Under the local rule making power, this Court has adopted Local Rule of Civil Procedure 19(a), which provides that a motion for leave to join a third-party defendant "shall be made within six (6) months from the date of service of the moving defendant's answer to the complaint". While the local rule is mandatory in its terms, it has by no means been construed with such stringency.
The cases construing Local Rule 19 suggest that the factors to be considered in determining whether leave to join a third-party defendant shall be granted after six months are whether the defendant's delay is excusable, whether prejudice will result to the third-party defendant, and whether the trial of the principal action will be delayed or unduly complicated. The burden is obviously on defendant to justify his late application for leave to join a third-party. Raymond v. West Africa Navigation, Ltd., 3 F.R.Serv.2d 14a. 132, Case 1 (E.D.Pa.1960).
The third-party defendants have set forth in the present motion, and have argued persuasively, that they would be seriously prejudiced by now having to prepare a defense to the third-party complaint. In answering brief and argument, defendant and third party plaintiff Neff makes light of movants' claim of prejudice, and counters with citations of instances in which joinder has been permitted beyond the six month period.
Movants' reply brief has pointed out that few if any of the cited cases in any way support the propositions for which presented. It seems unnecessary to discuss all these cases, however, nor to analyze the third-party defendants' assertion of prejudice. For it appears to this Court that the plain meaning of the rule is that at least after the passage of six months, there is in the first instance no burden on the party-to-be-joined to show prejudice - whatever may be his burden within the six month period.
That position seems to follow from the cases. During the six months, and following the initial ten days, the practice in this District is to grant leave to file a third-party complaint, absent a strong showing why leave should not be granted. In effect, during the six month period, the burden of persuasion is on the party who would oppose the filing of the third-party complaint.
When the six months have elapsed, Local Rule 19(a) would seem, by its terms, to bar third-party complaints regardless of circumstances. As has been said, the cases have not construed it literally. The Rule is, however, interpreted to have the effect of placing the burden of justifying a tardy third-party complaint on the defendant who would file it. See, e.g. Graeff v. Borough of Rockledge, 35 F.R.D. 178 (E.D.Pa., Wood, J., 1964); Hammond v. Thornton, 33 F.R.D. 291 (E.D.Pa., Grim, J., 1963); Meilinger v. Metropolitan Edison Co., 34 F.R.D. 143 (E.D.Pa., Jos. S. Lord, III, J., 1963).
As Judge Body summarized it in Edwards v. United States, 223 F. Supp. 1017 (E.D.Pa.1963), this construction of the Rule makes it less of a "rule" than a guide, but still "an excellent guide to the exercise of [the Court's] discretion."
That last statement goes as far as this Court cares to go. But in the present case, the delinquent defendant argues that he needs no showing whatsoever as to why his tardy motion to join should be allowed. Furthermore, in the circumstances here present, defendant seems to claim that he has no duty to give notice of such motion to join to prospective third parties, no duty to bring it on for hearing expeditiously nor to act diligently in obtaining service of the complaint if allowed.
To relax the rule to that extent would simply be to repeal it - a move to which this Court does not intend to subscribe.
Accordingly, no valid reasons having been advanced to show why the provisions of Local Rule 19(a), mandatory in terms, should not be followed since the motion of defendant was filed out of time, this Court rules as follows.
And now, this 9th day of March, A.D. 1966, for all the foregoing reasons, the motion of Third-party defendants, Morton S. Gorelick and Steinberg, Steinbrook, Levine and Gorelick, to vacate the order of March 16, 1965 and dismiss the third-party complaint is granted and it is so ordered.
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