Federal Trade Commission v. Ross-Clayton Funeral Home, Inc. et al
Filing
56
OPINION AND ORDER as follows: (1) The plaintiffs motion to strike third-partycounterclaims (doc. no. 41 ) is granted as further set out in the opinion and order. (2) All claims against purported third-party defendants Tonia C. Jackson, Cindy A. Lieb es, Michael Liggins, Edith Ramirez, and Jessica L. Rich are stricken from the first amended counterclaim (doc. no. 31 ), and said defendants are terminated as partiesto this action. (3) The defendants request (doc. no. 44 ) that the court direct th e clerk to open a new case and file the first amended counterclaim as a complaint under the new case action number is denied as further set out in the opinion and order. Signed by Honorable Judge Myron H. Thompson on 10/16/2015. (Attachments: # 1 Civil Appeals Checklist)(dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
FEDERAL TRADE COMMISSION,
)
)
Plaintiff,
)
)
v.
)
)
ROSS-CLAYTON FUNERAL HOME, )
INC., an Alabama
)
corporation, et al.,
)
)
Defendants.
)
CIVIL ACTION NO.
2:13cv851-MHT
(WO)
OPINION AND ORDER
This cause is before the court on the Federal Trade
Commission’s
motion
to
strike
third-party
counterclaims.
For the reasons below, the motion will
be granted.
Under
“[a]
Federal
defending
Rule
party
of
may,
Civil
as
Procedure
third-party
14(a)(1),
plaintiff,
serve a summons and complaint on a nonparty who is or
may
be
against
liable
it.
to
But
it
the
for
all
or
third-party
part
of
plaintiff
the
claim
must,
by
motion, obtain the court's leave if it files the third-
party complaint more than 14 days after serving its
original answer.”
The
defendants
filed
their
oddly
named
“first
amended counterclaim”1 (doc. no. 31), which the court
construes
as
a
third-party
parties, on June 23, 2015.
complaint
against
non-
This was well over 14 days
after service of their original answer on May 12, 2015.
The defendants concede that they were required to but
failed
to
seek
leave
to
court
before
filing
their
third-party complaint.
Moreover, the July 31, 2015 deadline in the Uniform
Scheduling Order (doc. no. 27) for filing motions to
amend
the
pleadings
has
passed
without
defendants
moving to amend the pleadings to add a counterclaim.2
Defendants concede that the counterclaim was untimely.
1. No counterclaim had been filed prior to this
document.
2. In their response, the defendants point out that
they had an agreement with the plaintiff to extend the
2
Defendants argue that the court has jurisdiction
over the third-party defendants because they filed the
motion
to
jurisdiction
strike,
of
the
and
thereby
court.
submitted
However,
the
to
motion
the
to
strike was filed by the “United States”, not by the
individual
third-party
defendants.
See
Motion
to
Strike (doc. no. 41) at 1; id. at 3 (“This motion does
not
constitute
a
personal
appearance
by
any
of
the
make
an
individual-capacity defendants.”).
In
their
response,
the
defendants
alternative request that the court direct the clerk to
docket their counterclaim as a new complaint, under a
new case number.
As the defendants have not shown any
reason justifying this request, and have not properly
presented it to the court, the court will deny it.
* * *
deadline for discovery, but do not claim that they had
an agreement to extend the deadline for moving to add
parties or claims.
The agreement to extend discovery
is irrelevant.
3
Accordingly, it is ORDERED as follows:
(1) The plaintiff’s motion to strike third-party
counterclaims (doc. no. 41) is granted.
(2)
All
claims
against
purported
third-party
defendants Tonia C. Jackson, Cindy A. Liebes, Michael
Liggins,
Edith
Ramirez,
and
Jessica
L.
Rich
are
stricken from the “first amended counterclaim” (doc.
no. 31), and said defendants are terminated as parties
to this action.
(3) The defendants’ request (doc. no. 44) that the
court direct the clerk to open a new case and file the
first amended counterclaim as a complaint under the new
case action number is denied.
DONE, this the 16th day of October, 2015.
_ /s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?