22 F.R.D. 471 (D.Md. 1958), C. A. 10861, Foster v. Brown

• Citation: 22 F.R.D. 471, 1 Fed.R.Serv.2d 147
• Opinion Judge: CHESNUT, District Judge.
• Party Name: Regina Lee FOSTER, an infant, by Glenn W. Foster and Martha T. Foster, her Parents and next friends, and Glenn W. Foster and Martha T. Foster, in their own right v. Nellie McCombs BROWN, individually, and Nellie McCombs Brown and James Clarence Hanawalt, executors of the last will of Vesta McCombs Hanawalt, deceased, Defendants and Third-Party Plai
• Attorney: Paul Berman, Baltimore, Md., A. Freeborn Brown, BelAir, Md., for plaintiffs. John H. Mudd and James D. Peacock (Semmes, Bowen & Semmes) Baltimore, Md., for defendants. Herbert E. Witz, Baltimore, Md., for third-party defendant.
• Case Date: November 25, 1958
• Court: United States District Courts, 4th Circuit, U.S. District Court — District of Maryland

Page 471

22 F.R.D. 471 (D.Md. 1958)

1 Fed.R.Serv.2d 147

Regina Lee FOSTER, an infant, by Glenn W. Foster and Martha T. Foster, her Parents and next friends, and Glenn W. Foster and Martha T. Foster, in their own right

v.

Nellie McCombs BROWN, individually, and Nellie McCombs Brown and James Clarence Hanawalt, executors of the last will of Vesta McCombs Hanawalt, deceased, Defendants and Third-Party Plaintiffs (G. Rexford Brandow, Third-Party Defendant).

Civ. A. No. 10861.

United States District Court, D. Maryland.

November 25, 1958.

Invitee of tenant brought diversity action against landlord for injuries sustained by invitee because of alleged negligence in maintenance of unsafe steps. The landlord filed a third-party complaint against tenant, alleging that, in accordance with lease to tenant, tenant assumed liability for proper repairs to building. The tenant made a motion to dismiss the third-party complaint, on ground that the third-party complaint did not allege diversity of citizenship, and on ground that the subject matter of the third-party complaint was not ‘ ancillary’ to the original complaint. The District Court, Chesnut, J., held that the third-party complaint was ‘ ancillary’ to the original complaint and could be maintained by landlord.

Motion overruled.

Paul Berman, Baltimore, Md., A. Freeborn Brown, BelAir, Md., for plaintiffs.

John H. Mudd and James D. Peacock (Semmes, Bowen & Semmes) Baltimore, Md., for defendants.

Herbert E. Witz, Baltimore, Md., for third-party defendant.

CHESNUT, District Judge.

The question now before the Court presents a point for decision under federal ‘ third-party practice’ authorized by rule 14(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which, so far as I know, has not heretofore been determined by the Court of Appeals for this Circuit or by this District Court. The question arises on a motion by a third-party defendant to dismiss a third-party action brought against him.

The plaintiff's complaint presents a claim for damages by a citizen of Utah against a Maryland citizen as owner and landlord of a building in Maryland rented to various tenants, in which the plaintiff was injured by reason of negligently maintained unsafe steps while entering the building to visit one of the tenants for professional advice. On filing an answer denying liability the defendant on motion obtained an ex parte order permitting the filing of a complaint against the third-party defendant who was the tenant of the original defendant, alleging in part that in accordance with the lease to the tenant the latter assumed liability for proper repairs to the building,

Page 472

the lease not having been filed with the pleadings. The motion of the third-party defendant to dismiss the suit against him is based on the grounds that the defendant's complaint against him does not allege diversity of citizenship and that the subject matter is not ‘ ancillary’ to the original complaint of the plaintiff against the defendant. As there is no dispute between the parties as to the absence of diversity of citizenship, the sole point for decision is whether, in the absence of such diversity, the jurisdiction of the court can properly be found in the subject matter which, on the face of the pleadings makes the third-party complaint properly an ancillary proceeding. After extended re-examination of the history of the rule and very many of the illustrative federal cases thereunder I have reached the conclusion that the motion to dismiss the third-party complaint should be overruled because it is ancillary to the original complaint.

There have been many cases in this court illustrating third-party practice. In the majority of them, the jurisdiction of the court has been unquestioned or at least has been entirely clear by reason of diversity of citizenship between the original defendant and the third-party defendant; but, as noted, in the instant case there is no such diversity; and therefore the inquiry must be as to the reasonable and proper extent of ancillary federal jurisdiction under rule 14(a). The proper extent of this has, I think, not been heretofore specifically considered in any of the numerous cases in this court, and only infrequently, I find, in other federal cases.

The new Federal Rules of Civil Procedure became effective on September 17, 1938. Rule 14(a) as then expressed permitted the filing of a third-party complaint by the defendant against a third...