United States District Court, S.D. Texas, Houston Division
ORDER DENYING DESIGNATION OF RESPONSIBLE THIRD
KEITH P. ELLISON UNITED STATES DISTRICT JUDGE
before the Court is a Motion for Leave to Designate
Responsible Third Parties, filed by Defendant Toyota Motor
Credit Corporation (“TMCC”). (Doc. No. 312.)
Defendant Shippers Stevedoring Company
(“Shippers”) incorporated all of TMCC's
arguments in its own Motion for Leave to Designate
Responsible Third Parties. (Doc. No. 324.) Plaintiff has
responded to TMCC's motion, and incorporated that
response in its response to Shippers' motion. (Doc. Nos.
336 & 337.) After considering Defendants' motions,
Plaintiff's responses, and all applicable statutes and
caselaw, the Court concludes that Defendants' motions
must be denied, albeit for different reasons. Those reasons
are explained below.
Jordan Armstrong, a longshoreman in Baltimore, Maryland,
filed this lawsuit on December 6, 2013. (Doc. No. 1.) He sued
for damages stemming from an accident that occurred on June
10, 2013, in which he was injured by a forklift that rolled
forward down a ramp on a ship where Armstrong was working,
crushing him. He originally alleged three causes of action-
negligence under the Longshore and Harbor Workers'
Compensation Act, breach of implied warranty, and common law
negligence-against various Defendants. Shippers was brought
into the lawsuit on August 26, 2014, while TMCC was brought
into the lawsuit on October 21, 2015. In this Court's
November 10, 2016, Memorandum and Order, the Court granted
summary judgment against four defendants. (Doc. No. 290.)
TMCC and Shippers remain. Reem Heavy Equipment Limitee
(“Reem”), the buyer of the forklift, is also a
defendant in this case, but has never appeared or answered
closed in this case in May, 2016. All dispositive motions
have been filed and decided. The case is set for jury trial
on June 12, 2017-less than a month from now. Defendants move
to designate responsible third parties pursuant to Texas
Civil Practice and Remedies Code § 33.004. They move to
designate Reem, the non-responsive defendant in this case,
because “it was the actual owner and shipper of the
Forklift at the time of the accident. As such, if there was a
duty to warn, then the duty applied to REEM since it knew
that the Forklift would be shipped overseas.” (Doc. No.
312 at 4.) Defendants also move to designate four of
Plaintiff's co-workers as responsible third parties,
asserting that “their negligent supervision and/or
negligence in failing to wait for Plaintiff to unlash the
front of the Forklift first and move out of the way directly
caused Plaintiff's alleged injuries and damages.”
third-party practice is governed by Rule 14 of the Federal
Rules of Civil Procedure. However, the parties agree that the
designation of a responsible third party under Texas
Civil Practice and Remedy Code 33.004 does not conflict with
Rule 14. This is consistent with the decisions of various
district courts in the Fifth Circuit. See, e.g., Withers
v. Schneider Nat'l Carriers, Inc., 13 F.Supp.3d 686,
688 (E.D. Tex. 2014); Muniz v. Stanley, No. L-06-cv-
126, 2007 WL 1100466, at *2 (S.D. Tex. April 11, 2007).
“While Rule 14 dictates how third- parties may be
formally joined and become parties to the suit subject to
liability, under § 33.004 responsible third parties are
not joined as parties-they are only designated as being
responsible without being made parties to the suit.”
Withers, 13 F.Supp.3d 686, 688 (E.D. Tex. 2014).
Section 33.004 “exists to allow proper allocation of
fault among both the named defendants and those persons
designated as responsible third parties, rather than to
govern the procedures by which third-parties may be brought
into the case as Rule 14 does.” Id. Thus, the
Court finds that it is appropriate to look to Texas
substantive law on the designation of responsible third
parties when deciding this case.
Texas Civil Practice and Remedy Code 33.004(a), “a
defendant may seek to designate a person as a responsible
third party by filing a motion for leave to designate ... on
or before the 60th day before the trial date unless the court
finds good cause to allow the motion to be filed at a later
date.” A defendant, however, may not designate a person
as a responsible third party after the expiration of the
limitations period for the underlying cause of action
“if the defendant has failed to comply with its
obligations, if any, to timely disclose that the person may
be designated as a responsible third party under the Texas
Rules of Civil Procedure.” Tex. Civ. Prac. &
Rem.Code § 33.004(d).
argues that the statute of limitations for the underlying
cause of action has run, and that TMCC failed to disclose
their intent to designate any persons as responsible third
parties. As a result, Plaintiff contends, TMCC's
designation is untimely, and should not be allowed.
Texas statute of limitations for negligence and breach of
fiduciary duty is two years. Resolution Trust Corp. v.
Acton, 844 F.Supp. 307, 316 (N.D. Tex. 1994), aff'd,
49 F.3d 1086 (5th Cir. 1995) (citing Tex.Civ.Prac.
& Rem.Code Ann. § 16.003(a)). The incident at issue
in this lawsuit occurred on June 10, 2013. Thus, the statute
of limitations expired on June 10, 2015. TMCC argues that
“the statute of limitations should be tolled for
Defendant because Defendant was not joined to this lawsuit
until November 2015.” (Doc. No. 312.) Although TMCC
cites no authority for this request, the Court notes that it
would be unjust to unequivocally prohibit a defendant from
designating a responsible third party, when that defendant is
not added until after the statute of limitations had run.
Thus, in some situations, there may be reason for a court to
equitably toll the statute of limitations to allow a
late-added defendant to designate responsible third parties.
However, this must be balanced with the Texas
Legislature's concern that the defendant could
“undercut the plaintiff's case by belatedly
pointing its finger at a time-barred responsible third-party
against whom the plaintiff has no possibility of
recovery.” Withers, 13 F.Supp.3d at 689.
Because of this concern, the legislature added the
requirement that a defendant “timely disclose”
that a person may be designated as a third party.
Tex.Civ.Prac. & Rem.Code Ann. § 34.004(d).
the Texas Supreme Court has not spoken as to what constitutes
a timely disclosure, “this Court must presume that the
Texas Legislature intended a just and reasonable result.
Otherwise, the ‘timeliness' requirement has no
meaning.” Withers, 13 F.Supp.3d at 690 (E.D.
Tex. 2014) (internal citation removed). Texas Rules of Civil
Procedure 194.2(1) states that a party “may request
disclosure” of the identity of a potential responsible
third party, and only upon such request does the responding
party need to serve a written response concerning such.
Plaintiff explicitly requested disclosure from TMCC. (Doc.
No. 336-1.) TMCC responded on January 25, 2016, and did not
disclose any potential responsible third parties. TMCC did
state, “TMCC just Dated this case in December 2015,
therefore, discovery is just commencing. TMCC's
investigation is not complete and full, responsive
information is not yet available.” (Id. at 3.)
However, even after discovery ended, in May 2016, TMCC did
not disclose its intent to designate any responsible third
parties. Nor did TMCC disclose when it filed its motion for
summary judgment, even though it argued in its motion that
two of Plaintiff's co-workers, whom TMCC now moves to
designate as responsible third parties, were responsible for
Plaintiff's injuries. (Doc. No. 249 at 9-10.) Although
TMCC was brought into the lawsuit in December, 2015, and
although Plaintiff requested disclosure shortly after that,
TMCC did not give any indication that it planned to designate
a responsible third party until April, 2017- almost a year
and a half after entering the case, and just over two months
the Court to allow TMCC's requested designations,
Plaintiff would have the burden of defending an “empty
chair” at trial. See Molinet v. Kimbrell, 356
S.W.3d 407, 419 (Tex. 2011). This burden would be exacerbated
by the fact that discovery has closed, dispositive motions
have been ruled on, and trial is set to take place in less
than a month. Under these circumstances, the Court does not
believe that justice requires tolling the statute of
limitations to allow TMCC to designate responsible third
parties this late in the case, and so soon before trial.
“Indeed, having strived to maintain a balanced
statutory scheme, . . . the Legislature's actions reflect