## Facts

- Too, Inc. owned copyrighted and trademarked girls’ clothing designs and sued Kohl’s Department Stores, Inc. (retailer) and Windstar Apparel, Inc. (supplier/manufacturer) for copyright and Lanham Act infringement based on girls’ sleepwear sold by Kohl’s.
- Windstar created a girls’ sleepwear division and hired Mia DeCaro as designer and Paula Abraham as salesperson.
- DeCaro designed the garments at issue; Abraham marketed and sold them to retailers, including Kohl’s.
- Windstar alleged DeCaro and Abraham knew of Too’s protected rights and materially contributed to the alleged infringement.
- After answering, Windstar moved for leave under Fed. R. Civ. P. 14(a) to file a third-party complaint against DeCaro and Abraham seeking contribution and indemnification for any liability to Too.
- Too opposed, arguing the motion was untimely, lacked factual and legal support, would prejudice parties, and would complicate and delay the case.

## Issues

1. Whether Windstar should be granted leave under Fed. R. Civ. P. 14(a) to implead DeCaro and Abraham after the 10-day period following service of its answer.
2. Whether Windstar could assert indemnification, contribution, or both against DeCaro and Abraham for potential liability arising from the alleged infringement.

## Decision

- The court granted Windstar leave to file a third-party complaint under Rule 14(a).
- The court permitted Windstar to proceed on a contribution theory against DeCaro and Abraham.
- The court rejected Windstar’s indemnification theory because Windstar alleged its own participation in the wrongdoing and identified no contractual or special basis for shifting all liability.

## Legal Principles

- Rule 14(a) impleader is discretionary and is commonly evaluated by considering timeliness, potential prejudice, risk of undue delay or complication, and whether the proposed third-party claim is dependent on the outcome of the main action.
- Impleader is favored when it increases judicial efficiency by resolving related, transactionally connected disputes in one action, particularly claims seeking allocation of liability.
- Indemnification is generally unavailable among jointly culpable actors absent a contract or a relationship making the impleading party only vicariously or derivatively liable.
- Contribution may be available to apportion liability among multiple actors whose conduct allegedly contributed to the same injury, and may be asserted via Rule 14(a) when adequately pleaded.

## Conclusion

The court allowed Windstar to implead the designer and salesperson under Rule 14(a) because the motion was sufficiently timely and posed minimal added prejudice or delay, but limited the third-party case to contribution and disallowed indemnification in the absence of a contractual or purely vicarious basis for full shifting of liability.


Too, Inc. v. Kohl’s Dep’t Stores, Inc., 213 F.R.D. 138 (S.D.N.Y. 2003)