Joinder of Parties APP. 3-10 Case: Watergate Land Condominium Unit Owner's Association v.

Wiss, Janey, Elster Associates (1987, VA) [111 F.R.D. 576] Facts: Condo association (P) hired a real estate mgmt firm to oversee maintenance of its units. Owners reported balcony crumbling, and real estate firm hire an engineering firm (D) to draw specifications to repair the balconies. On the basis of those drawings, P hired Brisk waterproofing to do the repairs. Repairs didn’t satisfy owners (P), and P invoked diversity jurisdiction and sued engineering firm and real estate mgmt firm (but not the waterproofers). The real estate mgmt firm filed a cross-claim against the engineering firm and a 3rd party complaint against the waterproofers. 3rd party complaint alleges waterproofers negligently performed the repairs and is solely liable to P. Waterproofers moved to dismiss the 3rd party complaint, and is granted the dismissal. Issue: 14(a)? Holding: Whether the real estate mgmt's 3rd party claim is maintainable under FRCP No.

Reasoning: A 3rd party claim can be maintained ONLY if the liability it asserts is in some way derivative of the main claim. Under the Rule 14, a 3rd party claim is appropriate ONLY in cases where the proposed 3rd party Df would be secondarily liable to the original Df in the event the latter is liable to the Pl. 3rd Party may not be impleaded merely b/c he MAY be liable to the Pl. Where the Df states “Its not me, its him,” the claim must fail. Litigants must look to some other rule of law on which to base a 3rd party complaint. Real estate firm and Brisk did not share a common duty to the Assoc’n and the acts giving rise to the main claim and 3rd party claim were separate in time, place, and occurrence. RULE: FCRP 14 (a) - 3rd party complaint is appropriate only where the 3rd party defendant would be secondarily or derivatively liable to the defendant in the event the defendant is held liable to the plaintiff. Plaintiff’s Argument : [Assoc’n] The real estate firm and the engineering firm are liable to the Assoc’n. D 3rd Party Complaint : [Real Estate] Brisk is solely responsible for the failure to perform. 3rd Party D’s Argument: [Brisk] There is no joint liability btwn the real estate firm and the Assoc’n in order to sustain the Pl’s claims and there is no duty on Brisk’s part to contribute to any recovery of damages against the real estate firm. Notes • 3rd party claim would have been based on FRCP 14a, which says you can file a 3rd party claim if the 3rd party defendant is or may be liable to you for all or part of your liability to the plaintiff. ○ The theory of real estate mgmt's claim is that waterproofers solely liable for P's claim. No good. The rule requires that the defendant must assert that the

3rd party has some sort of liability to it, is a joint tortfeaser, or an insurance company, etc. ○ Real estate mgmt's claim against waterproofers is not a valid 3rd party claim. ○ Why is this the rule? § Because the P is the master of the claim. § More practically, when the rule was the other way, it didn’t work. Why? □ If we allow real estate to bring in this party, the scope of the suit will keep on growing; P did not sue waterproofers. The rule that said it was ok, doesn’t make sense, because you cant force P to sue someone they don’t want to. This previous rule no good except to create clutter and problems. □ If real estate puts in a valid 3rd party claim; then by looking at rule 14, the rule say that P may assert any claims it has against the 3rd party. □ Because the theory of a 3rd party complaint is that of the D is liable for some reason to the P, then 3rd party defendant would be liable to the D. it is perfectly in order for the 3rd party defendant to assert any defenses the D might have. Rule says 3rd party D may assert any defenses that D has, so as to cut off that liability. • In this case, the only question was if the cross-claim was within the rule. It wasn’t because 3rd party not liable to D. • P must have one good fed case against D, then they could add other claims also in fed court.