MEMORANDUM OPINION AND ORDER

A. JOE FISH, Chief Judge, District

Before the court is the motion of third-party defendants Van Enterprises, Inc. Employee Benefit Trust and Van Enterprises, Inc. (collectively, "Van") to dismiss defendant/third-party plaintiff Epoch Group, Limited Company ("Epoch")'s claims against them for (1) lack of standing and (2) failure to state a claim on which relief can be granted. Also before the court is Epoch's motion for leave to file an amended third-party complaint against Van. For the reasons discussed below, the motions are granted in part and denied in part.

I. BACKGROUND

On May 5, 2004, the plaintiffs, Baylor University Medical Center, Our Children's House at Baylor, Baylor Medical Center at Grapevine, Baylor Medical Center — Irving, and Baylor All Saints Medical (collectively, "Baylor"), filed their first amended complaint against Epoch seeking recovery for breach of contract and late payment of claims. See generally Plaintiffs' First Amended Complaint.

On May 24, 2004, Epoch filed a motion for summary judgment under FED. R. CIV. P. 56 arguing that, as a matter of law, (1) Baylor is not entitled to recover for breach of contract or for late payment of claims because Epoch is not a party to any contract with Baylor, and (2) the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq., completely preempts Baylor's breach of contract claims. See generally Defendant's Brief in Support of Third Motion to Dismiss/For Summary Judgment. On August 18, 2004, this court denied that motion and determined, among other things, that Baylor's breach of contract claim was not completely preempted by ERISA. See generally August 18, 2004, Memorandum Order. In response to motions by Epoch to reconsider Epoch's motion to dismiss as it relates to ERISA preemption, or in the alternative for leave to file another motion to dismiss reasserting its ERISA preemption argument, this court denied both requests. October 29, 2004, Memorandum Order.

On March 16, 2005, this court issued its scheduling order setting the trial for the court's four-week docket beginning January 3, 2006. Order Establishing Schedule and Certain Pretrial Requirements ("scheduling order") ¶ 2. Among the deadlines included in the court's scheduling order was a requirement that all amended pleadings were to be filed by June 16, 2005. Id. ¶ 3.

On April 7, 2005, Epoch filed a third-party complaint against Van, Defendant's Original Third Party Complaint ("Third-Party Complaint"), which Van answered on June 20, 2005. Van's Original Answer to Third Party Complaint. On that same date (four days after the amended pleadings were due), Van also filed the instant motion to dismiss Epoch's third-party complaint. Van Enterprises, Inc. Employee Benefit Trust's and Van Enterprises, Inc.'s Motion to Dismiss Pursuant to Rule 12(b)(1) and 12(b)(6) ("Motion to Dismiss"). On July 12, 2005, Epoch filed this motion for leave to file a first amended third-party complaint against Van. Motion for Leave to File First Amended Third-Party Complaint ("Motion for Leave"). Van has not filed a response to this motion, but both parties have argued Van's motion to dismiss. See generally Defendant's Response in Opposition to Third-Party Defendants' Motion to Dismiss Pursuant to Rule 12(b)(1) and Rule 12(b)(6) and Brief in Support of Defendant's Opposition to Third-Party Defendants' Motion ("Response"); Van Enterprises, Inc. Employee Benefit Trust's and Van Enterprises, Inc.'s Reply to Epoch Group L.C.'s Response to Motion to Dismiss Pursuant to Rule 12(b)(1) and 12(b)(6) ("Reply"); Defendant's Surrreply to Third-Party Defendants' Reply to Defendant's Response in Opposition to Third-Party Defendants' Motion to Dismiss Pursuant to Rule 12(b)(1) and 12(b)(6) and Supporting Brief.

II. ANALYSIS

The third-party defendants assert two grounds for dismissal: (1) the court lacks subject matter jurisdiction over this case because the third-party plaintiff does not have standing; and (2) the third-party plaintiff has failed to state a claim upon which relief can be granted. Motion to Dismiss at 2-3.

In general, a third-party defendant may raise by motion any of the defenses enumerated in Rule 12(b), and the principles that govern the disposition of Rule 12(b) motions in other contexts apply under FED. RULE CIV. P. 14 as well. 6 C. WRIGHT A. MILLER, FEDERAL PRACTICE PROCEDURE ("WRIGHT MILLER") § 1455 (2d ed. 1990) at 431-32.

A. Motion for Dismissal under Rule 12(b)(1) 1. Subject Matter Jurisdiction — Legal Standard

Federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Insurance Company of America, 511 U.S. 375, 377 (1994); Owen Equipment and Erection Company v. Kroger, 437 U.S. 365, 374 (1978). A federal court may exercise jurisdiction over cases only as expressly provided by the Constitution and laws of the United States. See U.S. CONST. art. III §§ 1-2; see also Kokkonen, 511 U.S. at 377. Federal law gives the federal district courts original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A party seeking relief in a federal district court bears the burden of establishing the subject matter jurisdiction of that court. United States v. Hays, 515 U.S. 737, 743 (1995); McNutt v. General Motors Acceptance Corporation of Indiana, Inc., 298 U.S. 178, 189 (1936); Langley v. Jackson State University, 14 F.3d 1070, 1073 (5th Cir.), cert. denied, 513 U.S. 811 (1994).

Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes the dismissal of a case for lack of jurisdiction over the subject matter. See FED. R. CIV. P. 12(b)(1). A motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction must be considered by the court before any other challenge because "the court must find jurisdiction before determining the validity of a claim." Moran v. Kingdom of Saudia Arabia, 27 F.3d 169, 172 (5th Cir. 1994) (internal citation omitted); see also Ruhrgras AG v. Marathon Oil Company, 526 U.S. 574, 577 (1999) ("The requirement that jurisdiction be established as a threshold matter . . . is inflexible and without exception") (citation and internal quotation marks omitted).

On a Rule 12(b)(1) motion, which "concerns the court's `very power to hear the case . . .[,] the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'" MDPhysicians Associates, Inc. v. State Board of Insurance, 957 F.2d 178, 181 (5th Cir.) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897 (1981)), cert. denied, 506 U.S. 861 (1992). In ruling on a motion to dismiss under Rule 12(b)(1), the court may rely on: "1) the complaint alone; 2) the complaint supplemented by undisputed facts; or 3) the complaint supplemented by undisputed facts and the court's resolution of disputed facts." MCG, Inc. v. Great Western Energy Corporation, 896 F.2d 170, 176 (5th Cir. 1990) (citing Williamson, 645 F.2d at 413). When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam). This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id.

2. Epoch's Standing to Bring Third-Party Claims

The policy underlying Rule 14 is to promote judicial economy by eliminating circuity of action. See, e.g., Powell, Inc. v. Abney, 83 F.R.D. 482, 485 (S.D. Tex. 1979); Crude Crew v. McGinnis Associates, Inc., 572 F. Supp. 103, 109 (E.D. Wis. 1983) ("The general purpose of Rule 14 is to avoid circuity of actions and to expedite the resolution of secondary actions arising out of or in consequence of the action originally instituted."). Rule 14 thus permits a defendant to bring into a civil suit any person "not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff." FED. R. CIV. P. 14(a). Accordingly, Rule 12(b)(1) challenges to a court's subject matter jurisdiction over third-party claims will generally be unsuccessful since such proceedings have been considered ancillary to the main action and therefore do not require independent subject matter jurisdiction. 6 WRIGHT MILLER § 1455 at 434.

Section 1367(a) provides that

in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.

The mere fact that a third-party claim arises from the same general facts as the original dispute is not sufficient, however; it will be dismissed if it is an entirely independent claim. United States v. Joe Grasso and Son, Inc., 380 F.2d 749, 751 (5th Cir. 1967). In other words, third-party practice is proper under Rule 14 only if the third-party defendant is or may be liable to the defendant for all or part of the plaintiff's recovery, or the defendant attempts to pass on to the third party all or part of the liability asserted against the defendant. Id. (citing 1A BARRON HOLTZOFF, FEDERAL PRACTICE AND PROCEDURE § 426 at 664-69 (1960 ed.); 3 Moore's Federal Practice ¶ 14.07 at 512 (2d ed. 1966)).

Here, there is no question that this court has original jurisdiction over the dispute between Epoch and Baylor. Epoch has been "haled into court against [its] will," Owen Equipment and Erection Company, 437 U.S. at 376, and seeks to assert claims, pursuant to Rule 14, which form part of the same case or controversy as the original action. The instant case represents a traditional use of third-party practice: derivative liability. The Equitable Life Insurance Society of the United States v. Lafferty, No. 3:02-CV-2453-D, 2003 WL 22946473, at *2 (N.D. Tex. Feb. 11, 2003) ("Because the liability of the third-party defendant to the defendant on the impleader claim is derivative of the defendant's underlying liability to the plaintiff in the underlying case, the impleader claim by definition is concerned with the same transaction or occurrence, or common nucleus of operative fact, as the underlying suit."). Epoch seeks to shield itself from paying Baylor's claims by virtue of an Administration Agreement. Under this Administration Agreement, Van retained Epoch to serve as Claims Supervisor, whereby Epoch processed claims for benefits and Van provided funding to pay for such claims. Response at 2. According to the response, Epoch was responsible for paying Baylor only if the services Baylor provided fell within coverage of the Plan. Id. at 3. Van and the Plan were then required to pay for claims processed by Epoch if the claims were covered by the Plan. Id. Upon resolution of the original claim, Van may be liable to Epoch for all or part of Baylor's claim against Epoch. Van's derivative liability to Epoch thus falls within the traditional use of third-party practice, precluding dismissal under Rule 12(b)(1).

With regard to Van's argument that Epoch lacks standing in this third-party action because it did not allege an injury, see Motion to Dismiss at 5 and Reply ¶ 10, third-party practice under Rule 14 does not require imminent injury. Third-party actions are proper even though the third-party defendant's liability is contingent. Travelers Insurance Company v. Busy Electric Company, 294 F.2d 139, 145 (5th Cir. 1961). In fact, Rule 14's "is or may be liable" language makes it clear that third-party practice is proper even though a third-party defendant's liability is not automatically established upon resolution of the third-party plaintiff's liability to the original plaintiff. 6 WRIGHT MILLER § 1446 at 373 (citing Powell, 83 F.R.D. at 486; Travelers Insurance Company, 294 F.2d at 145). As already stated, Van "may be liable" to Epoch upon resolution of Baylor's original claim against Epoch, so Epoch does not lack standing for failure to allege an injury.

The court concludes that jurisdiction over Epoch's claims against the third-party defendants exists on the basis of section 1367(a). Accordingly, Van's motion to dismiss Epoch's third-party complaint for lack of subject matter jurisdiction is denied.

B. Motion for Dismissal under Rule 12(b)(6) 1. Failure to State a Claim — Legal Standard

2. Van's Motion to Dismiss Under Rule 12(b)(6)

Third-party complaints are subject to the pleading requirements of Rule 8 and must set forth a short and plain statement of the claim showing that defendant is entitled to relief from the third party. 6 WRIGHT MILLER § 1453 at 417. Specifically, for complaints filed under Rule 14, the complaint must indicate that the third-party defendant is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the defendant. Id. at 417-18 (citing Joe Grasso and Son, Inc., 380 F.2d at 751-52).

Epoch's original third-party complaint addresses Van's liability to Epoch for all or part of Baylor's claims. Specifically, Epoch's complaint alleges:

9. If the claims for benefits submitted by Baylor to EPOCH for medical services that Baylor provided as identified under either Count V(A) or V(B) are both covered and payable under the Plan then the Third-Party Defendants would be responsible for paying those claims, not EPOCH.

10. If EPOCH is found to be liable to Baylor with regard to either Count V(A) or Count V(B), as it relates to participants or beneficiaries in the Plan, then Third-Party Defendants are liable to EPOCH for any sums assessed against EPOCH with respect to Count V(A) and for any sums assessed against EPOCH with respect to Count V(B) relating to participants or beneficiaries in the Plan.

Third-Party Complaint ¶¶ 9-10. However, even if Epoch addresses liability sufficiently in order to satisfy Rule 14 requirements, Epoch's third-party complaint may still be dismissed for failure to state a claim in compliance with Rule 8 requirements. 6 WRIGHT MILLER § 1453 at 417.

Since Epoch claims that its proposed amended complaint is merely clarifying its contractual claims against Van, see Response at 6, n. 3, the court looks to that document to elucidate those claims. Essentially, Epoch argues that Van ( i.e., both Van Enterprises, Inc. Employee Benefit Trust and Van Enterprises, Inc.) breached a written contract (the Administration Agreement), as well as an oral or implied-in-fact contract. See generally Defendant's First Amended Third-Party Complaint ("Amended Complaint") at 2-6, attached to Motion for Leave as Exhibit 1. However, since the court may not consider proposed amendments and documents not attached to the original complaint when deciding a motion under Rule 12(b)(6), Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir. 1996); Carpenters Local Union No. 1846, 690 F.2d at 499-500, the court returns to the original pleadings.

Under Texas law, a breach of contract claim requires: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff resulting from the defendant's breach. Kay v. North Texas Rod Custom, 109 S.W.3d 924, 927 (Tex.App.-Dallas 2003, no pet.). A contract in fact is implied where, despite the absence of any express declaration of intent by the parties, their acts are such as to indicate, according to common understanding and the ordinary courses of dealing between men, a mutual intent to contract. A/S Hydraulico Works v. Fort Worth Denver Railway Company, 483 F. Supp. 518, 521 (S.D. Tex. 1980) (citing 13 Tex. Jur. 2d Contracts § 5). Such a contract can be formed by conduct. See Live Oak Insurance Agency v. Shoemake, 115 S.W.3d 215, 219 (Tex.App. — Corpus Christi 2003, no pet.). Although Rule 8 pleading requirements are minimal, a complaint based on breach of contract must describe the alleged terms of the contract in a sufficiently specific manner to give the defendant notice of the nature of the claim. American Realty Trust, Inc. v. Travelers Casualty and Surety Company of America, 362 F. Supp. 2d 744, 753 (N.D. Tex. 2005). For instance, a claim on a written contract must either (1) quote relevant contractual language; (2) include a copy of the contract as an attachment; or (3) summarize the contract's purported legal effect. Id. (citing 5 WRIGHT MILLER § 1235 at 393; FED. R. CIV. P. Official Form 3). Presumably, there is no reason why a party alleging an oral contract should be excused from providing a corresponding level of detail. Id.

Epoch's causes of action depend upon the existence of a contract or behavior of the parties evincing such a contract. In its pleading, however, Epoch fails to identify or attach any contract or agreement between itself and Van. Although Epoch argues that its complaint sufficiently states a breach of contract claim through the allegation that "Van Enterprises retained EPOCH to serve as the Claims Supervisor for the Plan . . .", Response at 5 (citing Third-Party Complaint ¶ 5), Epoch fails to allege the number of writings involved, their dates, the specific subject matter or terms of the contracts, or any other information which would give Van notice of the basis upon which Epoch may be entitled to relief. In addition, Epoch has not alleged facts regarding the behavior of the parties that would give rise to a possible implied-in-fact contract claim. Therefore, Epoch's petition does not include sufficient operative facts to support its breach of contract claims. See Askanase v. Fatjo, 148 F.R.D. 570, 5737-4 (S.D. Tex. 1993) ("The cross-claims of the [cross-claimants] merely state in conclusory fashion that they are entitled to indemnity and/or contribution from [cross-defendants]. This falls far short of meeting the fair notice requirement of Rule 8."); cf. McCann v. Texas City Refining, Inc., 984 F.2d 667, 674 (5th Cir. 1993) (plaintiff failed to state claim for tortious interference with employment contract where complaint did not allege existence of employment contract). In short, Epoch has failed to aver a set of facts, which, if proven, would entitle it to relief on its breach of contract claim. See Conley, 355 U.S. at 45-46.

Accordingly, since Epoch has failed to give Van notice of the nature of its claim, Epoch's original third-party complaint is dismissed under Rule 12(b)(6).

C. Epoch's Motion for Leave to Amend Third-Party Complaint

If it appears that a more carefully drafted pleading might state a claim upon which relief could be granted, the court should give the claimant an opportunity to amend its claim rather than dismiss it. Friedlander v. Nims, 755 F.2d 810, 813 (11th Cir. 1985); Taylor v. Dallas County Hospital District, 976 F. Supp. 437, 438 (N.D. Tex. 1996). Epoch therefore argues, in support of its motion for leave, that granting leave to amend will "preserve its claims against Third-Party Defendants." Motion for Leave at 2. Epoch cites Rule 15(a) of the Federal Rules of Civil Procedure for the proposition that leave should be "freely given when justice so requires." Id. (citing FED. R. CIV. P. 15(a)). While this is a correct statement of the general rule regarding amendment of pleadings, "Rule 16(b) governs amendment of pleadings after a [district court's] scheduling order deadline has expired." SW Enterprises, L.L.C. v. South Trust Bank of Alabama, NA, 315 F.3d 533, 536 (5th Cir. 2003). "Rule 16(b) provides that a scheduling order `shall not be modified except upon a showing of good cause and by leave of the district judge.'" Id. at 535 (citing FED. R. CIV. P. 16(b)). "The good cause standard requires the `party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension.'" Id. (citing 6A WRIGHT MILLER § 1522.1 at 231). "Only upon the movant's demonstration of good cause to modify the scheduling order will the more liberal standard of Rule 15(a) apply to the district court's decision to grant or deny leave." Id. at 536. The Fifth Circuit established a test in SW Enterprises for determining whether an untimely motion to amend should be allowed, despite the existence of a scheduling order: "(1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice." Id. at 536 (internal quotations and brackets excluded). As discussed below, three of the four factors weigh against granting Epoch leave to amend its original third-party complaint.

1. Explanation for Failure to Timely Move for Leave to Amend

The first factor weighs against Epoch because it has offered no adequate basis for its failure to amend prior to the court-ordered deadline. Epoch bears the burden of showing that, despite its due diligence, the deadlines of the scheduling order could not be met. However, in its motion for leave, Epoch merely addresses the requirements under Rule 15(a). See generally Motion for Leave at 2-4. According to Epoch, the motion was untimely because Epoch had no reason to believe its third-party complaint needed amendment until Van filed its motion to dismiss after the scheduling order deadline expired. Id. at 3.

The motion to amend in this case was made more than three years after the events in question had occurred. It was made almost two years after the filing of Baylor's original complaint, and almost four weeks after the scheduling order's deadline for amended pleadings. See generally Docket Sheet; Scheduling Order. Despite such delay, the proposed amendment appears to rely on an agreement known to Epoch from the time of its original pleading, but not included therein. See "Administration Agreement," attached to Epoch's Motion for Leave as Exhibit B. Epoch therefore could have clarified its theory at that time or, at the very least, within the two months remaining before the scheduling order deadline. Consequently, Epoch's only explanation for the delay — notice that its third-party complaint may need amendment upon Van's motion to dismiss — "is tantamount to no explanation at all." S W Enterprises, 315 F.3d at 536. Nor does the bare assertion that "the proposed amendment will not cause undue prejudice to Third-Party Defendants," Motion for Leave at 3, offer an explanation for its failure to timely move for leave to amend. STMicroelectronics, Inc. v. Motorola, Inc., 307 F. Supp. 2d 845, 850-51 (E.D. Tex. 2004). The amended claims are not the result of new information discovered in investigations, recent breach of agreements between the parties, or disclosure of facts previously hidden by nonmovants; instead, Epoch seeks to amend its complaint to avoid dismissal under Rule 12(b)(6). Motion for Leave at 2. However, the facts on which Epoch's breach of contract claim is based were fully known to Epoch from the outset of the lawsuit and, indeed, were relied on by Epoch, though under a different theory, in its original third-party complaint. It was not until that theory was challenged by Van in its motion to dismiss that the amendment was tendered. Therefore, this factor weighs against Epoch.

2. Importance of the Amendment

While it is important for a court to allow amendment of claims so that cases may be heard on their merits, Epoch's failure to timely amend its claims undercuts the importance of the amended complaint. Accordingly, the court does not weigh this factor in favor of granting or denying leave. However, should this court grant Van's motion to dismiss without prejudice, Epoch is free to file an independent claim for relief against Van in this forum or another, particularly if new facts come to light or Epoch is able to recast its claim in compliance with Rule 8 standards. Therefore, all is not lost for Epoch.

3. Potential Prejudice in Allowing the Amendment

The third factor also weighs against Epoch. Van may suffer prejudice if a cause of action based on additional documents is added approximately four months prior to trial (January 2006) and within approximately two months of the close of discovery (October 31, 2005). See Scheduling Order ¶¶ 2, 6. While the court could extend the discovery period in order to cure this prejudice, such an extension would cause undue delay and possibly require the court to reset the current trial date and/or extend other pretrial deadlines.

4. Availability of a Continuance to Cure Such Prejudice

Epoch has not shown that it was diligent in its attempt to file for leave to amend its third-party complaint by the deadline established by the court's original scheduling order. Epoch has failed to show good cause, pursuant to FED. R. CIV. P. 16(b), to modify the scheduling order, and its motion for leave to amend is accordingly denied.

III. CONCLUSION

SO ORDERED.