David Z. Myerberg, Esq. D. Michael Burke, Esq.
Charles J. Crooks, Esq. Burke, Schultz, Harman & Jackson
Jackson & Kelly, PLLC Martinsburg, West Virginia
Morgantown, West Virginia Barry J. Nace, Esq.
Attorneys for the Petitioner Paulson & Nace
Washington, District of Columbia
Attorneys for the Respondents
The opinion of the Court was delivered PER CURIAM.
JUSTICE MCGRAW dissents and reserves the right to file a dissenting opinion.
JUSTICE ALBRIGHT concurs, in part; and dissents, in part; and reserves the right to file a separate opinion.
1. In determining whether to entertain and issue the writ of prohibition for
cases not involving an absence of jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether
the party seeking the writ has no other adequate means, such as direct appeal, to obtain the
desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter
of law; (4) whether the lower tribunal's order is an often repeated error or manifests
persistent disregard for either procedural or substantive law; and (5) whether the lower
tribunal's order raises new and important problems or issues of law of first impression.
These factors are general guidelines that serve as a useful starting point for determining
whether a discretionary writ of prohibition should issue. Although all five factors need not
be satisfied, it is clear that the third factor, the existence of clear error as a matter of law,
should be given substantial weight. Syllabus point 4, State ex rel. Hoover v. Berger, 199
W. Va. 12, 483 S.E.2d 12 (1996).
2. 'The provisions for impleader under Rule 14(a), West Virginia Rules of
Civil Procedure, . . . are within the sound discretion of the trial court . . . .' Syl. Pt. 5, in
part, Bluefield Sash & Door Co., Inc. v. Corte Constr. Co., 158 W. Va. 802, 216 S.E.2d 216
(1975), overruled on other grounds, Haynes v. City of Nitro, 161 W. Va. 230, 240 S.E.2d
544 (1977). Syl. pt. 5, in part, Shamblin v. Nationwide Mutual Insurance Co., 183 W. Va.
585, 396 S.E.2d 766 (1990).
Albert Leung, M.D. (hereinafter Dr. Leung), seeks an original jurisdiction writ of prohibition to prevent the respondent Judge, the Honorable David H. Sanders, Judge of the Circuit Court of Berkeley County (hereinafter the circuit court), from enforcing an order denying Dr. Leung leave to file a third-party complaint in the underlying medical malpractice action. Having reviewed the petition for prohibition and the supporting memorandum of law, the response, and all the accompanying exhibits, we find the circuit court exceeded its legitimate powers by committing clear legal error. Consequently, we grant the writ as moulded.
On or about March 21, 2003, Dr. Leung filed a motion for leave to file a third-
party complaint against Dr. Wanger and Shenandoah Valley Medical Systems, Inc.
(See footnote 1)
This third-party complaint alleged that Dr. Wanger was an
employee of Shenandoah and that Drs. Leung and Wanger had an agreement whereby Dr.
Wanger would provide medical care to Dr. Leung's patients when Dr. Leung was
unavailable. The complaint also alleged that Dr. Wanger saw Ms. Schell in Dr. Leung's
absence and provided medical care to her, which included testing and diagnosis upon which
Dr. Leung relied in subsequently treating Ms. Schell. Dr. Leung further alleged that if he
would be found liable, then all or some of the liability would be the result of Dr. Wanger
and/or Shenandoah's negligence. Thus, Dr. Leung sought to make Dr. Wanger and
Shenandoah third-party defendants for indemnification and/or contribution.
The parties before this Court agree that at the time Dr. Leung filed his motion
for leave to bring in Dr. Wanger and Shenandoah, discovery was not yet complete.
According to Dr. Leung, he had yet to take Ms. Schell's deposition, and Ms. Schell
confirms that the deposition was continued at least once prior to the discovery deadline.
Further, several of the expert witnesses in the case had not been deposed at the time of Dr.
The circuit court refused permission to file the third-party complaint by order
entered April 25, 2003. In denying the motion, the circuit court found: (1) the filing of the
motion barely two months before the trial date was untimely and prejudicial to Ms. Schell;
(2) the third-party complaint failed to contain any allegations of negligence or basis of
liability against Dr. Wanger so that leave to file could not properly be had; and, (3) Dr.
Leung failed to comply with the screening requirements of the West Virginia Medical
Professional Liability Act in that he failed to provide a screening certificate of merit.
W. Va. Code § 55-7B-6(b) (2001) (Supp. 2002). Dr. Leung then filed a petition for a writ
of prohibition with this Court. We issued a rule to show cause on May 13, 2003.
In the absence of a scheduling order containing a deadline to join additional parties as required by Rule 16 of the West Virginia Rules of Civil Procedure, the timeliness of a motion to file a third-party complaint is analyzed under Rule 14 of the West Virginia Rules of Civil Procedure. West Virginia Rule of Civil Procedure 16(b)(1) provides, in pertinent part, that [e]xcept in actions exempted by the Supreme Court of Appeals, a circuit court shall after consulting with the attorneys for the parties . . . enter a scheduling order that limits the time: To join other parties and to amend the pleadings . . . . Thus, Rule 16(b) directs that, [a]s long as the case is not exempted . . . the court must issue a written scheduling order . . . . Fed. R. Civ. P. 16 advisory committee's note (1983 amendment). (See footnote 3) In other words, [u]nder Rule 16(b)(1) it is mandatory that a scheduling order fix dates for joining other parties and to amend the pleadings. Franklin D. Cleckley et al., Litigation Handbook on West Virginia Rules of Civil Procedure § 16(b)(1), at 357 (2002). Notwithstanding that Rule 16(b)(1) is mandatory, the scheduling order lacked a deadline for adding parties.
Because of the scheduling order's failure to include a cut-off date to add
additional parties, Dr. Leung asserts he did not violate a deadline for filing his motion for
leave. Accordingly, [his] motion for leave to file a third-party complaint must be viewed
as timely submitted and thus, granted. We disagree with this characterization.
The scheduling order in this case simply did not contain a deadline for joining other parties. In such a circumstance, we cannot ignore the obvious and indulge in the fiction that a deadline was set; rather, we must take the facts as they actually existed and proceed upon the recognition that no Rule 16(b)(1) deadline governing the joining of additional parties was included in the scheduling order in this case. (See footnote 4) Thus, we think that the proper approach is to examine the issue under West Virginia Rule of Civil Procedure 14, the Rule that lays out the guidelines under which defendants and plaintiffs may bring third parties into the action. Cleckley, supra, § 14, at 323. Cf. Campania Mgt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 849 n.1 (7th Cir. 2002) (In the absence of such an order [delineating a deadline for amending the pleadings], we shall analyze this particular issue under the rubric of Rule 15 [the rule of civil procedure governing the amending of pleadings].). (See footnote 5)
Rule 14(a) of the West Virginia Rules of Civil Procedure provides, in pertinent part:
At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff. The third-party plaintiff need not obtain leave to make the service if the third-party plaintiff files the third-party complaint not later than 10 days after serving the original answer. Otherwise the third-party plaintiff must obtain leave on motion upon notice to all parties to the action.
In short, Rule 14(a) provides that before a third-party may be impleaded (See footnote 6) by a first-party defendant, a first-party defendant must file a motion for leave to bring in a third-party defendant, unless the motion is made within ten days of service of the moving party's answer. Thus, the Rule maintains a screening function for circuit courts with regard to motions to implead that are filed after the close of this ten-day window. Fed. R. Civ. P. 14 advisory committee's note (1963 amendment) (The amended subdivision preserves the value of a preliminary screening, through the leave procedure, of impleaders attempted after the 10-day period.).
In this case, it is undisputed that Dr. Leung's motion for leave to file came
more than ten days after the original answer had been served.
(See footnote 7)
Thus, he was obligated to
seek leave of the circuit court to file the third-party complaint, for [i]f a defendant wishes
to implead after ten days of service of his/her answer, leave of court is necessary.Cleckley, supra, § 14(a)[a], at 327. 'The provisions for impleader under Rule 14(a),
West Virginia Rules of Civil Procedure, . . . are within the sound discretion of the trial court
. . . .' Syl. Pt. 5, in part, Bluefield Sash & Door Co., Inc. v. Corte Constr. Co., 158 W. Va.
802, 216 S.E.2d 216 (1975), overruled on other grounds, Haynes v. City of Nitro, 161
W. Va. 230, 240 S.E.2d 544 (1977). Syl. pt. 5, in part, Shamblin v. Nationwide Mut. Ins.
Co., 183 W. Va. 585, 396 S.E.2d 766 (1990). Therefore, the question before us is whether
the circuit court abused its discretion in finding Dr. Leung's motion for leave to bring a
third-party complaint against Dr. Wanger and Shenandoah to be untimely.
'In general, an abuse of discretion occurs when a material factor deserving
significant weight is ignored, when an improper factor is relied upon, or when all proper
and no improper factors are assessed but the circuit court makes a serious mistake in
weighing them.' State v. Hedrick, 204 W. Va. 547, 553, 514 S.E.2d 397, 403 (1999)
(quoting Gentry v. Mangum, 195 W. Va. 512, 520 n.6, 446 S.E.2d 171, 179 n.6 (1995)).
While this is an accepting standard, [w]e have also cautioned, however, that we will not
simply rubber stamp the trial court's decision when reviewing for an abuse of discretion.
Id., 204 W. Va. at 553, 514 S.E.2d at 403. With this understanding, we turn to the facts of
the case before us.
Normally, a party must not be dilatory in proceeding . . . after a basis for
impleader becomes clear. 3 Moore's Federal Practice § 14.21, at 14-58 (3d ed. 2003).
Ideally, of course, motions for leave to implead a third party under Rule 14 should be
made promptly or 'as soon as possible after the filings of the pleadings in the suit.' 6
Charles Alan Wright et al., Federal Practice and Procedure § 1454, at 423 (2003) (footnote
omitted). However, we agree with Dr. Leung that some delay in third-party practice may
be inevitable and that there is usually nothing talismanic about delay alone. 3 Moore's
Federal Practice § 14.21, at 14-57. Instead, courts must examine if the reason for the
delay is excusable and analyze any resulting prejudice. Id. We do so now.
The circuit court found Dr. Leung's motion untimely by relying on Shamblin
v. Nationwide Mutual Insurance Co., 183 W. Va. 585, 597, 396 S.E.2d 766, 778 (1990),
where we found [u]nder the facts of [that] case, . . . no abuse of the trial court's discretion
in its decision to deny appellant's motion for a third-party action. We explained that,
[t]he appellant's unexplained delay in filing the motion until shortly prior to trial would
have prejudiced the plaintiff had it been granted. Id., 183 W. Va. at 597, 396 S.E.2d at
778. However, under the facts of the instant case, we do not think that granting the
impleader motion would have resulted in such significant delay to the case or prejudice to
Ms. Schell or Dr. Wanger and Shenandoah as to justify the circuit court from precluding
Dr. Leung from impleading Dr. Wanger and Shenandoah.
At the time Dr. Leung filed his impleader motion, discovery in this case was evidently far from complete. Neither Ms. Schell nor several expert witnesses in this case had been deposed. Thus, putting aside Dr. Leung's motion for impleader, we find it difficult to fathom how this case could have been ready for trial on May 20, 2003. It is apparent, therefore, that the trial date in this case would have had to be moved notwithstanding the impleader motion. Thus, we cannot attribute any significant delay in this case as flowing from the impleader motion. We conclude that the circuit court failed to consider this material fact in denying leave to implead and, thus, abused its discretion. Hence, we grant the writ as moulded. (See footnote 8)
Rule 14 preserves the value of a preliminary screening, through the leave procedure, of impleaders attempted after the 10-day period. Fed. R. Civ. P. 14 advisory committee's note (1963 amendment). A circuit court enjoys the discretion to strike a third- party claim, inter alia, if it is obviously unmeritorious . . . . Id. To determine if the complaint is obviously unmeritorious, we must examine West Virginia Rule of Civil Procedure 8(a), which sets out general guidelines for pleading claims and defenses. Cleckley, supra, § 8, at 184.
Rule 8(a) provides, in pertinent part, [a] pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks. Rule 8(a) sets forth the pleading standard for all pleadings seeking affirmative relief[,] and applies not only to an original claim contained in a complaint, but also to a pleading containing a claim for relief that takes the form of a . . . third-party claim. Wright, supra, § 1205, at 86 (footnote omitted). (See footnote 9) Rule 8(a) is, therefore, applicable to Dr. Leung's proposed third-party complaint.
As compared to the old common law pleading, [t]he West Virginia Rules of
Civil Procedure have considerably liberalized the rules of pleading as respects stating a
claim . . . in a civil action. M.W. Kellogg Co. v. Concrete Accessories Corp., 157 W. Va.
763, 772, 204 S.E.2d 61, 67 (1974). Now,
[a]ll that the pleader is required to do under Rule 8(a) is set forth sufficient information to outline the elements of his/her claim or to permit inferences to be drawn that these elements exist. Rule 8(a) contemplates a succinct complaint containing a plain statement of the nature of the claim together with a demand for judgment.
We think it evident that Dr. Leung's third-party complaint satisfies Rule 8(a)'s minimal pleading requirements. Specifically, and contrary to the circuit court's conclusion that it fails to contain any allegations of negligence, Dr. Leung's proposed third-party complaint contains an allegation that any liability found against Dr. Leung would be the result of Dr. Wanger's and Shenandoah's negligence. (Emphasis added). Any additional information that the parties need is to be gathered from the 'liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues.' Stricklen v. Kittle, 168 W. Va. 147, 163, 287 S.E.2d 148, 157 (1981) (quoting Conley v. Gibson, 355 U.S. 41, 47-48, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80, 85-86 (1957) (footnote omitted)).
Because Dr. Leung's proposed third-party complaint met the minimal
requirements of Rule 8(a), it cannot be obviously unmeritorious as required for refusal
to file under Rule 14(a). Consequently, we find the circuit court committed clear legal error
in finding Dr. Leung's third-party complaint insufficient. Consequently, we grant the writ
Generally, standing is defined as '[a] party's right to make a legal claim or
seek judicial enforcement of a duty or right.' Findley v. State Farm Mut. Auto. Ins. Co., ___
W. Va. ___, ___, 576 S.E.2d 807, 821 (2002) (quoting Black's Law Dictionary 1413 (7th
ed. 1999)). 'Our standing inquiry focuses on the appropriateness of a party bringing the
questioned controversy to the court.' Id.,___ W. Va. at ___, 576 S.E.2d at 822 (quoting
Louisiana Envtl. Action Network v. Browner, 87 F.3d 1379, 1382 (D.C. Cir. 1996)). One
specific aspect of standing is that one generally lacks standing to assert the rights of
another. We now turn to explore this aspect of standing.
We previously have recognized the reticence courts have in allowing parties
to attempt to vindicate the rights of third-parties:
[t]raditionally, courts have been reluctant to allow persons to claim standing to vindicate the rights of a third party on the grounds that third parties are generally the most effective advocates of their own rights and that such litigation will result in an unnecessary adjudication of rights which the holder either does not wish to assert or will be able to enjoy regardless of the outcome of the case.
Snyder v. Callaghan, 168 W. Va. 265, 279, 284 S.E.2d 241, 250 (1981) (citation omitted).
In Kessel v. Leavitt, 204 W. Va. 95, 118, 511 S.E.2d 720, 743 (1998) (quoting Warth v. Seldin, 422 U.S. 490, 509, 95 S. Ct. 2197, 2210, 45 L. Ed. 2d 343, 361 (1975)), we recognized the specific 'prudential standing rule that normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves[,]' and held that one defendant lacked standing to raise a co-defendant's objection to the circuit court's exercise of personal jurisdiction over the co-defendant. In light of our clear and long-standing precedent against third-party standing, the circuit court committed clear legal error in permitting Ms. Schell to litigate Dr. Wanger's and Shenandoah's potential rights. (See footnote 14) Thus, we grant the writ as moulded. (See footnote 15)
Below, Dr. Leung's impleader motion and third-party complaint treated Dr. Wanger and Shenandoah identically, and in his petition for a writ of prohibition and memorandum of law, Dr. Leung treats the circuit court's refusal to file the third-party complaint as encompassing both Dr. Wanger and Shenandoah. Further, if the circuit court found that the motion was untimely as to Dr. Wanger, it is only logical to assume that the court found it untimely as to Shenandoah as well. Thus, we construe the order denying Dr. Leung's motion as denying him permission to implead both Dr. Wanger and Shenandoah. See 46 Am. Jur. 2d Judgments § 100, at 454 (1994) (If there is any uncertainty in the judgment as to the party for or against whom it is rendered, such uncertainty may be removed, and the validity of the judgment upheld, by resort to the entire record, including the pleadings and process, where such identity may be ascertained. (footnote omitted)).
The screening certificate of merit shall be executed under oath by a health care provider qualified as an expert under the West Virginia rules of evidence and shall state with particularity: (1) The expert's familiarity with the applicable standard of care in issue; (2) the expert's qualifications; (3) the expert's opinion as to how the applicable standard of care was breached; and (4) the expert's opinion as to how the breach of the applicable standard of care resulted in injury or death. A separate screening certificate of merit must be provided for each health care provider against whom a claim is asserted. The person signing the screening certificate of merit shall have no financial interest in the underlying claim, but may participate as an expert witness in any judicial proceeding.