Free Motion to Dismiss - District Court of Connecticut - Connecticut

Case 3:02-cv-02272-AVC Document 173 Filed 07/O9/2004 Page 1 of 4
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
CROWN THEATRES, L.P., )
)
Plaintiff, )
)
v. ) Case No. 3:02CV2272AVC
) Jury Trial Demanded
MILTON L. DALY, TAYLOR—LEIGH, )
INC., ANNE E. DALY, JAMES C. )
CELLA, G.U.S. DEVELOPMENT, INC., ) July 9, 2004
JAMES T. MARTINO AND JAMES ) .
THOMAS MARTINO, ARCHITECT, )
P.C., and RCD HUDSON, LLC, )
)
Defendants. )
THIRD-PARTY DEFENDANTS DAVID CLIFFORD
AND GLENN GARFINKEUS MOTION TO DISMISS COUNTS
I, III, V, VI AND VII OF THE AMENDED THIRD-PARTY COMPLAINT
Third-party defendants David Clifford ("Clifford") and Glenn Garfinkel
("Garfinkel”) hereby move, pursuant to Rules l2(b)(6), l4 and 18 of the Federal Rules of Civil
Procedure, to dismiss and/or strike Counts I, lll, V, VI and VH of defendants James T. Martino
and James Thomas Martino, Architect, P.C.’s (collectively, "Martino") Amended Third—Party
Complaint. In support of this motion, Clifford and Garfinkel state as follows:
l. Count I of the Amended Third-Party Complaint, which purports to state
claims for indemnification against Clifford and Garfinkel should be dismissed pursuant to Fed.
R. Civ. P. l2(b)(6) for failure to state a claim upon which relief may be granted. Martino fails to
plead the required elements of a common law indemnification claim. First, he fails to plead facts
showing that Clifford and Garfinkel’s negligence was the direct and immediate cause of Crown
Theatres’ injury. Second, he fails to plead facts showing that Clifford and Garfinkel were in
control of the situation to the exclusion of Martino. Finally, Martino fails to plead that he could
reasonably rely on Clifford and Gartinkel not to be negligent.
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Case 3:02-cv-02272-AVC Document 173 Filed 07/O9/2004 Page 2 of 4
2. Counts I and III, which allege claims for indemnification and contribution,
should also be stricken pursuant to Fed. R. Civ. P. l4(a). These claims are duplicative of
Martino’s affirmative defenses for contributory/comparative negligence and his counterclaim
that may be read to allege the same. Since any alleged negligence by Clifford and Garfinkel
would already be accounted for in any judgment entered against Martino, Counts I and III do not
state valid claims for impleader under Rule 14 and should therefore be stricken.
3. Count V, which alleges a claim for negligence, should be stricken under
Fed. R. Civ. P. l4(a), because Martino alleges no injury to himself, and allegations that a third-
party defendant is liable to the plaintiff are not sufficient grounds for impleader. Furthermore,
Count V should be dismissed pursuant to Fed. R. Civ. P. l2(b)(6) because Martino fails to allege
any duty owed to him by Clifford or Garfinkel or any injury caused to him by their breach of
duty, both of which are essential elements of a negligence action in Connecticut.
4. Counts VI and VII, which allege claims of unjust enrichment against
Clifford and Garfinkel relating to architectural services allegedly performed by Martino at their
private residences, should be dismissed. The unjust enrichment claims alone cannot be a proper
basis for impleader, because they are unrelated to Crown Theatres’ claims against Martino.
Therefore, if the contribution, indemnification and negligence claims are dismissed, Martino may
not rely on Fed. R. Civ. P. 18 to bring his unrelated dispute with Clifford and Garfinkel into this
action.
WHEREFORE, for the reasons stated herein and in the attached memorandum of
law, third·pa1ty defendants David Clifford and Glenn Garfinkel respectfully request that this
Court dismiss and/or strike with prejudice Counts I, III, V, VI and VII of the Amended Third-
Party Complaint.
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Case 3:02-cv-02272-AVC Document 173 Filed 07/O9/2004 Page 3 of 4
DAV I ' I ; I LENN GARFINKEL
, r/ 4, ~ 2/
By: / A
H. 4 ames Pickerstein (Bar /5. Ct 05094)
V J di Zils Gagné (Bar N0. C 24376)
PEPE & HAZARD, LLP
30 Jelliff Lane
Southport, CT 06490
(203) 319-4000
(203) 259-0251 (fax)
hpickerstein@pepehazardcom
j [email protected]
and
Craig C. Martin (Bar No. Ct 12198)
Lawrence S. Schaner (Bar No. Ct 24756)
JENNER & BLOCK LLP
One IBM Plaza
Chicago, IL 60611 J
(312) 222-9350
(312) 840-7776 (fax)
[email protected]
[email protected]
3
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Case 3:02-cv-02272-AVC Document 173 Filed 07/O9/2004 Page 4 of 4
CERTIFICATE OF SERVICE
I, the undersigned, do hereby certify that I have served all counsel of record in
this action with a copy of Third-Party Defendants David Clifford and Glenn Garl`inkel’s
Motion to Dismiss Counts I, III, V, VI, and VII of the Amended Third-Party Complaint by
mailing a copy of the same by United States Mail, postage prepaid, to the following:
Kerry M. Wisser
Weinstein & Wisser, P.C. g
29 South Main Street
Suite 207
West Hartford, CT 06107
7 Mark Seiden
Marisa Lanza
Milber, Makris, Plousadis & Seiden, L.L.P.
3 Barker Ave.
6th Floor
White Plains,NY 10601
Robert M. Frost
Zeldes, Needle & Cooper
1000 Lafayette Blvd.
P.O. Box 1740
Bridgeport, CT 06601-1740 ’ I
/ / ,» ( _ /
’/_ J ‘
/" /4 / /
Jodi Z` 1/Gagné /
Dated: July 9, 2004
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