Free Reply to Response to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00597-MRK

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT __________________________________________ BILL L. GOUVEIA AS ADMINISTRATOR : OF THE ESTATE OF JOSE GUERRA, : : Plaintiff, : : : v. : : : SIG SIMONAZZI NORTH AMERICA, INC. : AS SUCCESSOR IN INTEREST BY MERGER : TO SASIB NORTH AMERICA, INC., AS : SUCCESSOR IN INTEREST BY MERGER TO : SASIB BAKERY NORTH AMERICA, INC., : : Defendant. : __________________________________________: SIG SIMONAZZI NORTH AMERICA, INC., : : Third-Party Plaintiff, : v. : : SASIB FOOD MACHINERY MV, S.P.A., : SASIB BAKERY ITALIA, S.P.A., : DRY PRODUCTS, S.P.A., AND : COMPAGNIE INDUSTRIALI RIUNITE, S.P.A., : : Third-Party Defendants. : __________________________________________:

CIVIL ACTION NO.: 3:03 CV 597 MRK

DECEMBER 7, 2004

THIRD-PARTY DEFENDANTS' SUR-REPLY IN OPPOSITION TO PLAINTIFF'S MOTION TO AMEND THE COMPLAINT Third-party defendants Sasib Food Machinery MV, S.p.A., Sasib Bakery Italia, S.p.A., Dry Products, S.p.A. and Compagnie Industriali Riunite, S.p.A. (collectively "Third-Party Defendants") file this Sur-Reply to respond to Plaintiff's argument that the Court "should allow Plaintiff's Motion to Amend the Complaint pursuant to Federal Rule of Civil Procedure 14(a) and the claims [against the Third-Party Defendants] should relate back pursuant to Federal Rule

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of Civil Procedure 15(c)(2) . . . ." Pl.'s Mem. in Reply to Third Party Defs.' Opp'n to Pl.'s Mot. Amend Compl. at 5. Under Plaintiff's reading of the federal rules, a plaintiff may bring a claim that would otherwise be time-barred against a third-party defendant at any time, where that plaintiff's claims arise out of the same transaction or occurrence as its claim against the defendant, because the defendant acted in a timely manner to implead the third-party defendants. Id. Plaintiff cites no case law to support this position. In construing Rules 14(a) and 15(c), both the federal courts and the Connecticut courts have consistently rejected Plaintiff's argument. The court in Vincent v. Litchfield Farms, Inc. examined "the interaction between Rule 14(a) and statutes of limitation." Vincent v. Litchfield Farms, Inc., 574 A.2d 834, 835, 21 Conn. App. 524, 527 (Conn. App. Ct. 1990), cert. denied 576 A.2d 546, 215 Conn. 815 (1990). In Vincent, the plaintiff amended her complaint to assert a claim against the third-party defendants after the statute of limitations on the plaintiff's claims had expired. The third-party defendants moved for summary judgment, arguing that the claims sought to be asserted against them were time-barred. The trial court agreed, and dismissed the claims against the third-party defendants. Affirming the dismissal, the appellate court adopted the federal courts' construction of Federal Rule of Civil Procedure 14(a), on which the Connecticut impleader statute was based. Id., 574 A.2d at 835, 21 Conn. App. at 527. The appellate court held that "[t]he filing of a third-party complaint by the original Defendant does not toll the running of the statute [of limitations] on a cause of action between the Plaintiff and a third-party Defendant," and thus, that the claims asserted in plaintiff's amended complaint were time-barred. Id., 574 A.2d at 835, 21 Conn. App. at 528 (quoting Straub v. Desa Indus., Inc., 88 F.R.D. 6, 9 (M.D. Pa. 1980); citing Monarch Indus. Corp. v. Am. Motorists Ins. Co., 276 F. Supp. 972, 981 (S.D.N.Y. 1967); Zaveta v. Portelli, 127 App. Div. 2d 760, 761, 512 N.Y.S.2d 152 (App. Div. 1987)). Recent Connecticut

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decisions, attached for the Court's convenience as Exhibits A through C because they are unreported, have applied the rule that the filing of a third-party complaint does not toll the statute of limitations on a plaintiff's cause of action against a third-party defendant and that the failure of the plaintiff to amend its complaint to assert claims against the third-party defendant within the statute of limitations results in dismissal of those claims. See, e.g., Esposito v. G & I Danbury, LLC, 2004 Conn. Super. LEXIS 3079, at *3 (Conn. Super. Ct. Oct. 15, 2004) (granting summary judgment in favor of third-party defendant against whom plaintiff sought to assert a claim after the statute of limitations had run) (Ex. A); Frances v. Omni Ins. Co., 2001 Conn. Super. LEXIS 3492, at *12 (Conn. Super. Ct. Dec. 11, 2001) (same) (Ex. B); Shoreline Care Limited Partnership v. Jansen & Rogan Consulting Engineers, P.C., 2001 Conn. Super. LEXIS 1733, at *13 (Conn. Super. Ct. June 20, 2001) (same) (Ex. C). Federal courts have routinely held the same. See, e.g., Frankel v. Doerr, 37 F.R.D. 545 (E.D. Pa. 1965) ("It is . . . well established that the filing of a third party complaint by the original defendant does not toll the running of the Statute of Limitations on a cause of action between the plaintiff and the third party defendant.") (citations omitted); Straub, 88 F.R.D. at 8 (cited in Vincent, supra). Rule 15(c)(2) does not save Plaintiff's claims. Collin v. Securi International and Long View Recreational Vehicle, 322 F. Supp. 2d 170 (D. Conn. 2004), a products liability case, teaches why. As here, in Collin, the plaintiff sought to assert claims against the third-party defendants after the statute of limitations had expired by way of an amended complaint, pursuant to Rule 15(c)(2). The plaintiff reasoned that his claim against the third-party defendant arose out of the same transaction or occurrences as those giving rise to the third-party complaint, and therefore should relate back. The court disagreed with the plaintiff's analysis and found that Rule 15(c)(3) applied:

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In order to name a new party in the amended complaint after the statute of limitations has passed, plaintiff must meet the requirements of Federal Rule of Civil Procedure 15(c). Under the Rule, a plaintiff may change a party or add additional parties only if (1) the claim arose of the same conduct or transaction; and (2) within 120 days, the party to be named or added has received notice of the original institution of the complaint; and (3) the party to be named or added knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against it. Id. at 175 (citing Rule 15(c); Scharrer v. Conrail, 792 F. Supp. 170, 172-73 (D. Conn. 1992); Aslanidis v. United States Lines Inc., 7 F.3d 1067, 1075-76 (2d Cir. 1993)). Discussing the Scharrer case, which was factually very similar to Collin and the instant case, the court found that "plaintiff knew the identity of the [third-party defendant] as a possible defendant and had ample opportunity to investigate and initiate a claim against [the third-party defendant] within the statutory period." Id. at 176. As such, "[w]here there has been no mistake in identifying a party, and no other explanation for the delay in filing, Rule 15(c) does not apply." Id. Thus, the plaintiff's amended complaint did not relate back, its claims were untimely, and accordingly, dismissed. As in Collin, here, "[i]f the amendment were allowed to relate back in this situation, the purpose of the statute of limitations would be defeated." Collin, 322 F. Supp. 2d at 176 (citing Scharrer, 792 F. Supp. at 173); see also Bishop v. Atmos Energy Corp., 161 F.R.D. 339 (W.D. Ky. 1995) (holding that a plaintiff could not circumvent a statute of limitations defense by seeking to amend its complaint pursuant to Rule 15(c)(2)). Plaintiff has sought to add a claim against the Third-Party Defendants, whose identities Plaintiff knew well before the statute of limitations expired. Plaintiff chose not to assert any claim against the Third-Party Defendants, and now seeks to circumvent the statute of limitations based on an incorrect reading of the Federal Rules. Because Plaintiff's claims are time-barred, regardless of whether or not the

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defendant properly impleaded the Third-Party Defendants, Plaintiff's Motion to Amend the Complaint to add the Third-Party Defendants as defendants in the main action should be denied. Dated: Hartford, Connecticut December 7, 2004 Respectfully submitted, THE THIRD-PARTY DEFENDANTS, SASIB FOOD MACHINERY MV, S.P.A., SASIB BAKERY ITALIA, S.P.A., DRY PRODUCTS, S.P.A., AND COMPAGNIE INDUSTRIALI RIUNITE, S.P.A. By: ________________________________ Deborah S. Russo (ct 18818) [email protected] DAY, BERRY & HOWARD LLP CityPlace I Hartford, Connecticut 06103-3499 (860) 275-0100 (860) 275-0343 (fax)

John R. Horan, Esq. (ct JHR8238) Jonathan Mazer, Esq. (ct 26939) FOX HORAN & CAMERINI LLP 825 Third Avenue New York, New York 10022 (212) 480-4800 Their Attorneys Of counsel: Alison M. Rende, Esq.

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CERTIFICATION THIS IS TO CERTIFY that on this date, a copy of the foregoing was mailed first class, postage prepaid, to all counsel and pro se parties of record, as follows: Richard J. Sullivan, Esq. Sullivan & Sullivan 31 Washington Street Wellesley, MA 02481 Joseph G. Fortner, Jr., Esq. Halloran & Sage One Goodwin Square 225 Asylum Street Hartford, CT 06103 _______________________________________ Deborah S. Russo

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