United States District Court, D. New Hampshire
McCafferty United States District Judge.
Brian Begley brings this action individually and on behalf of
a putative class of New Hampshire consumers against
defendants Windsor Surry Company d/b/a WindsorONE and Windsor
Willits Company d/b/a Windsor Mill (collectively
“Windsor”). Begley asserts claims against Windsor
arising from allegedly defective wood trim products that
Windsor manufactures and sells, which Begley used in
constructing his home. Windsor requests leave to file a
third-party complaint against Nehemiah Builders, Inc. and its
owner Paul Vandenberg, who installed Windsor's wood trim
product onto Begley's home. Doc. no. 60. Begley objects.
On November 1, 2019, the court heard oral argument on the
motion. For the following reasons, Windsor's motion for
leave to file a third-party complaint is denied.
Federal Rule of Civil Procedure 14(a), a defendant may bring
a third-party complaint against 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). Where, as here, a defendant
seeks to file the third-party complaint more than 14 days
after filing its answer, it must obtain the court's
permission. Fed.R.Civ.P. 14(a). The decision whether to grant
leave “is left to the informed decision of the district
court, which should allow impleader on any colorable claim of
derivative liability that will not unduly delay or otherwise
prejudice the ongoing proceedings.” Lehman v.
Revolution Portfolio L.L.C., 166 F.3d 389, 393 (1st Cir.
third-party claim may be asserted under Rule 14(a)(1) only
when the third party's liability is in some way dependent
on the outcome of the main claim or when the third party is
secondarily liable to the defending party.” Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice & Procedure § 1446 (3d ed. 2010) (footnotes
omitted); see also Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 376 (1978) (“A third-party
complaint depends at least in part upon the resolution of the
primary lawsuit. Its relation to the original complaint is
thus not mere factual similarity but logical
dependence.”). To meet this standard, a defendant must
show that, if it were found liable to the plaintiff, it
“has a right under substantive law to transfer its
liability derived from the original complaint to the
third-party defendant.” Zurich Am. Ins. v. Lord
Elec. Co. of Puerto Rico, 828 F.Supp.2d 462, 468 (D.P.R.
2011) (internal quotation marks and brackets omitted). It is
the defendant's burden to show that impleader is proper
under Rule 14. See Leasetec Corp. By & Through
Leasetec Sys. Credit v. Inhabitants of Cty. of Cumberland By
& Through Cumberland Cty. Registry of Deeds, 896
F.Supp. 35, 40 (D. Me. 1995).
14(a) does not permit a defendant to implead “a
separate and independent claim even though the claim arises
out of the same general set of facts as the main
claim.” Davis v. Prot. One Alarm Monitoring,
Inc., No. CIV.A. 03-40195-FDS, 2005 WL 3728711, at *6
(D. Mass. Nov. 2, 2005) (internal quotation marks omitted).
Nor may a defendant implead a third party “merely
because [the third party] may be liable to the
Plaintiff.” Owen, 437 U.S. at 368 n.3; see
also Zurich, 828 F.Supp.2d at 468.
manufactures the WindsorONE line of pre-primed wood trim
board products. It markets and sells this line of trim board
products for interior and exterior use on buildings and other
structures. In advertisements, Windsor represented to
consumers that the trim board product is “defect free,
” “waterproof, ” and that it provides
“durability and long term performance.” Doc. no.
17 at ¶ 188.
2004, Begley began constructing a home in Wilmot, New
Hampshire. He hired Paul Vandenberg, the owner of Nehemiah
Builders, Inc., to build the home. Begley authorized
Vandenberg to purchase WindsorONE trim board through a local
distributor and use it on 9, 712 linear feet of exterior
surfaces of the home. Vandenberg completed construction in
2005. In 2007 and 2008, Begley noticed that about 384 linear
feet of the trim board was rotting, deteriorating, splitting,
warping, and/or growing fungus. Begley filed a warranty claim
with Windsor and received credit to purchase 400 linear feet
of trim board in exchange for executing a release of
liability. He used the credit to purchase trim board from
another company and had Vandenberg replace and repair the
rotted trim board.
2015, Begley noticed that the rotting and deterioration of
the WindsorONE trim board had spread to new areas, totaling
2, 125 linear feet of trim board. Begley filed a second
warranty claim with Windsor. Windsor responded by again
offering a credit with a value of the cost of 400 linear feet
of WindsorONE trim board in exchange for Begley's
execution of another release of liability. Begley declined
2017, Begley filed this action on his own behalf and on
behalf of a putative class of New Hampshire consumers who own
structures with WindsorONE trim board. The following claims
asserted in Begley's amended complaint remain: (1) breach
of express warranty (count two); (2) negligence (count four);
and (3) a request for declaratory and injunctive relief
(count five). See doc. no. 41 at 8 n.2, 36 (dismissing
Begley's implied warranty claim and noting that Begley
had “withdrawn” his New Hampshire Consumer
Protection Act claim).
requests leave of court to file a third-party claim under
Rule 14 against Nehemiah Builders, Inc. and Vandenberg
(collectively “Vandenberg”). The proposed
third-party complaint alleges that “any of the damage
purportedly suffered by Begley” was the result of
Vandenberg's negligence in failing to “properly
follow installation instructions and directions and properly
construct Begley's home.” Doc. no. 60-2 at 3.
Consequently, Windsor claims that, to the extent it is found
liable to Begley, Vandenberg is liable to it under theories
of common-law indemnification and contribution. As explained
above, to show that these third-party claims are proper under
Rule 14(a), Windsor must show that-if it is found liable to
Begley-it will be able to shift or transfer that liability
(or a portion thereof) to Vandenberg under New Hampshire law.
See Owen, 437 U.S. at 376; Zurich, 828
F.Supp.2d at 468.
has failed, however, to articulate a legal theory which
allows it to hoist derivative liability onto Vandenberg. The
gravamen of Begley's remaining claims is that Windsor
defectively designed the trim board product. For example,
count four of the amended complaint (negligence) alleges that
Windsor owed Begley a duty of care to design, manufacture,
market, and sell a non-defective trim board product and that
it breached that duty by manufacturing a defective trim
board. Count two (breach of express warranty) alleges that
Windsor breached its express warranty that the trim board was
suitable for exterior use by providing a defective product
that prematurely rots and deteriorates when installed on the