United States District Court, D. Colorado
JESSA HINTON, JESSICA BURCIAGA, JESSICA KILLINGS, JULIANNE KLAREN, KIMBERLY COZZENS, and TIFFANY TOTH, Plaintiffs,
4871 BROADWAY, INC., d/b/a The Bustop, BUSTOP BOULDER, INC., BOULDER BUSTOP, LLC, and 4871 BBS, LLC, Defendants.
ORDER GRANTING MOTION FOR LEAVE TO FILE THIRD-PARTY
COMPLAINT [ECF. #34]
KATO CREWS U.S. MAGISTRATE JUDGE
Order addresses the Defendants 4871 Broadway, Inc. d/b/a/ The
Bustop (“Bustop”) and Bustop Boulder, Inc's
(“Bustop Boulder”) Motion for Leave to File
Third-Party Complaint (the “Motion”) [ECF. #34].
Plaintiffs have not stated an objection to the Motion during
conferral, according to the Motion. [ECF. #34 at ¶¶
1, 4.] The District Judge referred the Motion to this Court
for a ruling. [ECF. #35.] The Court has reviewed the Motion,
relevant federal rules and case law, and the entire case
file. Oral argument will not materially assist the Court in
its determination. For the foregoing reasons, the Motion is
Jessa Hinton, Jessica Burciaga, Jessica Killings, Julianne
Klaren, Kimberly Cozzens, and Tiffany Toth
(“Plaintiffs”) bring this action for false
endorsement and false advertising in violation of § 43
of the Lanham Act, 15 U.S.C. § 1125(a), and Colorado
common law against Defendants Bustop, Bustop Boulder, Boudler
Bustop, LLC, and 4871 BBS, LLC (collectively, the
“Defendants”). [ECF. #1.] Plaintiffs allege, in
part, that Defendants' used the Plaintiffs'
“images, likenesses, and/or identities” without
authorization. [Id. at ¶9.]
filed their Answer on April 24, 2019. [ECF. #23.] Shortly
thereafter, Bustop and Bustop Boulder filed a Designation of
Nonparties at Fault [ECF. #26] alleging that Foxfield
Holdings, LLC d/b/a The Social Movement (“Social
Movement”) procured the images at issue in the
Complaint for Bustop Boulder, and represented that Social
Movement had “the authority and consent to use
Plaintiffs' images.” [ECF. #26 at p. 2.] Bustop and
Bustop Boulder assert that, to the extent they are found
liable for the allegations in the Complaint, Social Movement
is “responsible, in whole or in part, for the injuries
and damages alleged and asserted by Plaintiffs . . . .”
Bustop and Bustop Boulder bring this Motion requesting leave
to file a third-party complaint wherein they bring six claims
for relief against Social Movement for damages and
attorney's fees. [See ECF. #34-2.]
14(a) of the Federal Rules of Civil procedure governs
third-party practice in federal court. Under Rule 14(a):
A defendant party may, as third-party plaintiff, serve a
summons and complaint on a nonparty who is or may be liable
to it for all or part of the claim against it. But the
third-party plaintiff must, by motion, obtain the court's
leave if it files the third-party complaint more than 14 days
after serving its original answer.
Fed. R. Civ. P. 14(a)(1). “The General purpose of Rule
14 is to settle related matters in one litigation as far as
possible and obtain consistent results from identical or
similar evidence, thus preventing a duplication of effort for
the courts and serving the interests of judicial
economy.” Patter v. Knutzen, 646 F.Supp. 427,
429 (D. Colo. 1986). Rule 14(a) “should be liberally
construed to accomplish its purpose but it is not a catchall
for independent litigation.” U.S. Fidelity &
Guar. Co. v. Perkins, 388 F.2d 771, 773 (10th Cir.
timely motion for leave to implead a third party should be
freely granted unless doing so ‘would prejudice the
plaintiff, unduly complicate the trial, or would foster an
obviously unmeritorious claim.'” Am. Int'l
Ins. Co. v. Cent. Sprinkler Co., No.
09-cv-02098-PAB-KMT, 2012 WL 1413106, at *1 (D. Colo. Mar.
31, 2010) (quoting Saine v. A.I.A., Inc., 582
F.Supp. 1299, 1309 (D. Colo. 1984)). However, “[i]f
impleading a third-party defendant would require the trial of
issues not involved in the controversy between the original
parties without serving any convenience, there is no good
reason to permit the third-party complaint to be
filed.” U.S. Fidelity & Guar. Co., 388
F.2d at 773; see also Farmers & Merchs. Mut. Fire
Ins. Co. v. Pulliam, 481 F.2d 670, 673 (10th Cir. 1973).
The determination of whether to allow the filing of a
third-party complaint lies within the sound discretion of the
court. See First Nat'l Bank of Nocona v. Duncan Sav.
& Loan Ass'n, 957 F.2d 775, 777 (10th Cir.
under Rule 14(a) must depend, at least in part, on the
resolution of the primary lawsuit. Owen Equip. &
Erection Co. v. Kroger, 437 U.S. 365, 376 (1978).
However, Rule 14(a) “does not require identity between
the primary and third-party claims[, ]” and
“[t]he fact that the third-party defendant is not
subject to the primary claims asserted by the plaintiff is no
obstacle to third-party practice.” Maxfour
Eng'rs & Architects, LLC v. ARB, Inc., 233 F.R.D
602, 605 (D. Colo. 2006).
and Bustop Boulder filed the Motion early in this litigation.
Indeed, the Court has not yet held the Rule 16(b) scheduling
conference or set the deadline for joinder and amendment of
pleadings. Because the joinder deadline is not set,
the Court finds the Motion to be timely despite it being
filed after Rule 14(a)(1)'s 14-day deadline for serving a
summons and third-party complaint on a third-party defendant.
See Fed. R. Civ. P. 14(a)(1) (requiring a
third-party plaintiff to serve the third-party complaint on a
third-party defendant within 14 days of serving its answer).
Thus, the Motion should be “freely granted”
unless doing so would prejudice the plaintiff, unduly
complicate the trial, or foster an obviously unmeritorious
claim. See Am. Int'l Ins. Co., 2012 WL 1413106,
at *1 (finding motion timely filed when filed prior to the
the Court finds that the proposed Third-Party Complaint [ECF.
#34-2] would not prejudice Plaintiffs and it would not unduly
complicate the trial because Defendants filed the Motion
prior to discovery limitations and deadlines being set in
this matter, and the claims asserted in the proposed
Third-Party Complaint will not unduly complicate the trial.
The nexus between the six claims asserted in the proposed
Third-Party Complaint and Defendants' alleged
unauthorized use of Plaintiffs' likenesses convinces the
Court that trial of the third-party claims with
Plaintiffs' claims will “obtain consistent results
from identical or similar evidence, thus preventing a
duplication of effort for the courts and serving the interest
of judicial economy.” Patten, 646 F.Supp. at
429. Therefore, allowing the Third-Party Complaint will
satisfy the purposes of Rule 14(a). See Id. The fact
that Plaintiff has not objected to the relief sought by the
Motion supports this finding.
the proposed Third-Party Complaint, on its face, appears to
contain the basic elements of a meritorious complaint, but
the Court reserves any ruling on the merits and validity of
the proposed Third-Party Complaint until it has been docketed
and Social Movement has been added as a third-party
defendant. Cf. Gen. Steel Domestic Sales, LLC v.
Steelwise, LLC, No. 07-cv-01145-DME-KMT, 2008 WL
25204323, at *4 (D. Colo. 2008) (noting that the sufficiency
of a claim is better addressed by a ...