ROBERTS v. ARMSCORP CARTRIDGE INCORPORATED (2025)

ORDER GRANTING MOTION TO STRIKE THIRD-PARTY COMPLAINT (DKT. NO. 26)

Plaintiffs move to strike Armscorp Cartridge Incorporated's third-party complaint arguing that the third-party claim(s) are not derivative of Plaintiffs’ claim. (Dkt. No. 26.) For the reasons stated herein, the Court GRANTS the motion.

I. BACKGROUND

Plaintiffs filed a Washington products liability claim against Defendant Armscorp Cartridge Incorporated (“Armscor”) claiming its 45-70 GOVT rifle ammunition cartridge was defectively designed or manufactured, thereby causing physical injury to Plaintiff John Roberts. (Dkt. No. 1-1 at 2–4.) In turn, Armscor filed a third-party complaint against the manufacturer (the “Remington Third-Party Defendants”) of the firearm Plaintiff John Roberts was operating at the time he was injured; claiming the rifle was defectively designed or manufactured thereby causing Plaintiffs’ injuries. (Dkt. No. 22 at 7–13.)

Armscor removed Plaintiffs’ complaint from state court on June 12, 2024, based on diversity jurisdiction. (Dkt. No. 1.) Armscor filed its answer on June 27, 2024. (Dkt. No. 13.) On December 16, 2024, Armscor moved for leave to file an amended answer and third-party complaint. (Dkt. No. 18.) Plaintiffs did not oppose the amendment but sought to reserve their right to move to strike or sever any third-party claim. (Dkt. No. 20.) Armscor filed its amended answer and third-party complaint on January 3, 2025. (Dkt. No. 22.) Plaintiffs now move to strike the third-party complaint. (Dkt. No. 26.)

II. LEGAL STANDARD

A defendant “may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it.” Fed. R. Civ. P. 14(a)(1). “The purpose of this rule is to promote judicial efficiency by eliminating the necessity for the defendant to bring a separate action against a third individual who may be secondarily or derivatively liable to the defendant for all or part of the plaintiff's original claim.” Southwest Administrators, Inc. v. Rozay's Transfer, 791 F.2d 769, 777 (9th Cir. 1986), cert. denied 479 U.S. 1065, 107 S.Ct. 951, 93 L.Ed.2d 999 (1987)). However, “while Rule 14 provides the procedural mechanism for the assertion of a claim for contribution or indemnity, there must also exist a substantive basis for the third-party defendant's liability.” Kim v. Fujikawa, 871 F.2d 1427, 1434 (9th Cir. 1989). This means “a third-party claim may be asserted only when the third party's liability is in some way dependent on the outcome of the main claim and the third party's liability is secondary or derivative.” U.S. v. One 1977 Mercedes Benz, 450 SEL, VIN 11603302064538, 708 F.2d 444, 452 (9th Cir. 1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 981, 79 L.Ed.2d 217 (1984)). Thus, a “third-party defendant may not be impleaded merely because he may be liable to the plaintiff.” Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 368 n.3, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978).

III. ANALYSIS

Plaintiffs claim they were injured because of Armscor's defectively designed or manufactured 45-70 GOVT rifle ammunition cartridge. Armscor's third-party complaint does not allege the Remington Defendants were responsible for designing or manufacturing Armscor's 45-70 GOVT rifle ammunition cartridge. Instead, Armscor alleges the Remington Third-Party Defendants defectively designed or manufactured Plaintiff John Roberts’ rifle, causing Plaintiffs’ injuries and making the Remington Third-Party Defendants liable to Plaintiffs. This means Armscor's third-party claim is not derivative of Plaintiffs’ claim against Armscor and is not dependent on the outcome of Plaintiffs’ claim against Armscor. Accordingly, the Remington Third-Party Defendants may not be impleaded merely because they may be liable to the Plaintiffs. Fed. R. Civ. P. 14(a)(1); Owen Equipment & Erection Co., 437 U.S. at 368 n.3, 98 S.Ct. 2396.

Notwithstanding, Armscor argues Washington's comparative fault statute, Washington Revised Code § 4.22.070(1), together with Washington State Superior Court Civil Rule 12(i), create a substantive right to implead the third-party claim against the Remington Third-Party Defendants. (Dkt. No. 27 at 4–7.) According to Armscor, Rule 14(a) “must yield to Washington substantive law ․ permitting [Armscor] to assert those claims against the Remington” Third-Party Defendants. (Id. at 6.)

Although a district court sitting in diversity jurisdiction is required to apply state substantive law and federal procedural law, Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th Cir. 2003), Armscor has not established that either § 4.22.070(1) or Rule 12(i) create a substantive right to implead a third-party claim against the Remington Third-Party Defendants.

§ 4.22.070(1) requires “[i]n all actions involving fault of more than one entity, the trier of fact shall determine the percentage of the total fault which is attributable to every entity which caused the claimant's damages.” On its face, § 4.22.070(1) does not grant a defendant the right to file a third-party claim against parties who may be apportioned fault for a claimant's injuries. In fact, Armscor acknowledges that under § 4.22.070(1), “[l]iability can ․ be apportioned to non-parties or former parties, including ․ parties that may have been partially at fault which plaintiff chose not to sue.” (Dkt. No. 24 at 5) (emphasis added). Thus, fault may be attributed to the manufacturer of Plaintiff John Roberts’ rifle, the Remington Third-Party Defendants, with or without their participation in this litigation. Put another way, nothing prevents Armscor from asserting an empty chair defense, i.e., asking the jury to apportion fault to an entity not a party to the litigation. See Surber v. Shanghai Zhenhua Heavy Industries Co., Ltd., No. C14-5279-RBL, 2015 WL 630573, at *3 (Wash. W.D. Feb. 13. 2015) (acknowledging the ability to pursue an empty chair defense where a third-party equitable indemnity claim was found to be improper under Rule 14(a) because the third-party claim alleged liability to the first-party plaintiff and not to the defendant/third-party plaintiff). In short, § 4.22.070(1) creates no substantive right to implead a non-derivative third-party claim.

Likewise, Washington State Superior Court Civil Rule 12(i) does not create a substantive right to implead a third-party claim. Instead, it requires a defendant to affirmatively plead nonparty fault pursuant to § 4.22.070(1): “Whenever a defendant or a third party defendant intends to claim for purposes of RCW 4.22.070(1) that a nonparty is at fault, such claim is an affirmative defense which shall be affirmatively pleaded by the party making the claim.” Wash. Super. Ct. Civ. R. 12(i); see also Afoa v. Port of Seattle, 191 Wash.2d 110, 421 P.3d 903, 908 (2018) (under Rule 12(i), “[i]n cases where a nonparty is allegedly at fault, the jury may be asked to allocate fault to the empty chair at the trial court's discretion.”). Absent from Rule 12(i) is any language authorizing a defendant/third-party plaintiff to implead a third-party claim based on § 4.22.070(1). Therefore, Rule 12(i) does not create any substantive right.

Armscor also asserts Plaintiffs’ motion to strike is an improper motion to reconsider the Court's Order granting Armscor leave to amend its answer to add a third-party claim. (Dkt. No. 27 at 7.) Although Plaintiffs did not oppose the prior motion, Plaintiffs identify they could not foreclose the possibility that Armscor may have had an indemnification agreement supporting a derivative claim at the time Armscor sought leave to amend. (Dkt. No. 28 at 9.) The Court concludes Plaintiffs did not waive any right to file the present motion by not opposing Armscor's prior motion for leave to amend.

Lastly, Armscor asserts Plaintiffs’ motion was improperly noted. (Dkt. No. 27 at 2 n.1.) The Court finds no basis to conclude the motion was improperly noted. See LCR 7(d)(3).

IV. CONCLUSION

For the reasons stated herein, Plaintiffs’ Motion to Strike Third-Party Complaint is GRANTED (Dkt. No. 26), and Armscor's third-party complaint is DISMISSED without prejudice.

David G. Estudillo, United States District Judge