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Payne v. Gavor

July 14, 2006

THOMAS E. PAYNE, PLAINTIFF,
v.
HAROLD DENNIS GAVOR, DEFENDANT.



The opinion of the court was delivered by: Michael R. Merz Chief United States Magistrate Judge

District Judge Thomas M. Rose, Chief Magistrate Judge Michael R. Merz

DECISION AND ORDER DENYING MOTION TO ADD MONTGOMERY COUNTY COMMISSIONERS AS THIRD-PARTY DEFENDANTS

This judgment debtor examination proceeding is before the Court on Plaintiff's Motion to Add the Montgomery County Commissioners as third-party defendants in the case out of which the judgment arises, Payne v. Zimmers, et al., 3:02-cv-531. The Motion is denied for the following reasons.

First of all, third-party defendants could not be added in this ancillary judgment debtor proceeding. To impose liability for the judgment on any person would require adding them as parties in the original case. Second, only a defending party can add a person as a third-party defendant under Fed. R. Civ. P. 14. In third-party practice, a defending party asserts that if he is held liable to the plaintiff, then another person (the third-party defendant) is liable to him for the judgment.

To impose liability on the Montgomery County Commissioners (or any other person) for the acts alleged in the original case, Plaintiff would have to reopen the judgment in that case. However, under Fed. R. Civ. P. 60, a motion to reopen a judgment must be made within one year after the United States District Court for the Southern District of Ohio Western Division at Dayton judgment is entered. The final judgment in 3:02-cv-531 was entered on July 18, 2003, virtually three years ago.

Finally, Plaintiff asserts liability against the Montgomery County Commissioners because he alleges that they had title in their official capacity to a vehicle in which Defendant was transported in aid of the tort he committed against the Plaintiff. That allegation is completely insufficient to state a claim upon which relief can be granted: the Regional Transit Authority is not liable if a robber of a downtown bank takes the bus downtown.

The Motion to Add is denied.

20060714

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