5ASR3d73

AMERICAN SAMOA GOVERNMENT and BRENNAN

ISAAKO for AASU and AOLOAU CATHOLIC CHOIR, Plaintiff.

 

v.

 

NTV ELECTRONICS and MANAGER NING TAN

and KENNY AND HELEN YOUNG, PROGRESSIVE INSURANCE COMPANY, Defendants.

____________________

 

NTV ELECTRONICS and MANAGER NING TAN,

and KENNY and HELEN YOUNG, Cross-Claimants/Cross-Claim Defendants,

 

v.

 

OXFORD/PROGRESSIVE GROUP, et al.,

Defendants/Cross-Claim Plaintiffs.

 

High

Court of American Samoa

Trial

Division

 

CA

No. 74-00

 

March

19, 2001

 

 

[1] In

considering a motion to dismiss for failure to state a claim, the pleadings are

to be construed in the light most favorable to the claimant.

 

[2] A

cross-claim is any claim by one party against a co-party.

 

[3] T.C.R.C.P. 13(g)

permits parties to assert cross-claims, arising out of the same transaction or

occurrence that is the subject matter either of the original action or of a

counterclaim therein, or that relates to any property that is the subject

matter of the original action.

 

[4] A cross-claim fails to state a

claim, and is subject to dismissal under Rule 12(b)(6), if it merely requests

indemnity from a co-party but does not assert a plea for affirmative relief

against the co-party.

 

[5]

Cross-claims for indemnity are permitted.

 

[6]

Cross-claims for indemnity must be timely made where they are available.

 

Before RICHMOND, Associate Justice, ATIULAGI, Associate Judge, and

SAGAPOLUTELE, Associate Judge.

 

Counsel:           For Plaintiff, Albert Mailo,

Attorney General

 For Defendants and Cross-Claim Defendants,

Paul F. Miller

 For Defendants and Cross-Claim Plaintiffs, Roy

J.D. Hall, Jr.

 

ORDER GRANTING MOTION TO DISMISS

 

Facts

 

Plaintiff American Samoa Government (“ASG”) brought

this consumer protection action for Plaintiffs Brennan Isaako, acting on behalf

of the Aoloau Catholic Choir (collectively “the choir”) pursuant to A.S.C.A. §§

3.0302 and 27.0401 on July 14, 2000.  Allegedly,

the choir left their Technics Console Organ at Defendant NTV Electronics

(“NTV”) store on August 11, 1999, to correct its tone, and the store promptly

burned down in the evening of the same day. 

ASG and the choir ask for a judgment over $5,000 against Defendant Ning

Tan (“Tan”), as NTV’s store manager, Defendants Helen and Kenny Young (“the

Youngs”), as principals of NTV, and Defendant Progressive Insurance Company

(“Progressive”).

 

NTV, Tan and the Youngs filed their answer and

cross-claims on August 9, 2000.  The

cross-claims alleged that Progressive insured South Star International, Inc.

(“SSI”), and the negligence of SSI’s employees caused the fire resulting in

damage to NTV and Tan.  The Youngs may

also be principals of SSI, and counsel for NTV, Tan and the Youngs represents

SSI in another pending action.  See

Progressive Ins. Co. v. S. Star Int’l, Inc., 4 A.S.R.3d 147 (Trial Div.

2000).  SSI has not been joined as a

party to this case.

 

Progressive filed its answer and cross-claim on August

24, 2000.  The cross-claim seeks

indemnity against NTV and Tan, if Progressive is held liable to ASG and the

choir.  NTV, Tan, and the Youngs filed a

motion to dismiss this cross-claim on September 8, 2000.  Next, Progressive filed a motion for

protective order related to discovery proceedings initiated by counsel for NTV,

Tan and the Youngs, as well as for T.C.R.C.P. 11 sanctions against him.  NTV, Tan and the Youngs then filed a motion

for Rule 11 sanctions against Progressive’s counsel.  The motion to dismiss is the subject of this

current order.

 

Discussion

 

Progressive claims that NTV and Tan

are liable to the choir for the loss of the organ under the choir’s “contract

of bailment,” where defendants NTV and Tan have a privity of contract with the

choir as bailor and bailee. Progressive asks that NTV and Tan indemnify it and

pay judgment if the court finds it liable to the choir for loss of the organ.

 

[1] NTV, Tan

and the Youngs submitted their motion to dismiss this cross-claim based on the

ground that Progressive “[failed] to state a claim upon which relief can be

granted.”  T.C.R.C.P. 12(b)(6).  A motion to dismiss for failure to state a

claim will be denied unless it appears beyond a doubt that no set of facts can

be proven which would entitle the claimant to relief.  Moeisogi v. Faleafine, 5

A.S.R.2d 131, 134 (Land and Titles Div. 1987); Conley v. Gibson, 355

U.S. 41, 45-46 (1957).  The pleadings are

construed in the light most favorable to the claimant.  Beaver v. Cravens, 17 A.S.R.2d

6, 8 (Trial Div. 1990); NL Indus., Inc. v. Kaplan, 792 F.2d

896, 898 (9th Cir. 1986).  The burden of

proving the absence of a claim rests on the movant.  Moeisogi, 5 A.S.R.2d at 134; Kehr

Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.

1991).

 

NTV, Tan and the Youngs assert that Progressive has failed

to state a claim on which relief can be granted, because it “lacks standing to

assert any contractual claim, and, having suffered no loss, is not entitled to

assert a claim based on tort.”  This

argument very obliquely asserts the relevant law, but is essentially correct.[1]

[2-3]

T.C.R.C.P. 13(g) permits parties to assert cross-claims, defined by “any claim

by one party against a co-party” arising out of the same transaction or occurrence

that is the subject matter either of the original action or of a counterclaim

therein, or that relates to any property that is the subject matter of the

original action.  See also 6 Charles Alan Wright et al., Federal Practice

and Procedure § 1431 (2d ed. 1990). 

T.C.R.C.P. 8(a) further requires claims to consist of “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Because

of Rule 8(a), the federal courts have held that “Rule 13(g) is not a general

provision for indemnity or contribution. 

It is a procedural device for facilitating affirmative claims for

relief among co-parties to a lawsuit.”  Conn.

Gen. Life Ins. v. Universal Ins. Co., 838 F.2d 612, 623 (1st Cir.

1988).

 

[4] It is not

sufficient for the cross-claim to merely allege blamelessness and lack of

liability against the opposing party’s claim. 

A claimant must present a claim for affirmative relief against its

codefendant, not merely facts relieving it from liability for plaintiff’s

claim, in order to avoid subjecting the cross-claim to dismissal by the

court.  Conn. Gen. Life Ins, 838

F.2d at 623; Jones v. Ill. Dep’t of Rehab. Services, 689 F.2d 724, 733

(7th Cir. 1982); Wash. Bldg. Realty Corp. v. Peoples Drug Stores, Inc., 161

F.2d 879, 880 (D.C.Cir. 1947).  A

cross-claim thus fails to state a claim, and is subject to dismissal under Rule

12(b)(6), if it merely requests indemnity from a co-party but does not assert a

plea for affirmative relief against the co-party.

 

Washington Building involved a personal injury action

against a landlord and tenant, where the defendant tenant cross-claimed against

the defendant landlord, alleging that plaintiff’s injury occurred in a public

passageway maintained by the landlord. 

161 F.2d at 879.  The Court

dismissed this cross-claim, holding that these facts may relieve the claimant

tenant from any liability for plaintiff’s claim, but they do not constitute a

claim for affirmative relief against the co-defendant. Id. at 880.  The Court stated that:

 

[Claimant] alleges facts that relieve

it of any and all liability for plaintiff’s injury and it makes [co­defendant]

solely responsible for the plaintiff’s injury. 

It is not alleged that the parties are jointly liable, as a result of

which a claim for contribution would arise, nor that [claimant] is only

secondarily liable, as a result of which it would have a claim for indemnity,

nor that there is a contract between [claimant] and [co­defendant] which would

entitle [claimant] to complete indemnity. 

In short, in its cross-claim [claimant] has alleged only facts that

constitute as to it a complete defense to the original tort action, and nothing

constituting a claim against [co-defendant].

 

Id.  This statement

clarifies what constitutes a claim for affirmative relief, rather than a simple

conclusory statement of entitlement to indemnity.

 

[5-6] The cross-claim in this case is

similar to Washington Building in that Progressive argues for indemnity

from co-defendants NTV and Tan based, not on its own obligations or duties with

those co-parties, but rather on those co-parties’ duties to the choir.  Cross-claims for indemnity are

permitted.  Gentry v. Wilmington Trust

Co., 321 F. Supp. 1379, 1383-85 (D. Del. 1970).  Indeed, cross-claims for indemnity must be

timely made where they are available.  Martell

v. Boardwalk Enter., Inc., 748 F.2d 740, 749 (2d Cir. 1984).  However, in this case, Progressive’s request

for indemnity is not based on a claim for affirmative relief from NTV and Tan,

but rather on the complete defense to the claims of ASG and the choir arising

out of NTV and Tan’s bailment contract with the choir.  The duty of NTV and Tan under the bailment

contract extends only to the choir, and not to Progressive. Progressive cannot,

therefore, stake a claim for affirmative relief upon the bailment

contract.  See Jones, 689

F.2d at 733.

 

Because Progressive has failed to

state a claim for affirmative relief against a co-party in contravention of the

T.C.R.C.P. 8(a) and 13(g) requirements for cross-claims, we will dismiss

Progressive’s cross-claim against NTV and Tan.

 

Order

 

The motion to dismiss is granted.

 

It is so ordered.

 

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