Mattes v. Abc Plastics, Inc., No. 02-1161.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: John R. Gibson
• Citation: 323 F.3d 695
• Parties: Edward J. MATTES; Catherine Mattes; Nancy Waters, Plaintiffs, v. ABC PLASTICS, INC.; Ernest Stoppelmoor, Defendants, ABC Plastics, Inc.; Ernest Stoppelmoor, Third Party Plaintiffs — Appellants, v. Small Business Administration; LLP Mortgage, as Assignee of SBA, Third Party Defendants — Appellees.
• Decision Date: 24 February 2003
• Docket Number: No. 02-1161.

323 F.3d 695 Edward J. MATTES; Catherine Mattes; Nancy Waters, Plaintiffs,
v.
ABC PLASTICS, INC.; Ernest Stoppelmoor, Defendants,

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ABC Plastics, Inc.; Ernest Stoppelmoor, Third Party Plaintiffs — Appellants,
v.
Small Business Administration; LLP Mortgage, as Assignee of SBA, Third Party Defendants — Appellees. No. 02-1161. United States Court of Appeals, Eighth Circuit. Submitted October 8, 2002. Decided February 24, 2003.

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Randy E. Trca, argued, Iowa City, IA, for appellant.

Glenn P. Harris, argued, Small Business Administration, Washington, DC, for appellee.

Before MURPHY, JOHN R. GIBSON, and SMITH, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

ABC Plastics, Inc. and Ernest Stoppelmoor¹ appeal from the district court's² dismissal of their third-party complaint against the Small Business Administration and LPP Mortgage, as assignee of the SBA. The underlying suit was filed in Iowa state court by Edward J. Mattes, Catherine Mattes, and Nancy Waters against Stoppelmoor, seeking payment of the rent on a real estate lease. Stoppelmoor filed a third-party complaint against the SBA and its assignee, alleging that SBA "entered into a business agreement" for him to purchase a business, whose assets, it later turned out, included faulty equipment and contaminated materials. Stoppelmoor alleged that the SBA "intentionally misrepresented³ or failed to warn or advise [Stoppelmoor] about the contaminated materials on the business property, as well as the faulty equipment." The SBA removed the case to federal court and moved to dismiss it for lack of jurisdiction and failure to state a claim, Fed.R.Civ.P. 12(b)(1) and (6). The district court granted the SBA's motion. Stoppelmoor appeals, arguing that he has pleaded an adequate basis for recovery under contract, third-party beneficiary to contract, and tort theories. We affirm.

We review de novo the district court's grant of a motion to dismiss⁴ under

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Rule 12(b)(6), Meehan v. United Consumers Club Franchising Corp., 312 F.3d 909, 911 (8th Cir.2002), accepting as true all factual allegations in the complaint,⁵ id., but giving no effect to conclusory allegations of law. See Parkhill v. Minn. Mut. Life Ins. Co., 286 F.3d 1051, 1058 (8th Cir.2002) (well-pleaded facts, not legal theories or conclusions, determine adequacy of complaint). A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss for lack of jurisdiction under Rule 12(b)(1) which is limited to a facial attack on the pleadings is subject to the same standard as a motion brought under Rule 12(b)(6). Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990).

The SBA raises an initial objection that Stoppelmoor's pleading is not a proper third party complaint because Stoppelmoor has not and could not plead that the SBA is liable to him for all or part of the plaintiffs' claim against him, as required by Fed.R.Civ.P. 14. The plaintiffs' claim is based on default under a real estate lease, but Stoppelmoor's second amended third-party complaint does not explain how the SBA could be liable to him for any part of the plaintiffs' lease claim.

Rule 14(a) allows a defendant to assert a claim against any person not a party to the main action only if that third person's liability on that claim is in some way dependent upon the outcome of the main claim. Rule 14(a) does not allow the defendant to assert a separate and independent claim even though the claim arises out of the same general set of facts as the main claim.

United States v. Olavarrieta, 812 F.2d 640, 643 (11th Cir.1987). Accord Gaines v. Sunray Oil Co., 539 F.2d 1136, 1139 n. 7 (8th Cir.1976) ("Sunray's claim could not be maintained as a third-party claim since it is not one for indemnity."); Stewart v. American Internat'l Oil & Gas Co., 845 F.2d 196, 199 (9th Cir.1988) ("Thus, 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 is secondary or derivative thereto."). Stoppelmoor alleges no coherent legal theory under which the SBA could be liable to indemnify Stoppelmoor for his real estate lease obligation. The act of guaranteeing a loan does not cause the guarantor to become liable on a real estate lease that is — as far as we can tell from the complaint — completely separate from

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the loan. We cannot fill in the enormous gaps in Stoppelmoor's legal theory to make a valid Rule 14 impleader.

Stoppelmoor argues that the SBA failed to preserve below its argument that his complaint is not a valid third-party complaint. The SBA's attorney argued to the district court:

We continue to assert under Rule 14 that as a procedural matter that the SBA, and for that matter, the other third-party defendant, is not a-has not been properly impleaded because SBA-neither SBA nor LPP...