United States District Court, W.D. Texas, Austin Division
A CATHOLIC HIGH SCHOOL FOR AUSTIN, INC. d/b/a ST. MICHAEL'S CATHOLIC ACADEMY, Plaintiff,
TYCO FIRE PRODUCTS LP, Defendant and Third-Party Plaintiff,
NORTHSTAR ALARM & SUPPRESSION SYSTEM, LLC d/b/a NORTHSTAR FIRE PROTECTION OF TEXAS, INC. and SOUTHSTAR FIRE PROTECTION COMPANY d/b/a NORTHSTAR FIRE PROTECTION OF TEXAS, INC., Third-Party Defendants.
PITMAN UNITED STATES DISTRICT JUDGE.
the Court in the above-entitled action is Third-Party
Defendant Southstar Fire Protection Company's Motion to
File its First Amended Answer and Counterclaim. (Dkt. 36).
Having considered the motion and responses thereto, relevant
law, and the entire case file, the Court hereby enters the
A Catholic High School for Austin, Inc. (d/b/a St.
Michael's Catholic Academy) alleges property damage
related to a sprinkler-system failure on August 18, 2014.
(Original Pet., Dkt. 1-2, ¶ 7-8). The sprinklers were
manufactured by Defendant Tyco Fire Products
(“Tyco”), (id. ¶ 9), and installed
and serviced by Third-Party Defendant Southstar Fire
Protection Company (d/b/a Northstar Fire Protection of Texas,
Inc) (“Southstar”). (Am. Third-Party Compl., Dkt.
25, ¶ 8-9). Plaintiff filed suit against Defendant in
state court on May 27, 2017. (Dkt. 1-2). Tyco removed the
action to federal court on June 27, 2016. (Dkt. 1). In an
Amended Third-Party Complaint filed December 22, 2016, Tyco
added claims against Southstar Fire Protection Company (d/b/a
Northstar Fire Protection fo Texas, Inc)
(“Southstar”). (Dkt. 25). Southstar filed an
Answer on January 11, 2017. (Dkt. 27).
filed the instant motion, through which it seeks leave to
file its First Amended Answer and Counterclaim, on March 16,
2017. (Dkt. 36). Specifically, Southstar seeks to add a
statutory claim and defense against Tyco pursuant to Section
82.002 of the Texas Civil Practice and Remedies Code.
(Id. at 2-3). Tyco objects that amendment would be
futile and should therefore be denied. (Response, Dkt. 37, at
Rule of Civil Procedure 15 provides that a party may amend
its pleading as a matter of course if it does so within 21
days of first serving the pleading in question. Fed.R.Civ.P.
15(a)(1)(A). Once outside that window, “a party may
amend its pleading only with the opposing party's written
consent or the court's leave.” Fed.R.Civ.P.
15(a)(2). “The court should freely give leave when
justice so requires.” Id.
the decision to grant leave to amend is not automatic and is
within the sound discretion of the trial court. Avatar
Exploration, Inc. v. Chevron, U.S.A., Inc., 933 F.2d
314, 320 (5th Cir. 1991). A district court may deny leave to
amend if it has a “substantial reason” to do so.
Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d
282, 286 (5th Cir. 2002). Futility of amendment is a
substantial reason. Stripling v. Jordan Prod. Co.,
LLC, 234 F.3d 863, 872-73 (5th Cir. 2000). A proposed
amendment is futile if it fails to state a claim upon which
relief could be granted such that it would be subject to
dismissal. Id. at 873.
claims against Southstar arise from Southstar's own
alleged negligent performance of services. (Am. Third-Party
Compl., Dkt. 25, ¶¶ 8-13). As a result, Tyco
argues, Southstar's attempt to seek indemnification
pursuant to Section 82.002 of the Texas Civil Practice and
Remedies Code (“Section 82.002”) is “not
germane to the actual claims at issue, would be futile, and
should be denied.” (Resp., Dkt. 37, at 2).
82.002 provides that “a manufacturer's duty to
indemnify under Chapter 82 is established when the plaintiff
is a seller, the party the plaintiff seeks indemnification
from is a manufacturer, and the underlying litigation, in
which the seller has incurred a loss, is a products liability
action.” Tex. Civ. Prac. & Rem. Code § 82.002.
A “products liability action” is statutorily
defined as a lawsuit for:
recovery of damages arising out of personal injury, death or
property damage allegedly caused by a defective product
whether the action is based in strict tort liability, strict
products liability, negligence, misrepresentation, breach of
express or implied warranty, or any other theory or
combination of theories.
Id. § 82.001(2).
asserts Southstar cannot establish it incurred “a loss
arising from a products liability action” because
Southstar “has not been and is not involved in an
underlying products liability action.” (Resp., Dkt. 37,
at 4). Rather, “Southstar's liability stems from
its own negligent acts in installing, inspecting, and/or
servicing the fire-suppression system and/or the subject
sprinkler head.” (Id.). Tyco claims Southstar
“failed to exercise due care [in] maintaining,
transporting, installing, ...