DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
5
MARINA RIVERA,
5
5
Plaintiff,
5
2005-CV-0076
v.
5
5
KMART CORPORATION,
5
5
Defendant.
5
__________________________________________5
TO:
Lee J. Rohn, Esq.
Wilfredo A. Wilfredo, Esq.
ORDER DENYING MOTION REQUESTING PERMISSION TO FILE THIRD
PARTY COMPLAINT
THIS MATTER came before the Court upon Defendant’s Motion Requesting
Permission to File Third Party Complaint (Docket No. 58).  Plaintiff filed an opposition to
said motion, and Defendant filed a reply thereto.
1
As the record reflects, this case was filed well over three years ago.  Discovery is
closed and expert reports have been filed.  The Court entered a Seventh and Final
Scheduling Order (Docket No. 54) on December 3, 2008, setting trial for August 10, 2009.
1.  The Court notes that Plaintiff’s opposition (Docket No. 59) was incorrectly filed in the CM/ECF system as
a motion.  Counsel again are reminded that it is their responsibility to ensure that all documents are properly
filed in the CM/ECF system.
Case: 1:05-cv-00076-TJS   Document #: 63   Filed: 01/27/09   Page 1 of 4
Rivera v. Kmart Corp.
2005-CV-0076
Order Denying Motion Requesting Permission to File Third Party Complaint
Page 2
Leave of court must be obtained prior to filing a third-party complaint when such
filing occurs more than ten (10) days after a defending party has served its original answer. 
Fed. R. Civ. P. 14(a).  Rule 14(a) is silent regarding the standards to be used in determining
when leave of court should be granted.
The District Court for the District of New Jersey has stated:
The standard used to decide if leave should be granted to file a late Third
Party Complaint pursuant to Federal Rule of Civil Procedure 14(a) is similar
to the standard used to determine whether to permit the amendment of a
pleading pursuant to Federal Rule of Civil Procedure 15(a).  See Ryan v.
Collucio, 183 F.R.D. 420, 423 (D.N.J. 1998).  Leave is only given in the absence
of undue or unexplained delay; bad faith or dilatory motive on the part of the
movant; repeated failure to cure deficiencies by amendments previously
allowed; undue prejudice to the opposing party by virtue of allowing the
amendment; or futility of the amendment.  See Long v. Wilson, 393 F.3d 390,
400 (3d Cir. 1994).
D& D Associates, Inc. v. North Plainfield Bd. of Educ., Civil Action No. 03-1026, 2008 WL
2277121 at *3 (D.N.J. June 2, 2008).  According to our sister courts in Pennsylvania, the
factors to be considered when determining whether to grant leave to implead
a third-party defendant pursuant to Rule 14, [include]: (1) the timeliness of
the motion; (2) whether the filing of the third-party complaint will introduce
an unrelated controversy or will unduly complicate the case to the prejudice
of the plaintiff; (3) whether the third-party complaint will avoid circuity of
action and settle related matters in one law suit; and (4) whether the
evidence, witnesses, and legal issues will be substantially the same in the
defendant's third-party action and plaintiff's action.
Case: 1:05-cv-00076-TJS   Document #: 63   Filed: 01/27/09   Page 2 of 4
Rivera v. Kmart Corp.
2005-CV-0076
Order Denying Motion Requesting Permission to File Third Party Complaint
Page 3
Scobie v. Waco Equipment Co., Civil Action No. 03-1224, 2008 WL 1943551 at *1 (W.D. Pa.
May 1, 2008) (citations omitted).  This Court previously has held:
The Court has great discretion in deciding whether to allow third-party
defendants to be impleaded after a significant time has elapsed since the
answer was filed.  Important factors to consider are the reasons for the delay
and any prejudice to the party to be impleaded.  Professor Moore observes:
Rule 14 does not specify the time in which the party seeking
impleader must make his motion.  The district court has great
discretion, however, to deny a motion because the moving
party delayed unduly . . . .
    . . .
    Of course, delay may be excused if the party seeking
impleader did not know of the existence of, or a basis for
joining, a third-party defendant.  The party must not be
dilatory, however, in proceeding after making discovery of a
basis for impleader.
3 MOORE'S FEDERAL PRACTICE P 14.18[2.-1].
Evans v. Allen-Williams Corp., 36 V.I. 208, 211-12 (D.V.I. 1997).
The Court finds that Defendant’s motion is not timely.  Defendant Kmart
Corporation alleges that the proposed third party defendant, Sunshine Shopping Center,
Inc.’s duty of indemnity arises “pursuant to their lease agreement entered into on
December, 1991.”  Motion at 2.  Presumably, Defendant knew of the terms of the lease
Case: 1:05-cv-00076-TJS   Document #: 63   Filed: 01/27/09   Page 3 of 4
Rivera v. Kmart Corp.
2005-CV-0076
Order Denying Motion Requesting Permission to File Third Party Complaint
Page 4
agreement at the time it entered into said lease agreement.  Defendant has not offered any
reason for its delay in seeking to implead Sunshine Shopping Center, Inc.
Accordingly, it is now hereby ORDERED that Defendant’s Motion Requesting
Permission to File Third Party Complaint (Docket No. 58) is DENIED.
ENTER:
Dated: January 27, 2009
/s/ George W. Cannon, Jr.                           
GEORGE W. CANNON, JR.                       
U.S. MAGISTRATE JUDGE
Case: 1:05-cv-00076-TJS   Document #: 63   Filed: 01/27/09   Page 4 of 4