Watergate Landmark Condo Assoc’n v Wiss, Janey, Elstenr Assocs
117 F R D 576   [1987]
Author:- Sam Biers

Joinder : By Dfs - 3^rd Party Claims

Relevant Facts: The Condo Assoc’n hired a real estate mgnt firm to oversee maintenance of the units.  When the owners reported that the balconies were crumbling the real estate firm hired an engineering firm (Dfs) to draw specification for repairing the balconies.  On the basis of their specification they then hired Brisk Waterproofing to do the repairs.  Those repairs failed to satisfy the owners.

Legal Issue(s): Whether the Real Estate firm’s third party claim is maintainable against Brisk under Rule 14 (a) ?

Court’s Holding: NO

Procedure: In response to the owners’(Assoc’n) complaint, the real estate firm filed an Answer and a cross claim against Dfs, and a 3^rd party against Brisk, alleging Brisk is solely responsible for all liability.  Brisk moved to dismiss under Rule 12 (b) (6); Motion is granted and 3^rd party complaint is dismissed w/o prejudice.

Law or Rule(s): Rule 14 (a) - A 3^rd Party complaint is appropriate only where the 3^rd Party Df would be secondarily or derivatively liable to the Df in the event the Df is held liable to the Pl.

Court Rationale: A 3^rd party claim can be maintained ONLY if the liability it asserts is in some way derivative of the main claim.  Under the Rule, supra, a 3^rd party claim is appropriate ONLY in cases where the proposed 3^rd party Df would be secondarily liable to the original Df in the event the latter is liable to the Pl. 3^rd Party may not be impleaded merely b/c he MAY be liable to the Pl. Where the Df states “Its not me, its him,” the claim must fail.  Litigants must look to some other rule of law on which to base a 3^rd party complaint.  Real estate firm and Brisk did not share a common duty to the Assoc’n and the acts giving rise to the main claim and 3^rd party claim were separate in time, place, and occurrence.

Plaintiff’s Argument  : [Assoc’n] The real estate firm and the engineering firm are liable to the Assoc’n.

Df 3^rd Party Complaint : [Real Estate] Brisk is solely responsible for the failure to perform.

3^rd Party Df’s Argument: [Brisk]  There is no joint liability btwn the real estate firm and the Assoc’n in order to sustain the Pl’s claims and there is no duty on Brisk’s part to contribute to any recovery of damages against the real estate firm.