Since the motions to implead were granted without notice and upon the Court's belief that notice had been given and that the motions were unopposed, it is within the discretion of the same Court to vacate the order of March 13, 1963 and sustain Northern Metal Company's exception to the impleading petition.
Local Rule 19(a), Rules of Civil Procedure, Eastern District of Pennsylvania, requires:
'A motion by a defendant for leave to bring in a third-party defendant under F.R.Civ.P. 14(a) shall be made within six (6) months from the date of service of the moving defendant's answer to the complaint.' (Emphasis supplied)
This rule is made applicable to Admiralty actions by Local Admiralty Rule 31, Eastern District of Pennsylvania. Admiralty Rule 56, Rules of Practice in Admiralty, provides for joinder and mentions no time limit. The United States claims that Rule 56 is inconsistent with the Local Rules of this Court.
Of course, if there is inconsistency, the rule promulgated by the Supreme Court of the United States should control. However, Admiralty Rule 56 provides for joinder at any time that the court may allow. 'May', of course, implies discretion. That discretion is exercised in Local Rule 19. The requirement of six months is not meaningless as it would be if we allowed joinder here. Raymond v. West Africa Navigation, Ltd., 3 F.R.Serv.2d, 14a.132, Case 1 (Ed.Pa.1961).
The situation in these cases is not to be confused with the type of circumstances which give rise to the necessity of allowing untimely joinder. In McSparran v. Gable, 223 F.Supp. 127 (E.D.Pa.1963) joinder was allowed since the proposed third-party had already been joined by another defendant. Also see Frankel v. Alan Wood Steel Co., 31 F.R.D. 284 (E.D.Pa.1962); Rodack v. National Development Co., C.A. No. 31749 (E.D.Pa. December 13, 1962); McKain v. States Marine Lines, 32 F.R.D 425 (E.D.Pa.1963).
The Advisory Committee note to F.R.Civ.P. 14(a), as amended 1963, and the language of the rule itself clearly leaves within the District Court Judge's discretion, the propriety of joinder beyond ten days from the filing of the original defendant's answer. In the ordinary circumstance Local Rule 19(a) provides an excellent guide to the exercise of that discretion.
And now, this twenty-sixth day of November, 1963, after consideration of oral argument and the briefs of counsel, it is ordered that the exceptions of the impleaded respondent, Northern Metal Company, to the impleading petition of respondent, United States of America, be and the same are hereby sustained and the impleading petitions are dismissed without prejudice.
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