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Case 1:04-cv-00048-T Document 66 Filed 10/03/2005 Page 1 of 13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND PENNSYLVANIA GENERAL INSURANCE COMPANY, afslo JOHN SIROIS and SAFEGUARD INSURANCE COMPANY ahlo RUI HENRIQUES C.A. NO. 04-48T VS.
CHURCHILL & BANKS, LTD. and COTTAGE PLAZA, LLC VS.
J.H. LYNCH & SONS, INC.
THIRD PARTY PLAINTIFFS. CHURCHILL & BANKS. LTD., AND COTTAGE PLAZA ASSOCIATES LLC'S MOTION TO DISMISS THE THIRD PARTY ACTION WITHOUT PREJUDICE Third party plaintiffs, Churchill & Banks Ltd. and Cottage Plaza Associates, LLC, hereby move this Court, pursuant to Rule 41 (a) (2) to dismiss without prejudice the third party action that these entities have filed against J.H. Lynch & Sons, Inc. In support of this motion, these third party plaintiffs state the following:
1) The third party plaintiffs are only Churchill & Banks Ltd. and Cottage Plaza Associates, LLC (Exhibit 1: Third party complaint); 2) A third defendant in the main action, Churchill & Banks, LLC, was not added to the lawsuit until several months after the third party action was filed by the two third party plaintiffs identified above, and this entity never filed a third party action against J.H. Lynch & Sons in this federal lawsuit;
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Case 1:04-cv-00048-T 3) Document 66 Filed 10/03/2005 Page 2 of 13 The only answer filed by J.H. Lynch & Sons Co. to a third party action was in response to the third party claims filed by Churchill & Banks, Ltd. and Cottage Plaza Associates, LLC. (Exhibit 2: Answer to Third Party Complaint); 4) Churchill & Banks, Ltd. and Cottage Plaza Associates LLC, along with Churchill & Banks LLC, have reached a settlement with plaintiffs in the main action, and third party defendant made no contribution to the settlement; 5) A dismissal stipulation with prejudice of the main action was entered by this Court on September 22,2005; 6) At the mediation and since then, attorney for the third party plaintiffs, Churchill & Banks, Ltd. and Cottage Plaza Associates, LLC, has discussed the issue of dismissing the third party action without prejudice with the attorneys for the third party defendant and has not been successfbl in resolving the matter; 7) Dismissing the third party action without prejudice, and thereby allowing the claims of the third party action to be heard in the state court, would not in any way cause legal prejudice to the third party defendant J.H. Lynch; 8) In the interest of fairness and justice, the third party plaintiffs should be permitted to litigate their pending third party claims against J.H. Lynch in the state court actions with the main actions on the merits; 9) Moreover, it is in the interest of judicial efficiency that issues common to the main actions filed in the state court cases and the third party actions be addressed together by the state court; 10) Also, there is no longer diversity among the parties as both the third party plaintiffs, Churchill & Banks, Ltd. and Cottage Plaza Associates, LLC; are Rhode Island
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Case 1:04-cv-00048-T Document 66 Filed 10/03/2005 Page 3 of 13 corporations and J.H. Lynch & Sons is a Rhode Island Corporation; therefore, the claims between them involving state law are more appropriately addressed in the state court; 11) Furthermore, the third party action is moot at this time because it is contingent upon a finding of liability against the defendants in the main action and that action has been dismissed without a finding or admission of liability.
In further support of this motion, third party plaintiffs, Churchill & Banks, Ltd. and Cottage Plaza Associates, LLC, rely on the Memorandum in Support of this Motion and incorporate the same by reference.
WHEREFORE, the third party plaintiffs, Churchill & Banks Ltd., and Cottage Plaza Associates LLC, request that the Court dismiss the third party action, without prejudice and without costs or expenses to any party.
CHURCHILL & BANKS, Ltd.
COTTAGEPLAZA ASSOCIATES, LLC
By their Attorneys, AhZA'?& Faith A. LaSalle (#22 12) One Turks Head Place Suite 1010 Providence, RI 02903 Telephone: (401) 42 1-8080 Facsimile: (401) 42 1-0677 Certification of Service b U / I hereby certify that on this T d d a y of , 2005, I mailed a copy of Third party plaintiffs' Motion to Dismiss Without Prejudice the Third Party Complaint and Supporting Memorandum to the attorneys of record:
Craig R. Waksler, Esq.
Stephen Adams, Esq.
Taylor Duane Barton k Gilman, LLP 10 Dorrance Street, Suite 700 Providence, RI 02903
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Case 1:04-cv-00048-T
Robert Quigley, Esquire McKenney, Jeffrey & Quigley 95 Chestnut Street, 6" Floor Providence, RI 02908
Document 66 Filed 10/03/2005
Oh mer lebl jp
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Case 1:04-cv-00048-T Document 66 Filed 10/03/2005 Page 5 of 13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND PENNSYLVANIA GENERAL INSURANCE COMPANY, a/do JOHN SIROIS and SAFEGUARD INSURANCE COMPANY a/do RUI HENRIQUES C.A. NO. 04-48T VS.
CHURCHILL & BANKS, LTD. and COTTAGE PLAZA, LLC VS.
J.H. LYNCH & SONS, INC.
MEMORANDUM IN SUPPORT OF
THIRD PARTY PLAINTIFFS, CHURCHILL & BANKS, LTD., AND COTTAGE PLAZA ASSOCIATES LLC'S MOTION TO DISMISS THE THIRD PARTY ACTION WITHOUT PREJUDICE BACKGROUND This litigation arises from a fire that occurred on November 14, 2003, at the Greenhalgh Mill Complex in Pawtucket, Rhode Island. The plaintiffs in the main action, Pennsylvania General Insurance Company and Safeguard Insurance Company, were insurers who had paid out on claims for losses arising out of damage to houses surrounding the mill complex. Early in the litigation, two of the defendants, Churchill & Banks, Ltd. and Cottage Plaza Associates, LLC, filed a third party action against J.H. Lynch & Sons, Inc. because the plaintiffs had made allegations concerning the adequacy of the fencing surrounding the property and J.H. Lynch & Sons had been the site contractor hired to erect fencing around the premises in preparation for demolition and construction work.
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At mediation in August, third party plaintiffs, Churchill & Banks Ltd., and Cottage Plaza Associates, LLC, reached a settlement of the main action with Pennsylvania General Insurance Company and Safeguard Insurance Company and have stipulated to dismiss the main action with prejudice. This dismissal stipulation was entered as an order of the court on September 22, 2005. The third party defendant, J.H. Lynch & Sons, Inc. did not contribute to the settlement. Third party plaintiffs, Churchill & Banks Ltd. and Cottage Plaza Associates, LLC proposed, in order to close this federal
matter, that the third party action be dismissed without prejudice so that any claims against J.H. Lynch & Sons, Inc. could be addressed in the four pending state court actions, all arising out of the November 14, 2003, mill fire, and where J.H. Lynch & Sons, Inc. is also named as a third party defendant. (The defendantslthird party plaintiffs have never been served in one action and another action is in the process of being answered.) The third party defendant, J.H. Lynch & Sons, Inc. has refbed to sign a dismissal without prejudice or agree to a proposed compromise of the parties' respective positions.
Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, these third party plaintiffs are requesting the Court to dismiss the third party action without prejudice and without costs to any party. Under the circumstances, it is appropriate to do so.
ARGUMENT
I.
DISMISSAL OF THE THIRD PARTY ACTION WITHOUT PREJUDICE
COMPORTS WITH THE BASIC PURPOSE OF RULE 41(A)(2) WHICH IS TO FREELY PERMIT A PLAINTIFF TO DISMISS AN ACTION.
The reason for Rule 41 is to allow for voluntary dismissal of claims and cases. Rule 41(a)(2) exists to permit a voluntary dismissal by a plaintiff (or as in this case a
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third party plaintiff) in circumstances such as these, i.e. late stages of discovery. Puerto Rico Maritime Shipping Authoritv vs. Leith, 668 F. 2d 46 (lStCir. 1981). In fact, the basic purpose of Rule 41(a)(2) is to "freely permit the plaintiff, with court approval, to voluntarily dismiss an action so long as no other party will be prejudiced. LeCompte v.
Mr. Chip. Inc., 528 F.2d 601, 604 (5'h Cir. 1976). According to the First Circuit, "dismissal without prejudice should be permitted under the rules unless the court finds that the defendant will suffer legal prejudice. Puerto Rico Maritime Shipping Auth. v. Leith, 668 F.2d at 50.
Rule 41(a)(2) allows the Court to exercise its discretion in matters of involuntary or partially voluntary dismissal of actions, especially as to third-party actions where the main action has been dismissed. Century Manufacturing Company v. Central Transport International Inc., 209 F.R.D. 647, 648 (D. Mass. 2002), citing Holbrook v. Anderson Con>., 130 F.R.D. 5 16, 5 19 (D. Me. 1990). Since the purpose of the Rule 41(a)(2) is to freely allow dismissals, a dismissal of the third party action without prejudice is appropriate in this instance.
11.
DISMISSAL OF THE THIRD PARTY ACTION WITHOUT PREJUDICE
IS APPROPRIATE WHEN THERE IS NO LEGAL HARM OR LEGAL
PREJUDICE TO A PARTY.
The First Circuit has indicated that the existence or the prospect of a second suit is not considered legal prejudice. Puerto Rico Maritime Shipping Authority vs. Leith, 668
F. 2d at 50. Other courts have also rehsed to find the prospect of a subsequent lawsuit as
legal prejudice. McCants v. Ford Motor Company. Inc., 78 1 F.2d 855, 856-7 (1 lthCir. 1986); Brown vs. Gulfstream Aerospace Corporation, 2001 WL 548846 (S.D.Ga.). Nor, according to the First Circuit, is even a tactical advantage to the plaintiff considered legal
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Case 1:04-cv-00048-T Document 66 Filed 10/03/2005 Page 8 of 13 prejudice. Puerto Rico Maritime, 668 at 50. Furthermore, it has also indicated that even involvement in lengthy and costly discovery in the federal action is not considered legal prejudice.
Id. Other circuits have ruled similarly. See, for example, Robles vs. Atlantic Sounding Co.. Inc., 77 Fed. Appx. 274 (5'h Cir 2003).
In this instance, the existence of four cases pending in the Providence Superior Court is not sufficient to conclude that the third party defendant will suffer prejudice. There is no tactical advantage; particularly since the parties to the third party action are all Rhode Island based corporations and the issues involved will entail the interpretation and application of Rhode Island law. Also, the cost of participating in discovery in this federal case does not constitute a legal prejudice. The Court in Puerto Rico Maritime Shipping Auth. vs. Leith, faced that precise argument and rejected it as the Court failed to consider the cost of engaging in discovery as legal prejudice, particularly where the discovery would be used in pending state litigation. As the First Circuit stated, "this discovery has not been wasted, as much of it remains relevant to the suit currently pending in a court of the Commonwealth of Puerto Rico."
Id. Similarly, the discovery done in this federal case is relevant to the four suits currently pending in the Providence Superior Court. In fact, non-party plaintiffs to this litigation, who are parties in the state cases were invited, attended and were allowed to examine deponents at all of the fact depositions conducted in this federal case.
The understanding among all who participated was that the discovery would be used in all litigation arising out of the fire. Finally, there is no basis for the third party defendant to claim that it would be precluded from raising any defense or asserting any claims in the state cases pending in the
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Providence Superior Court. Without any of the above, the third party defendant cannot show that it is legally harmed by a dismissal without prejudice.
For the reasons discussed, there is no basis to find that the third party defendant in this action would be legally prejudiced and therefore, the Court is requested to order the dismissal of the third party action, without prejudice.
Under Rule 41(a)(2), a court is allowed to grant a dismissal without prejudice "upon such terms and conditions as the court deems proper." In this case, the dismissal without prejudice should enter without costs to any party. There are four pending state actions all arising out of the same mill fire, some of which J.H. Lynch & Sons is already involved. Therefore, Lynch would have had to incur costs and expenses anyway in defending those actions. Moreover, the third party plaintiffs and their attorneys made every effort possible to conduct the discovery in an efficient and consolidated manner, by notifling not only plaintiffs in the state actions but also potential plaintiffs and their attorneys of the commencement of discovery and depositions. They also arranged among the parties that attorneys for non-parties to this action were noticed, invited to attend, and allowed to examine deponents. Therefore, there will not be a duplication of discovery efforts with the state litigation, and thus to have the issues against J.H. Lynch decided in the state cases is not going to cause it to incur excessive as duplicative costs and expenses. Furthermore, if the third party defendant had contributed nominally to the settlement at the mediation, this federal matter would have been dismissed without costs to any party.
m.
DISMISSAL OF THE THIRD PARTY ACTION WITHOUT PREJUDICE
SERVES THE INTERESTS OF JUDICIAL EFFICENCY AND FAIRNESS.
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Federal courts can decline to hear or postpone third party claims when the same claims are pending in state court. In Freeman v. Resolution Trust Corn, where thirdparty plaintiff had used permissive joinder to add third-party claims to the original action, the United States District Court for the Northern District of California, pursuant to Rule Civ. P. 20(b), severed defendants' third party claims from the main action and stayed those claims pending resolution of the identical claims in state court. Freeman v. Resolution Trust Corn., 1994 WL 3985 15, 3 (N.D. Cal.).
In this instance, dismissing
the third party action without prejudice would have the same effect on the similar pending state claims against J.H. Lynch.
Moreover, discovery from experts who were deposed in the federal case, as recently as June 2005, indicate that new issues may establish liability in part against other contractors who were working on the premises around the time of the fire. Testimony from these experts also indicate that some issues not addressed in the original pleadings in federal court are expected to be raised in the state court actions and could potentially give rise to liability of various contractors with respect to damages in those lawsuits and new grounds for liability with respect to J.H Lynch. Furthermore, parties in the state actions have not disclosed expert opinions or even identified experts, which could give rise to additional facts and claims against various contractors on the premises at or around the time of the fire. If the third party plaintiffs were barred from potentially pursuing a claim against an appropriate responsible party due to a dismissal with prejudice, then neither fairness nor the interests of justice would be served.
As stated above, the claims against the third-party defendant in this matter have also been raised in the two actions currently pending in the Superior Court of Rhode
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Case 1:04-cv-00048-T Document 66 Filed 10/03/2005 Island where responsive pleadings have been filed.
Page 11 of 13 It is in the interest of judicial efficiency and fairness that this third party action in this litigation be dismissed at this time and that the claims in the third party action, which deals with issues common to the main actions filed in the state court cases, are addressed in those actions.
IV. A DISMISSAL OF THE THIRD PARTY ACTION WITHOUT
PREJUDICE IS APPROPRIATE WHERE DIVERSITY NO LONGER EXISTS AND THE THIRD PARTY ACTION FILED IN A LAWSUIT WHERE THE MAIN ACTION HAS BEEN DISMISSED MAY BE CONSIDERED MOOT.
When neither diversity nor a federal question exist anymore in a federal lawsuit, it is considered preferable to dismiss the action so that it may be tried in state court. As one federal district court has stated, "(w)here the sole original basis for federal jurisdiction has evaporated upon settlement of the main case, a district court must reassess its earlier decision to exercise jurisdiction over claims that have no independent federal jurisdictional basis. First saving;^ Leasing; Corn v. McKav, 1989 WL 152328, 1 (N.D.
111. 1989), citing United States v. Zima, 766 F.2d 1153, 1157 (7'h Cir 1985). Relevant considerations include judicial economy, convenience and fairness to litigants. Id. The rationale is that a federal court should not intrude into issues of state law unless there is justification for doing so. First Savings Leasing; Corp. at 1, citing Araento v. Village of Melrose Park, 838 F.2d 1483, 1502 (7fhCir. 1988).
This is particularly true in a case such as this one where there are already state cases in existence with third party actions against J. H. Lynch. In this instance, all parties to the third party action, the two third-party plaintiffs and the third-party defendant, are Rhode Island companies, incorporated and having their principle place of business in the State of Rhode Island. None of the claims alleged involve a federal question. Thus, with diversity destroyed by the dismissal of the main action, this Court would be deciding
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Case 1:04-cv-00048-T Document 66 Filed 10/03/2005 Page 12 of 13 matters of Rhode Island law between Rhode Island parties. The better forum for such an action is the Superior Court of Rhode Island, where four actions similar to the instant action are pending.
Moreover, there is also the consideration that the third party action may no longer be justiciable. With the dismissal of the main action as a result of settlement, any liability on the main claim has become purely hypothetical. A dismissal of a third party action on the basis of mootness is appropriate after the main action is dismissed by a favorable summary judgment motion. Faser vs. Sears Roebuck & Co. vs. Fishman vs. Uwjohn, 674 F.2d 856, 860 (1 lth Cir. 1982). If there is no longer a claim by the plaintiff against the defendantlthird party plaintiffs, then the third party plaintiffs have no claim against the third party defendant.
Id.
See, also Evra Corporation vs. Swiss Bank Corporation vs.
Continental Illinois National Bank, 673 F. 2d 951, 959 (7thCir. 1982), cert. den. 459 U.S. 1017 (1982); First Commerce of America. Inc. v. Nimbus Center Associates, 958 P.2d 850,852 (Or. App. 1998).
The release entered into by the plaintiffs in the main action and the defendants, which has been made available to the third party defendant's attorneys, specifically provided that "this Release is given and received in settlement of a disputed claim and does not operate as an admission of liability." Thus, the liability of the defendantslthird party plaintiffs to the plaintiffs in the main action has never been adjudicated. Since any potential liability of J.H. Lynch is derived from the main action, which was been dismissed with no admission of liability; the third party claims are now merely hypothetical and no longer justiciable.
Therefore, a dismissal without prejudice is appropriate in case those actions become justiciable at a later point in time.
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Case 1:04-cv-00048-T Document 66 Filed 10/03/2005 Page 13 of 13 For all of the these reasons discussed, the third party plaintiffs, Churchill & Banks Ltd., and Cottage Plaza Associates LLC, request that the Court dismiss the third party action, without prejudice, in this matter, and without costs or expenses to any party. CHURCHILL & BANKS, Ltd.
COTTAGE PLAZA ASSOCIATES, LLC
By their Attorneys, One Turks Head Place Suite 1010 Providence, RI 02903 Telephone: (401) 421-8080 Facsimile (40 1) 42 1-0677 Certification of Service I hereby certify that on this id day of (1 ( ,2005, I mailed a copy of Third Party plaintiffs' Motion to Dismiss the Third Party Action without Prejudice and the Supporting Memorandum to the attorneys of record: 3 Craig R. Waksler, Esq.
Stephen Adams, Esq.
Taylor Duane Barton & Gilman, LLP 10 Dorrance Street, Suite 700 Providence, RI 02903 Robert Quigley, Esquire McKenney, Jeffrey & Quigley 95 Chestnut Street, 6thFloor Providence, RI 02908 m b
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Case 1:04-cv-00048-T Document 66-2 Filed 10/03/2005 Page 1 of 5 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND PENNSYLVANIA GENERAL INSURANCE COMPANY, a/s/o JOHN STROIS and SAFEGUARD INSURANCE COMPANY a/s/o RUI HENRIQUES C.A. NO. 04-48T VS.
CHURCHILL & BANKS, LTD. and COTTAGE PLAZA, LLC VS.
J. H. LYNCH & SONS, INC.,
Third-Party Defendant DEFENDANTSPTHIRD PARTY PLAINTIFFS, CHURCHILL & BANKS,LTD.
AND COTTAGE PLAZA, LLC'S THIRD PARTY COMPLAINT AGAINST THIRD PARTY DEFE?ND&JT,J.H~LYNCH& SONS, INC.
Parties 1.
This matter involves losses arising out of a mill fire that occurred in Pawtucket, Rhode Island on November 14,2003.
2.
Defendantdthird party plaintiffs Churchill & Banks, Ltd. ("Churchill") is a company, with its principal place of business in the city of Providence, County of Providence, State of Rhode Island.
3.
Defendantslthird party plaintiffs Cottage Plaza Associates, LLC., ("Cottage Plaza Associates") is a company with its principal place of business in the city of Providence, County of Providence, State of Rhode Island.
4.
Churchill and Cottage Plaza Associates are hereinafter collectively referred to as "Defendants."
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Case 1:04-cv-00048-T Document 66-2 Filed 10/03/2005 Page 2 of 5 Third party defendants, J.H. Lynch & Sons, Inc. is a company, with its principal 5.
place of business in the city of Cumberland, State of Rhode Island. 6.
Jurisdiction is sufficient. The amount in controversy exceeds $75,000. Allegations 7.
The first party plaintiffs, Pennsylvania General Insurance Company, aMo John Strois, and Safeguard Insurance Company, aislo Rui Henriques, have filed a complaint against defendantslthird party plaintiffs Churchill & Banks, Ltd. and Cottage Plaza, LLC. alleging, among other things that they sustained damages consequential thereto on or about November 14, 2003. (Attachment A: Complaint).
8.
The plaintiffs in the primary action claim that their damages resulted from the actions or inactions of defendantslthird party plaintiffs Churchill & Banks, Ltd. and Cottage Plaza, LLC.
9.
Defendantslthird party plaintiffs Churchill & Banks, Ltd. and Cottage Plaza, LLC. deny the plaintiffs' injuries and damages were caused by the actions or inactions of Defendantsfthird party plaintiffs Churchill & Banks, Ltd. and Cottage Plaza, LLC.
10.
The allegations maintained in the main complaint involve the security of the premises at 314 Woodbine Street, Pawtucket, Rhode Island when the premises was under demolition.
11.
The third party defendants, its agents, employees or sub-contractors, was the site constructer and entity responsible and/or involved with selecting and installing
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Case 1:04-cv-00048-T Document 66-2 Filed 10/03/2005 Page 3 of 5 security fences and implementing other security measures during the demolition process.
The security fences and other security measures are material to the present dispute based on the allegations raised by the first party plaintiffs against the first party defendantslthird party plaintiffs in the present matter.
COUNT ONE
(CONTRIBUTION)
Without admitting but, on the contrary, denying the allegations of the primary plaintiffs' complaint, defendantslthird party plaintiffs Churchill & Banks, Ltd. and Cottage Plaza, LLC., state if they are found liable to the primary plaintiffs, such liability would have been brought about by the negligence of the third party defendant, J.H. Lynch & Sons, Inc., in whole or in part.
Third party plaintiffs Churchill & Banks, Ltd. and Cottage Plaza, LLC. are entitled to contribution fiom third party defendant for all sums that may be judged against the defendantdthird party plaintiffs Churchill & Banks, Ltd. and Cottage Plaza, LLC. in favor of the primary plaintiffs.
WHEREFORE, third party plaintiffs, Churchill & Banks,Ltd. and Cottage Plaza, LLC, request that judgment enter in their favor with respect to contribution from third party defendants, J.H. Lynch & Sons, Inc.
COUNT TWO
(INDEMNIFICATION)
15.
Without admitting but, on the contrary, denying the allegations of the primary plaintiffs' complaint, defendantdthird party plaintiffs Churchill & Banks, Ltd. and
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Cottage Plaza, LLC., state if they are found liable to the primary plaintiffs, such liability would be subject to the contract that J.H. Lynch & Sons, Inc. entered into with defendantsfthird party plaintiffs Churchill & Banks, Ltd. and Cottage Plaza, LLC., in which J.H. Lynch and Sons, Inc. agreed to indemnify defendantsfthird party plaintiffs Churchill & Banks, Ltd. and Cottage Plaza, LLC. and to list defendantslthird party plaintiffs Churchill & Banks, Ltd. and Cottage Plaza, LLC. as additional insureds in the insurance policy J.H. Lynch & Sons, Inc. was required to obtain in order to perform the work on the premises. 16.
Third party plaintiffs Churchill & Banks, Ltd. and Cottage Plaza, LLC are entitled to indemnification from third party defendants for all sums that may be judged against the defendantslthird party plaintiffs Churchill & Banks, Ltd. and Cottage Plaza, LLC. in favor of the primary plaintiffs.
WHEREFORE, third party plaintiffs, Churchill & Banks, Ltd. and Cottage Plaza,
LLC request that judgment enter in their favor with respect to indemnification fi-om third party defendants, J.H. Lynch & Sons, Inc.
Third-Party Plaintiffs, COTTAGE PLAZA ASSOCIATES, LLC, CHURCHILL & BANKS, LTD By their Attorneys,
One Turks Head Place 76 Westminster Street Suite 1010 Providence, RI 02903 Telephone: (401) 421-8080 Facsimile (40 1) 42 1-0677
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Certification of Service
I hereby certify that on this day of November, 2004 that a true and correct copy of this Third Party Action has been duly furnished via First Class Mail to the following counsel of record: Matthew F. Noone, Esquire, Cozen O'Connor, The Atrium, 1900 Market Street, Philadelphia 19103; Marco Yriati, Esquire, Roberts, Carroll, Feldstein & Pierce, Ten Weybosset Street, Providence, Rhode Island 02903.
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Case 1:04-cv-00048-T Document 66-3 Filed 10/03/2005 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COURT O F RHODE ISLAND PENNSYLVANIA GENERAL INSURANCE ) COMPANY, a/s/o J O H N STROIS and SAFEGUARD INSURANCE COMPANY ) a/s/o RUI HENRIQUES
C. A. NO.: 04-48 T Plain tiffs, v.
) CHURCHILL & BANKS, LTD.
and COTTAGE PLAZA, LLC 1 Defendants/Third-Party Plaintiff ) 1 v.
1 1 J.H. LYNCH & SONS, INC.
1 Third-Party Defendant THIRD-PARTY DEFENDANT J.H. LYNCH & SONS, INC. ANSWER TO T H E DEFENDANT/THIRD-PARTY PLAINTIFF'S THIRD-PARTY COMPLAINT The third-party defendant, J.H. Lynch & Sons, Inc., ("the third-party defendant") hereby responds to each and every allegation contained in the defendant/third-party plaintiffs' third-party complaint as follows:
Parties 1.
No answer is required to this paragraph because no allegations against the third-party defendant are asserted.
2.
The third-party defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the third-party complaint and, therefore, leaves the third-party plaintiff to its proof.
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Case 1:04-cv-00048-T Document 66-3 Filed 10/03/2005 Page 2 of 5 The third-party defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the third-party complaint and, therefore, leaves the third-party plaintiff to its proof. No answer is required to this paragraph because no allegations against the third-party defendant are asserted.
The third-party defendant admits the allegations contained in this paragraph. The allegations contained in this paragraph constitute conclusions of law, to which no response is required.
N o answer is required to this paragraph because no allegations against the third-party defendant are asserted. Furthermore, no Attachment A was provided with the thirdparty complaint, as alleged in this paragraph. N o answer is required to this paragraph because no allegations against the third-party defendant are asserted.
No answer is required to this paragraph because no allegations against the third-party defendant are asserted.
No answer is required to this paragraph because no allegations against the third-party defendant are asserted.
The third-party defendant denies the allegations contained in this paragraph. The third-party defendant denies the allegations contained in this paragraph.
COUNT O N E
(CONTRIBUTION)
The third-party defendant denies the allegations contained in this paragraph. The third-party defendant denies the allegations contained in this paragraph, and further denies that the defendantlthird-party plaintiff is entitled to any relief whatsoever.
COUNT TWO
(INDEMNIFICATION)
The third-party defendant denies the allegations contained in this paragraph.
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Document 66-3 Filed 10/03/2005 Page 3 of 5 The third-party defendant denies the allegations contained in this paragraph, and further denies that the defendantlthird-party plaintiff is entitled to any relief whatsoever.
AFFIRMATIVE DEFENSES
The third-party defendant, J.H. Lynch& Sons, Inc., having denied each and every allegation contained in the defendant/third-party plaintiffs third-party complaint not specifically admitted above, for its affirmative defenses states and alleges as follows:
FIRST AFFIRMATIVE DEFENSE
The defendadthird-party plaintiff has failed to state a claim for which relief can be granted and its third-party complaint should be dismissed pursuant to Fed. R. Civ. P 12@)(6).
T o the extent that the defendant/third-party plaintiff sustained the damages alleged, such damages were caused by the acts or omissions of third parties for whom the third-party defendant is not legally responsible.
THIRD AFFIRMATIVE DEFENSE
The defendant/third-party plaintiffs claims are barred by the equitable doctrines of waiver, estoppel and/or laches.
FOURTH AFFIRMATIVE DEFENSE
The third-party defendant states that the negligence of the defendandthird-party plaintiff caused or contributed to cause any damages of which the defendadthird-party plaintiff complains, wherefore, liability for such damages should be apportioned accordingly.
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Case 1:04-cv-00048-T Document 66-3 Filed 10/03/2005 Page 4 of 5 FIFTH AFFIRMATIVE DEFENSE The defendant/third-party plaintiff cannot recover because the alleged damages were caused by an intervening, superceding cause.
SIXTH AFFIRMATIVE DEFENSE
The defendant/third-party plaintiff cannot recover because the defendantlthird-party plaintiff knowingly assumed the risk of the damages it allegedly suffered.
SEVENTH AFFIRMATIVE DEFENSE
The defendandthird-party plaintiff cannot recover because of lack of consideration.
EIGHTH AFFIRMATIVE DEFENSE
The defendandthird-party plaintiff cannot recover because of the applicable statute of frauds.
N I N T H AFFIRMATIVE DEFENSE
The defendant/third-party plaintiff cannot recover because of the terms contained in the contract between the parties.
T E N T H AFFIRMATIVE DEFENSE
The defendandthird-party plaintiffs complaint should be dismissed pursuant to Fed
R. Civ. P. 12@)(5).
ELEVENTH AFFIRMATIVE DEFENSE
The defendaidthird-party plaintiffs complaint should be dismissed pursuant to Fed.
R. Civ. P. 12@)(4).
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Case 1:04-cv-00048-T Document 66-3 Filed 10/03/2005 Page 5 of 5 T H E THIRD-PARTY DEFENDANT DEMANDS A JURY TRIAL. Respectfully submitted, The Third-Party Defendant, J.H. Lynch & Sons, Inc., By its Attorneys, Craig R. Waksler, Esq.
R.I. Bar No. 4945 Stephen Adams, Esq.
R.I. Bar No. 5577 Taylor Duane Barton & Gilrnan, LLP 10 Dorrance Street Suite 700 Providence, RI 02903
(401) 273-7171
(401) 273-2904 fax CERTIFICATE OF SERVICE I, hereby certify that a true copy of the above document was hand delivered upon the attorney of record for each other party by mailing same postage on December 22,2004. -raig -
R. Waksler - , ' C/
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