Too, Inc. v. Kohl’s Department Stores, Inc

213 F.R.D. 138 (S.D.N.Y. 2003)

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Nature of the Case

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Facts

D1 hired DeCaro and Abraham to start up a girl’s sleep-wear division. DeCaro was the Head Designer for D1 and Abraham was the salesperson in charge of the D account, responsible for all sales to D. D1 alleges that DeCaro represented to D's production manager, that she had created each of the designs P alleges infringed their copyrights and trademarks and that she knew her designs were to be sold by D1 to third party retailers, including D. D1 implicates Abraham for potential contribution by alleging that she proceeded to sell girls sleep-wear with the alleged infringing copyright and trademarks, knowing the sleep-wear to contain designs that allegedly infringed P's copyrights and trademarks. Complaints were filed, and discovery was complete. No trial date has been set at this time. D1 seeks to implead DeCaro and Abraham to enable it to seek contribution and indemnification. P opposes the motion on the grounds that (i) there is no factual basis for D1's proposed allegations; (ii) there is no legal basis for D1's proposed third-party complaint; (iii) impleading DeCaro and Abraham will prejudice them; (iv) D1deliberately delayed filing this motion; and (v) the third-party complaint will delay and/ or unduly complicate the trial.