description: DECISION & ORDER Forster & Garbus, LLP's motion to file the proposed third-party complaint 17 is granted, and oral argument scheduled for December 3, 2020 is cancelled. Forster is directed to file and serve the third-party complaint on HN1 and ADP within thirty days of the date of this Order. Signed by Hon. Marian W. Payson on 11/30/2020. (KAH)
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Recktenwald v. Forster & Garbus, LLP Doc. 20 Case 6:20-cv-06044-FPG-MWP Document 20 Filed 11/30/20 Page 1 of 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK _______________________________________ VICTORIA RECKTENWALD, DECISION & ORDER Plaintiff, 20-CV-6044G v. FORSTER & GARBUS, LLP, Defendant. _______________________________________ Plaintiff Victoria Recktenwald filed this action against defendant Forster & Garbus, LLP (“Forster”) asserting claims pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (Docket # 1). Forster answered the complaint on July 8, 2020. (Docket # 6). Currently pending before this Court is Forster’s motion for leave to file a third-party complaint against proposed third-party defendants Automatic Data Processing, Inc. (“ADP”) and HN1 Corporation (“HN1”). (Docket # 17). The proposed third-party complaint asserts a claim for indemnification or contribution against ADP and HN1 in the event that Forster is determined to be liable to Recktenwald for the claim alleged in the complaint. (Docket # 17-4 at 4). Rule 14(a) of the Federal Rules of Civil Procedure provides that a defendant “may, as a third-party plaintiff, serve a summons and complaint against a nonparty who is or may be liable to it for all or part of the claim against it.” See Fed. R. Civ. P. 14(a). Leave of the court is required if the third-party plaintiff seeks to file the third-party complaint more than fourteen days after filing its answer to the complaint. Id. “Impleader is appropriate when the third-party defendant’s liability to the third-party plaintiff is dependent upon the outcome of the main claim or the third-party defendant is potentially secondarily liable as a contributor to the Dockets.Justia.com Case 6:20-cv-06044-FPG-MWP Document 20 Filed 11/30/20 Page 2 of 3 defendant.” Too, Inc. v. Koh’ls Dep’t Stores, Inc., 213 F.R.D. 138, 140 (S.D.N.Y. 2003) (internal quotations omitted). Factors relevant to the determination of whether to permit the filing of a third-party complaint include: (1) whether the movant deliberately delayed or was derelict in filing the motion; (2) whether impleading would delay or unduly complicate the trial; (3) whether impleading would prejudice the third-party defendant; and (4) whether the proposed third-party complaint states a claim upon which relief can be granted.” Fashion-in-Prints, Inc. v. Salon, Marrow & Dyckman, L.L.P., 1999 WL 500149, *6 (S.D.N.Y. 1999) (quotations omitted). Forster filed the pending motion on November 2, 2020, seeking to assert a claim for contribution or indemnification against the proposed third-party defendants for amounts for which Forster may be determined to owe to Recktenwald. (Docket # 17). This Court issued a motion scheduling order requiring any response to the motion to be filed on or before November 24, 2020. (Docket ## 18, 19). Recktenwald did not oppose the motion, and the record before the Court does not suggest any prejudice, undue delay or complexity, or facial futility. See Fortunato v. Chase Bank USA, N.A., 2011 WL 5574884, *2 (S.D.N.Y. 2011) (“[e]ach of the four factors favor impleader[;] . . . [a]s [p]laintiff has raised no objection to the application, the Court believes the most prudent course of action is to permit impleader and allow the third-party claims to be tested through fully briefed motion practice”); Schnabel v. Sullivan, 2006 WL 8439516, *4 (E.D.N.Y. 2006) (“[a]s [p]laintiff does not oppose [d]efendants’ motion, the motion for leave to file a third party complaint is [granted]”). Accordingly, Forster’s motion to file the proposed third-party complaint (Docket # 17) is GRANTED, and oral argument scheduled for December 2 Case 6:20-cv-06044-FPG-MWP Document 20 Filed 11/30/20 Page 3 of 3 3, 2020 is CANCELLED. Forster is directed to file and serve the third-party complaint on HN1 and ADP within thirty days of the date of this Order. IT IS SO ORDERED. s/Marian W. Payson MARIAN W. PAYSON United States Magistrate Judge Dated: Rochester, New York November 30, 2020 3
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