The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Third-party defendant J.J.L. Incorporated, d/b/a American
Roofing & Repair Co. ("American"), seeks leave of this Court
to withdraw its previously filed answer to J. Robert Carlton's
third-party complaint and moves to dismiss the third-party
complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. For reasons set forth below, American's
motion is denied.
Leaseway Warehouses, Inc. ("Leaseway") brought the original
action against Carlton in March of 1982.*fn1 Leaseway alleged
in Count I of its complaint that it had entered into a lease
with Carlton for a warehouse whereby Carlton, as Lessor,
agreed to repair the warehouse roof prior to the start of the
lease term. In order to comply with the agreement, Carlton
employed American to perform the roofing repairs. Leaseway
contended it suffered damages since the repair work was not
done in a good and workmanlike manner and that, as a result,
Carlton was in breach of the lease.
On April 19, 1982, Carlton filed a third-party complaint
against American contending that American breached both an
implied and express warranty to perform the repairs in a
proper and workmanlike manner and that if Carlton had to
respond to Leaseway with damages due to the allegedly improper
repair work, Carlton would then be entitled to recover damages
against American. American's grounds for its motion to dismiss
the third-party complaint are that Carlton is not entitled to
indemnity from American under the substantive law of Illinois.
For purposes of a motion to dismiss, we must take the
allegations of Carlton's complaint as true, viewing them and
any reasonable inferences to be drawn from them in the light
most favorable to him. Powe v. City of Chicago,
664 F.2d 639, 642 (7th Cir. 1981). Carlton's complaint should be
dismissed, moreover, only if it appears beyond doubt that he
can prove "no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
Third-party practice in the federal courts is regulated by
Rule 14(a) of the Federal Rules of Civil Procedure. This rule
permits a defendant to bring a third party into an action,
provided the third party is liable to the defendant for the
claim made against him. The rule reads, in pertinent part, as
The purposes of Rule 14 are to avoid circuity of action and
multiplicity of suits, to prevent the necessity of trying
several related claims in different lawsuits and to enable all
related claims to be disposed of in one action, thereby
simplifying and expediting litigation, eliminating unnecessary
expense and saving the time of the courts. Colton v.
Swain, 527 F.2d 296 (7th Cir. 1975). Hence, the rule is
liberally construed to effectuate its intended purpose, and
the decision to grant leave to bring in a third-party
defendant is left within the sound discretion of the court.
As stated in the rule, it must appear that the third party
is one who is, or may be, liable to the defendant for all or
part of the plaintiff's claim against such defendant. However,
the possible liability of the prospective third party must be
based on a theory of recovery recognized under the controlling
state substantive law. 527 F.2d at 300.
American contends that Carlton's third-party complaint must
be dismissed since Illinois law does not recognize the
Ryan Doctrine of implied contractual indemnification
in building contractor actions. See Ryan Stevedoring Co.
v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct.
232, 100 L.Ed. 133 (1956). In Ryan, the court found
an implied indemnity agreement between a stevedoring company
and a shipowner. The shipowner had contracted with Ryan to
load the owner's ship. The stevedoring operations were not
performed in a good and workmanlike manner, and, as a result,
one of the stevedore's employees was injured. The injured
employee brought an action against the shipowner to recover
for the injuries he sustained. The stevedoring company was
impleaded as a third-party defendant and ordered to indemnify
the shipowner for the liability caused by the stevedore's
breach of an implied warranty to perform its operations in a
proper and safe manner. 350 U.S. 133, 76 S.Ct. 237.
While American correctly states that Illinois courts have
refused to apply the Ryan Doctrine to building
contractor indemnity actions, citing as authority Wrobel
v. Trapani, 129 Ill. App.2d 306, 264 N.E.2d 240 (1st Dist.
1970); J.L. Simmons Co., Inc. v. Fidelity and Casualty
Co., 511 F.2d 87 (7th Cir. 1975), and Gadd v. John
Hancock Mutual Life Insurance Co., 5 Ill. App.3d 152,
275 N.E.2d 285 (1st Dist. 1971), its reliance on this argument is
Wrobel and Gadd were building
contractor-subcontractor indemnity actions, and
Simmons was a contractor-insurer indemnity action. In
each case, a worker brought an action under the Illinois
Structural Work Act, Ill.Rev.Stat. 1961, ch. 48, §§ 60-69,
against their respective contractors for personal injuries
suffered on the job site. The building contractors, in turn,
sought indemnification for liability imposed through the Act
by asserting the existence of an implied indemnity contract
under Ryan; however, the Illinois courts were limited
to the provisions of the Structural Work Act in their
determination of whether, ...