Free Motion for Leave to File - District Court of Delaware - Delaware

Case 1:07-cv-00346-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE E.I. DU PONT DE NEMOURS AND COMPANY, Plaintiff, v. MECHANICAL INTEGRITY, INC., Defendant. ) ) ) ) ) )

C.A. No.: 07-346 SLR JURY TRIAL DEMANDED

DEFENDANT'S MOTION FOR LEAVE TO FILE A THIRD PARTY COMPLAINT COMES NOW, Defendant, Mechanical Integrity, Inc., by and through its undersigned counsel, and moves this Court for an Order granting leave to file a Third Party Complaint against Mike Walker and NDT Equipment Services LTD. In support thereof, Defendant avers the following: 1. The Plaintiff filed a Complaint alleging that Defendant, Mechanical Integrity, Inc.,

failed to conduct a proper inspection of the pipeline at DuPont's Louisville, which is used to carry chloroform. See copy of the Complaint attached hereto as Exhibit "A". 2. Defendant, Mechanical Integrity, Inc., subcontracted with Mike Walker and NDT

Equipment Services LTD, as an independent contractor, to inspect the DuPont Louisville, Kentucky pipeline. 3. Mike Walker and NDT Equipment Services LTD had a duty to properly inspect

the pipeline at DuPont's Louisville, Kentucky facility. 4. Mike Walker and NDT Equipment Services LTD had impliedly warranted that all

work performed under its agreement with Mechanical Integrity, Inc. would be free from defect performed in accordance with industry standards in a workmanlike manner and was fit and suitable for Mechanical Integrity, Inc.'s intended purpose.

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5.

If Plaintiff's claims are proven true, Mike Walker and NDT Equipment Services

LTD's breach of contract and/or negligence and/or breach of warranty and/or misrepresentation proximately caused Plaintiff's claimed injuries. 6. If Plaintiff's claims are proven true, due to Mike Walker and NDT Equipment

Services LTD's breach of contract and/or negligence and/or breach of warranty and/or misrepresentation, Plaintiff suffered damages. Mechanical Integrity, Inc. is entitled to
indemnification and contribution from Mike Walker and NDT Equipment Services LTD for the claims of Dupont.

7. 8.

A copy of the proposed Third Party Complaint is attached as Exhibit "B". Original defendants may file a Third Party Complaint under Federal Civil

Procedure Rule 14, which describes third party practice, upon obtaining leave on motion. See Federal Civil Procedure Rule 14. Rule 14 was intended to be a way to bring a person not already a party into an existing action when the original defendant claims that the new party is or may be liable for all or part of plaintiff's claims. McMichael v. Delaware Coach Co., 107 A.2d 895 (Del. 1954). WHEREFORE, Defendant, Mechanical Integrity, Inc. , hereby moves this Court for an Order allowing it leave to file a Third Party Complaint against Mike Walker and NDT Equipment Services LTD. REGER RIZZO KAVULICH & DARNALL LLP /s/ Louis J. Rizzo, Jr., Esquire Louis J. Rizzo, Jr., Esquire Delaware State Bar I.D. No. 3374 1001 Jefferson Plaza, Suite 202 Wilmington, DE 19801 (302) 652-3611 Attorney for Defendant Mechanical Integrity, Inc.

Dated:

October 1, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE E.I. DU PONT DE NEMOURS AND COMPANY, Plaintiff, v. MECHANICAL INTEGRITY, INC., Defendant. ) ) ) ) ) ) ) ) )

C.A. No.: 07-346 SLR

JURY TRIAL DEMANDED

ORDER

NOW this

day of

, 2007, upon consideration of Defendant's

Motion for Leave to File a Third Party Complaint, and any response thereto; IT IS HEREBY ORDERED that Defendant's Motion for Leave to File a Third Party Complaint has been GRANTED.

BY THE COURT:

The Honorable Sue L. Robinson

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE E.I. DU PONT DE NEMOURS AND COMPANY, Plaintiff, v. MECHANICAL INTEGRITY, INC., Defendant. ) ) ) ) ) ) ) ) )

C.A. No.: 07-346 SLR

JURY TRIAL DEMANDED

CERTIFICATE OF SERVICE I, the undersigned, do hereby certify on this 1st day of October, 2007 that a true and correct copy of Defendant's Motion for Leave to File a Third Party Complaint has been served electronically and by first class mail, postage prepaid, to the following: Kathleen Furey McDonough, Esquire Sarah E. DiLuzio, Esquire Potter Anderson & Corroon LLP Hercules Plaza, 6th Floor 1313 N. Market Street P.O. Box 951 Wilmington, DE 19899 REGER RIZZO KAVULICH & DARNALL LLP

/s/ Louis J. Rizzo, Jr., Esquire Louis J. Rizzo, Jr., Esquire Delaware State Bar I.D. No. 3374 1001 Jefferson Plaza, Suite 202 Wilmington, DE 19801 (302) 652-3611 Attorney for Defendant Mechanical Integrity, Inc. Dated: October 1, 2007

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