Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Garth O. Green Enterprises, Inc. v. Harward

United States District Court, D. Utah

January 26, 2017

GARTH O. GREEN ENTERPRISES, INC., a Utah corporation; GARTH GREEN, an individual; and MICHAEL GREEN, an individual, Plaintiffs,
v.
RANDALL HARWARD, an individual; RICHARD HARWARD, an individual; HARWARD IRRIGATION SYSTEMS, INC., a Utah corporation; GRASS VALLEY HOLDINGS, L.P.; RICHARD N. REESE, an individual; STANDARD PLUMBING SUPPLY COMPANY, INC., a Utah corporation; DOES 1-10; and ROE CORPORATIONS 1-X; Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING [62] MOTION TO ADD GW GREEN AND WENDY GREEN AS THIRD PARTY DEFENDANTS

          David Nuffer United States District Judge

         Standard Plumbing Supply, Inc. (“Standard”) moves to add GW Green Family Limited Partnership (“GW Green”), a Utah limited partnership, and Wendy Green, an individual, as third-party defendants in this action (“62 Motion”).[1] Standard asserted claims of Civil Conspiracy and Unjust Enrichment against them in its Answer to First Amended Complaint and its Counterclaims, Cross-Claims, and Third Party Claims. GW Green and Wendy Green oppose the motion (“62 Opposition”).[2] Standard filed a reply in support (“62 Reply”).[3] For the reasons set forth below, the 62 Motion is GRANTED.

         DISCUSSION

         At the time Standard filed the 62 Motion, Rule 13(g) of the Utah Rules of Civil Procedure provided as follows:

When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants as provided in these rules, if jurisdiction of them can be obtained.[4]

         Under this rule, there are two requirements for a party to be added to the case: (1) the presence of the party is “required for the granting of complete relief” and (2) jurisdiction “can be obtained” over the party. The Utah Rule has since been amended[5] to read like the Federal Rule[6]and refer these issues to Rules 19 and 20. Those rules apply to mandatory and permissive joinder.

         Standard argues that each of the former state rule requirements is met because (1) adding GW Green and Wendy Green “is required for the granting of complete relief” of Standard's counterclaims and (2) jurisdiction “can be obtained” over them.[7] Standard argues that GW Green's and Wendy Green's actions “relat[e] to and aris[e] out of the same subject matter as the underlying lawsuit.”[8]

         GW Green and Wendy Green, on the other hand, argue that the 62 Motion “fails because jurisdiction has not been obtained over GW Green or Wendy Green”[9] and suggest that consideration of the 62 Motion should be stayed until the Green Defendants' Motion to Dismiss[10] has been decided.[11] GW Green and Wendy Green are incorrect.

         As Standard points out, the question under Rule 13(g) is not whether jurisdiction has already been obtained over GW Green or Wendy Green. The question, instead, is whether “jurisdiction of them can be obtained.”[12] GW Green and Wendy Green did not provide any argument suggesting that jurisdiction cannot be obtained over them. A preliminary review of Standard's allegations shows that jurisdiction likely can be obtained over GW Green and Wendy Green, since GW Green is a Utah limited partnership with its principal place of business in Cedar City, Utah, and Wendy Green is an individual residing in Cedar City, Utah, and the events giving rise to the allegations occurred in Utah.[13]

         Further, the 62 Motion is appropriately considered at this time. GW Green and Wendy Green's argument to delay consideration of the 62 Motion is rejected. It is appropriate to determine first which parties are appropriately added to the lawsuit before eliminating claims that may relate to those parties. As GW Green and Wendy Green note in their 62 Opposition, trial courts have broad discretion in managing their docket.[14] Thus, it is appropriate to consider the 62 Motion now, without further delay.

         If this motion is properly analyzed under Fed. R. Civ. P. 20(a)(2), the motion should be granted because a “right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and . . . question[s] of law or fact common to all defendants will arise in the action.” Service The parties disagree about proper service. GW Green and Wendy Green argue that they have not yet been properly served. Standard agrees that Wendy Green has not been served and has stated that it “has chosen to wait to serve Wendy Green pending a decision from the Court on this Motion” since, at the time the 62 Reply was filed, Wendy Green was believed to be residing in the Philippines.[15] With regard to GW Green, Standard has taken the position that it was allowed to serve the “person in charge of such office or place of business” under Utah Rule of Civil Procedure 4(d)(1)(E).[16]

         Because of the disagreement surrounding service, Standard must serve (or re-serve, as the case may be) its third party claims on third party defendants GW Green and Wendy Green following the procedures described in Federal Rule of Civil Procedure 4. This is appropriate because this case is now under federal jurisdiction and Rule 4(m) provides that a court may “order that service be made within a specified time.”[17]

         The 62 Motion was not resolved by the state court prior to removal. Therefore, Standard was unsure if GW Green or Wendy Green would be added as parties to this case. Accordingly, Standard has shown good cause for not serving the third-party defendants within the time frame required under state and federal procedural rules. In this circumstance, and in an effort to resolve this matter on its merits rather than on a procedural technicality, the court will order that service be made to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.