EI DuPont De Nemours and Company v. Mechanical Integrity Inc.

MOTION for Leave to File to File Third Party Complaint -

D. Del.October 1, 2007

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE E.I. DU PONT DE NEMOURS AND ) COMPANY, ) Plaintiff, ) C.A. No.: 07-346 SLR v. ) MECHANICAL INTEGRITY, INC., ) JURY TRIAL DEMANDED Defendant. ) DEFENDANT’S MOTION FOR LEAVE TO FILE A THIRD PARTY COMPLAINT COMES NOW, Defendant, Mechanical Integrity, Inc., by and through its undersigned counsel, and moves this Court for an Order granting leave to file a Third Party Complaint against Mike Walker and NDT Equipment Services LTD. In support thereof, Defendant avers the following: 1. The Plaintiff filed a Complaint alleging that Defendant, Mechanical Integrity, Inc., failed to conduct a proper inspection of the pipeline at DuPont’s Louisville, which is used to carry chloroform. See copy of the Complaint attached hereto as Exhibit “A”. 2. Defendant, Mechanical Integrity, Inc., subcontracted with Mike Walker and NDT Equipment Services LTD, as an independent contractor, to inspect the DuPont Louisville, Kentucky pipeline. 3. Mike Walker and NDT Equipment Services LTD had a duty to properly inspect the pipeline at DuPont’s Louisville, Kentucky facility. 4. Mike Walker and NDT Equipment Services LTD had impliedly warranted that all work performed under its agreement with Mechanical Integrity, Inc. would be free from defect performed in accordance with industry standards in a workmanlike manner and was fit and suitable for Mechanical Integrity, Inc.’s intended purpose. Case 1:07-cv-00346-SLR Document 16 Filed 10/01/2007 Page 1 of 4 5. If Plaintiff’s claims are proven true, Mike Walker and NDT Equipment Services LTD’s breach of contract and/or negligence and/or breach of warranty and/or misrepresentation proximately caused Plaintiff’s claimed injuries. 6. If Plaintiff’s claims are proven true, due to Mike Walker and NDT Equipment Services LTD’s breach of contract and/or negligence and/or breach of warranty and/or misrepresentation, Plaintiff suffered damages. Mechanical Integrity, Inc. is entitled to indemnification and contribution from Mike Walker and NDT Equipment Services LTD for the claims of Dupont. 7. A copy of the proposed Third Party Complaint is attached as Exhibit “B”. 8. Original defendants may file a Third Party Complaint under Federal Civil Procedure Rule 14, which describes third party practice, upon obtaining leave on motion. See Federal Civil Procedure Rule 14. Rule 14 was intended to be a way to bring a person not already a party into an existing action when the original defendant claims that the new party is or may be liable for all or part of plaintiff’s claims. McMichael v. Delaware Coach Co., 107 A.2d 895 (Del. 1954). WHEREFORE, Defendant, Mechanical Integrity, Inc. , hereby moves this Court for an Order allowing it leave to file a Third Party Complaint against Mike Walker and NDT Equipment Services LTD. REGER RIZZO KAVULICH & DARNALL LLP /s/ Louis J. Rizzo, Jr., Esquire Louis J. Rizzo, Jr., Esquire Delaware State Bar I.D. No. 3374 1001 Jefferson Plaza, Suite 202 Wilmington, DE 19801 (302) 652-3611 Dated: October 1, 2007 Attorney for Defendant Mechanical Integrity, Inc. Case 1:07-cv-00346-SLR Document 16 Filed 10/01/2007 Page 2 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE E.I. DU PONT DE NEMOURS AND ) COMPANY, ) ) Plaintiff, ) C.A. No.: 07-346 SLR v. ) ) MECHANICAL INTEGRITY, INC., ) JURY TRIAL DEMANDED ) Defendant. ) ORDER NOW this day of , 2007, upon consideration of Defendant’s Motion for Leave to File a Third Party Complaint, and any response thereto; IT IS HEREBY ORDERED that Defendant’s Motion for Leave to File a Third Party Complaint has been GRANTED. BY THE COURT: The Honorable Sue L. Robinson Case 1:07-cv-00346-SLR Document 16 Filed 10/01/2007 Page 3 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE E.I. DU PONT DE NEMOURS AND ) COMPANY, ) ) Plaintiff, ) C.A. No.: 07-346 SLR v. ) ) MECHANICAL INTEGRITY, INC., ) JURY TRIAL DEMANDED ) Defendant. ) CERTIFICATE OF SERVICE I, the undersigned, do hereby certify on this 1 day of October, 2007 that a true andst correct copy of Defendant’s Motion for Leave to File a Third Party Complaint has been served electronically and by first class mail, postage prepaid, to the following: Kathleen Furey McDonough, Esquire Sarah E. DiLuzio, Esquire Potter Anderson & Corroon LLP Hercules Plaza, 6 Floorth 1313 N. Market Street P.O. Box 951 Wilmington, DE 19899 REGER RIZZO KAVULICH & DARNALL LLP /s/ Louis J. Rizzo, Jr., Esquire Louis J. Rizzo, Jr., Esquire Delaware State Bar I.D. No. 3374 1001 Jefferson Plaza, Suite 202 Wilmington, DE 19801 (302) 652-3611 Attorney for Defendant Mechanical Integrity, Inc. Dated: October 1, 2007 Case 1:07-cv-00346-SLR Document 16 Filed 10/01/2007 Page 4 of 4 Case 1:07-cv-00346-SLR Document 16-2 Filed 10/01/2007 Page 1 of 13 Case 1:07-cv-00346-SLR Document 16-2 Filed 10/01/2007 Page 2 of 13 Case 1:07-cv-00346-SLR Document 16-2 Filed 10/01/2007 Page 3 of 13 Case 1:07-cv-00346-SLR Document 16-2 Filed 10/01/2007 Page 4 of 13 Case 1:07-cv-00346-SLR Document 16-2 Filed 10/01/2007 Page 5 of 13 Case 1:07-cv-00346-SLR Document 16-2 Filed 10/01/2007 Page 6 of 13 Case 1:07-cv-00346-SLR Document 16-2 Filed 10/01/2007 Page 7 of 13 Case 1:07-cv-00346-SLR Document 16-2 Filed 10/01/2007 Page 8 of 13 Case 1:07-cv-00346-SLR Document 16-2 Filed 10/01/2007 Page 9 of 13 Case 1:07-cv-00346-SLR Document 16-2 Filed 10/01/2007 Page 10 of 13 Case 1:07-cv-00346-SLR Document 16-2 Filed 10/01/2007 Page 11 of 13 Case 1:07-cv-00346-SLR Document 16-2 Filed 10/01/2007 Page 12 of 13 Case 1:07-cv-00346-SLR Document 16-2 Filed 10/01/2007 Page 13 of 13 Case 1:07-cv-00346-SLR Document 16-3 Filed 10/01/2007 Page 1 of 5 Case 1:07-cv-00346-SLR Document 16-3 Filed 10/01/2007 Page 2 of 5 Case 1:07-cv-00346-SLR Document 16-3 Filed 10/01/2007 Page 3 of 5 Case 1:07-cv-00346-SLR Document 16-3 Filed 10/01/2007 Page 4 of 5 Case 1:07-cv-00346-SLR Document 16-3 Filed 10/01/2007 Page 5 of 5