United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS
F. DENNIS SAYLOR, IV, District Judge.
This is an action for trademark infringement. On June 21, 2013, plaintiff CrossFit, Inc. filed the complaint in this case against defendant Donald Mustapha, d/b/a Chelmsford Sports Club, alleging that he infringed on its registered "Crossfit" trademark. On December 29, 2013, Mustapha, who is proceeding pro se, filed counterclaims against Crossfit and third-party claims against various other parties (which Mustapha designated as a "counterclaim"). Those claims alleged defamation, intentional interference with advantageous relations, and violations of Mass. Gen. Laws ch. 93A. On March 10, 2014, the Court dismissed the counterclaims against Crossfit and the claims against various other parties but granted plaintiff leave to file a third-party claim against Ronnie Briere.
On April 17, 2014, Mustapha filed a pleading entitled "First Counterclaim" that asserted new claims against Briere for breach of contract, defamation, and violations of Chapter 93A. On May 8, 2014, Briere filed an answer to that claim, and asserted a counterclaim against Mustapha for violations of Mass. Gen. Laws ch. 93A.
On May 23, 2014, Briere filed a motion for judgment on the pleadings, contending, among other things, that impleading him into this case was improper under Fed.R.Civ.P. 14(a)(1). On June 24, Mustapha filed a motion to amend his claims against Briere to add a claim for contributory trademark infringement.
A. Motion for Judgment on the Pleadings
The present issue turns principally on the difference between a counterclaim and a thirdparty complaint. Rule 13 governs the assertion of counterclaims, which can only be made "against an opposing party." Fed.R.Civ.P. 13(a)(1), (b). The assertion of a third-party complaint is governed by Rule 14, which provides that "[a] defending party may... serve a summons and complaint on a nonparty " in certain circumstances. Fed.R.Civ.P. 14(a)(1) (emphasis added).
As noted, on April 17, 2014, Mustapha filed a so-called "First Counterclaim" against Briere. However, Briere was not a party to the original lawsuit between Crossfit and Mustapha. Mustapha's "First Counterclaim" is therefore properly classified as a third-party complaint under Rule 14, not a counterclaim under Rule 13. Compare Fed.R.Civ.P. 13(a)(1), (b) (governing claims "against an opposing party") with Fed.R.Civ.P. 14(a)(1) (governing claims against "a nonparty").
Pursuant to Rule 14, a party must obtain leave of court to file a third-party complaint if it seeks to do so more than fourteen days after it serves its original answer. Fed.R.Civ.P. 14(a)(1). Mustapha's original answer to the complaint was filed on July 18, 2013. His thirdparty complaint against Briere was filed on April 17, 2014, more than eight months later. His pleading will therefore be construed as a motion to file a third-party complaint under Rule 14(a)(1).
Rule 14 allows a defending party to "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." Fed.R.Civ.P. 14(a)(1). The purpose of the rule is to enable the defendant "to transfer to the third-party defendant the liability asserted against the defendant by the original plaintiff." Wright & Miller, 6 Fed. Prac. & Proc. Civ. § 1446. As a result, Rule 14(a) "does not allow the defendant to assert a separate and independent claim even though the claim arises out of the same general set of facts as the main claim." Mattes v. ABC Plastics, Inc., 323 F.3d 695, 698 (8th Cir. 2003) (quoting United States v. Olavarrieta, 812 F.2d 640, 643 (11th Cir. 1987)). "If the claim is separate or independent from the main action, impleader will be denied." Katz v. Denn, 2007 WL 763896, at *6 (D. Mass. Mar. 12, 2007) (quoting F.D.I.C. v. Bathgate, 27 F.3d 850, 873 (3d Cir. 1994)); see also Lehman v. Revolution Portfolio L.L.C., 166 F.3d 389, 393 (1st Cir. 1999).
"A third-party claim may be asserted under Rule 14(a)(1) only when the third party's liability is in some way dependent on the outcome of the main claim or when the third party is secondarily liable to the defending party." Wright & Miller, 6 Fed. Prac. & Proc. Civ. § 1446 (internal footnote omitted). Mustapha's third-party complaint in this case alleges, in substance, that Briere breached a lease agreement with him and posted defamatory comments about him on Facebook. There are no allegations in the complaint that Briere's liability to Mustapha arising out of that conduct would be affected by the outcome of the original trademark-infringement claims in this case. Because the claims against Briere, as alleged, are not derived from Crossfit's claims against Mustapha, Briere cannot be impleaded into this case under Rule 14. See Katz, 2007 WL 763996, at *6-7 (dismissing third-party complaint because it "in no way alleges, or even suggests, that the third-party defendants are secondarily or derivatively liable for plaintiff's claim against [defendant]").
B. Motion to Amend
Mustapha has moved to amend his third-party complaint to add allegations that Briere is a contributory infringer of Crossfit's trademark. Leave to amend a pleading "should be granted unless the amendment would be futile or reward undue delay." Abraham v. ...