IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA NORTHWESTERN DIVISION
February 26, 2010
GREG BRANUM AND WENDY BRANUM, PLAINTIFF,
PETRO-HUNT CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Charles S. Miller, Jr. United States Magistrate Judge
ORDER SETTING HEARING ON MOTION TO ADD THIRD PARTY DEFENDANT
Before the court is defendant's motion to add plaintiff Greg Branum's former employer as a third-party defendant. Generally, the court routinely grants unopposed motions to amend or add parties. However, where the motion appears to be obviously futile, the court is not inclined to involve third parties only to have to immediately dismiss them and add further expense and delay to the litigation.
Any claim by defendant against the employer for contribution appears to be foreclosed by Target Stores and N.D.C.C. § 32-03.2-02 (eliminating joint and several liability with limited exceptions and comparing all fault including absolute liability), and, if not then, also by the judicial admission in plaintiffs' return to the defendant's motion that they are not seeking to hold the defendant liable for the fault of the employer.*fn1
Defendant's concern about the possibility of derivative liability appears to be more well- founded, given that some, but not all, of plaintiffs' claims impose derivative liability as a matter of law - notwithstanding plaintiffs' claim that they are not seeking to hold the defendant liable for any fault of the employer.*fn2 See, e.g., Olson v. Pennzoil, 943 F.2d 881 (8th Cir. 1991); Ackerman v. Gulf Oil Corp., 555 F. Supp. 93 (D.N.D. 1982); Pechtl v. Conoco, Inc., 1997 ND 161, 567 N.W.2d 813; Fleck v. ANG Coal Gasification Co., 522 N.W.2d 455 (N.D. 1994). But, as to the claims that would impose derivative liability, there appears to be no need to seek implied indemnity from the employer given that the foregoing decisions appear to foreclose plaintiffs from imposing any liability upon defendant in the first instance. In other words, it appears plaintiffs are limited to those claims that, as a matter of law, impose direct liability on defendant, if certain prerequisites are proven, and then only for defendant's share of liability.
Given that the neither party has squarely addressed these issues and the obvious implications for some of plaintiffs' claims, the court will allow the parties to address the foregoing before making a definitive ruling. The court does not believe it needs anymore paper, but will take the parties arguments and citations to relevant case law during a recorded telephonic hearing that will be held on March 5, 2010 at 10:00 a.m. The parties should be prepared to address the authority cited above and why that authority is not dispositive as to the necessity of defendant impleading the employer.