Free Third Party Complaint - District Court of Connecticut - Connecticut

Case 3:02-cv-01418-EBB

Document 74

Filed 03/08/2004

Page 1 of 7

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT DATA SUPPORT ASSOCIATES, INC Plaintiff, VS. MGE UPS SYSTEMS, INC. Defendant. MGE UPS SYSTEMS, INC. Third Party Plaintiff, VS. ENERSYS, INC., Third Party Defendant. : CIVIL ACTION NO. : : : 3:02 CV 1418 (DJS) : : : : : : : : : : : : : FEBRUARY 27, 2004

SECOND AMENDED THIRD PARTY COMPLAINT The defendant/third party plaintiff, MGE UPS Systems, Inc. ("MGE"), hereby files the following third party complaint against third party defendant Enersys, Inc. ("Enersys"): The Parties 1. 2. MGE is a California corporation with its principal place of business in California. Enersys is a Delaware corporation with its principal place of business in

Pennsylvania. Upon information and belief, Enersys is the successor in interest to Yuasa, Inc.

41482231_1.doc 056543-00000 February 27, 2004 10:47 AM

Case 3:02-cv-01418-EBB

Document 74

Filed 03/08/2004

Page 2 of 7

3.

First party plaintiff Data Support Associates, Inc. ("DSA"), a Connecticut

corporation with its principal place of business in Connecticut, filed the first party complaint against MGE on August 15, 2002. Jurisdiction and Venue 4. This Court has jurisdiction over the first party complaint pursuant to 28 U.S.C. §

1332. The Court has jurisdiction over this third party complaint pursuant to 28 U.S.C. §§ 1332 and 1367. 5. Venue is proper in this Court pursuant to 28 U.S.C. § 1391. First Count (Breach of Contract) 6. MGE builds and sells uninterruptible power supply systems ("UPS Systems") to

clients for commercial applications. 7. MGE obtains products ancillary to UPS Systems, such as batteries, from

manufacturers and suppliers, and then resells them to its customers. 8. 9. Enersys is a manufacturer of batteries that supplies MGE with products for resale. DSA alleges in its first party complaint that in or around April, 2000, MGE entered

into an agreement with DSA to supply certain UPS Systems, including certain batteries which were a part of those systems (the "Battery Systems"). 10. On or about March 23, 2000, MGE purchased the Battery Systems from Enersys.

This purchase was memorialized in five purchase orders, Nos. 69074, 69078, 69080, 69082 and 69084 (the "Purchase Orders").

41482231_1.doc 056543-00000 February 27, 2004 10:47 AM

-2-

Case 3:02-cv-01418-EBB

Document 74

Filed 03/08/2004

Page 3 of 7

11.

MGE's purchase of the Battery Systems was subject to terms and conditions printed

on the Purchase Orders (the "Terms and Conditions"). A copy of the Terms and Conditions is attached as Exhibit A. 12. Paragraph 8 of the Terms and Conditions, titled "Indemnity," provides in relevant

part that "Seller shall also indemnify Buyer, its successors and assigns and its customers (whether direct or indirect) against any and all losses, damages, and expenses (including attorneys fees and other costs of defending any action) which they, or any of them, may sustain or incur as a result of any claim of negligence, breach of warranty or strict liability in tort in connection with the use of the goods furnished hereunder, except such as may be caused by the negligence of Buyer, its successors and assigns and/or its customers." 13. Enersys delivered certain Battery Systems in July 2000 and thereafter, and received

payment for the goods. MGE resold the Battery Systems to DSA. 14. DSA alleges in its first party complaint that the Battery Systems failed to conform

to DSA's specifications (the "Specifications"), and seeks all available remedies under Article 2 of the Connecticut Uniform Commercial Code. 15. The claim alleged in DSA's first party complaint against MGE is in whole or in part

a claim for breach of express warranty under Conn. Gen. Stat. § 42a-2-313(1)(b), and therefore falls within the indemnity provision of the Terms and Conditions. 16. On October 16, 2002, MGE made demand that Enersys acknowledge its obligations

to indemnify MGE in connection with DSA's first party complaint.

41482231_1.doc 056543-00000 February 27, 2004 10:47 AM

-3-

Case 3:02-cv-01418-EBB

Document 74

Filed 03/08/2004

Page 4 of 7

17.

On October 29, 2002, Enersys refused to indemnify MGE for any defense costs and

for any liability MGE might incur in the event that DSA prevailed in its complaint against MGE. 18. MGE. Second Count (Indemnification) 19. MGE hereby realleges paragraphs 1 through 10, 13 through 14, and 16 through 18 MGE has suffered damages from Enersys's breach of its obligation to indemnify

of this Third Party Complaint as if fully set forth herein. 20. To the extent that the Battery Systems do not conform to the Specifications as

alleged in DSA's first party complaint, MGE bears no independent fault for any such nonconformity and/or any fault for such non-conformity is that of Enersys. 21. In the event that MGE is found to be liable to DSA, such liability would be due to

the fault and/or negligence of Enersys and Enersys is thus liable in whole or in part to MGE for any defense costs and/or liability arising from DSA's first party complaint against MGE. Third Count (Breach of Warranty) 22. MGE hereby realleges paragraphs 1 through 10, 13 through 14, and 16 through 18

of this Third Party Complaint as if fully set forth herein. 23. In connection with MGE's purchase of the Battery Systems, Enersys made certain

warranties to MGE. 24. Enersys was aware that the Battery Systems were required to meet the

Specifications at the time it sold the Battery Systems to MGE.

41482231_1.doc 056543-00000 February 27, 2004 10:47 AM

-4-

Case 3:02-cv-01418-EBB

Document 74

Filed 03/08/2004

Page 5 of 7

25.

To the extent that the Battery Systems do not conform to the Specifications and/or

MGE is found to have breached any warranty or other obligation to DSA, then Enersys has breached one or more of its warranties to MGE. 26. To the extent that the Battery Systems do not conform to the Specifications and/or

MGE is found to have breached any warranty or other obligation to DSA, then such nonconformity and/or breach was the direct, proximate and foreseeable result of the breach(es) by Enersys of one or more of its warranties to MGE. 27. MGE has suffered damages from Enersys's breach(es) of one or more of its

warranties to MGE, including, without limitation, defense costs associated with defending DSA's first party complaint. 28. Accordingly, MGE seeks all remedies for breach of warranty available pursuant to

the Uniform Commercial Code, or in the alternative, indemnification for defense costs and any liability arising from DSA's first party complaint.

41482231_1.doc 056543-00000 February 27, 2004 10:47 AM

-5-

Case 3:02-cv-01418-EBB

Document 74

Filed 03/08/2004

Page 6 of 7

WHEREFORE, MGE requests the following: 1) 2) 3) 4) 5) Indemnification; Damages; Attorney's fees and expenses; Costs; and Such other relief as the Court deems appropriate. JURY DEMAND Pursuant to the United States Constitution, the Constitution of the State of Connecticut and Federal Rule of Civil Procedure 38, Defendant/Third Party Plaintiff MGE-UPS Systems, Inc., respectfully requests a trial by jury on all issues so triable.

DEFENDANT/THIRD PARTY PLAINTIFF, MGE UPS SYSTEMS, INC.

By ____________________________________ Michael P. Shea (ct#19598) Jason S. Weathers (ct#24579) Day, Berry & Howard LLP CityPlace I Hartford, Connecticut 06103-3499 (860) 275-0100 Its Attorneys

41482231_1.doc 056543-00000 February 27, 2004 10:47 AM

-6-

Case 3:02-cv-01418-EBB

Document 74

Filed 03/08/2004

Page 7 of 7

CERTIFICATION

THIS IS TO CERTIFY that a copy of the foregoing was mailed on this date by regular first class mail to all counsel and pro se parties as follows: Gary S. Klein, Esq. Sandak Hennessey & Greco, LLP 970 Summer Street Stamford, CT 06905 Daniel B. Huyett, Esq. Stevens & Lee 111 North Sixth Street P.O. Box 679 Reading, PA 19603 Patrick J. McHugh, Esq. Finn, Dixon & Herling LLP One Landmark Square Suite 1400 Stamford, CT 06901-2689

Bradford S. Babbitt, Esq. Robinson & Cole 280 Trumbull St. Hartford, CT 06103-3597

____________________________________ Michael P. Shea

41482231_1.doc 056543-00000 February 27, 2004 10:47 AM

-7-