Bell et al v. Mine Safety Appliances Company et al
ORDER granting 130 Motion to Dismiss Mine Safety Appliances Company (dismissed with prejudice); granting 131 Motion to Strike Cross-Action of Rumelin Manufacturing Company, Inc. against Mine Safety Appliances. Signed by Honorable Susan O. Hickey on January 25, 2016. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
VICKIE BELL; PHILLIP B. BELL, JR.
and JONATHAN BELL
Case No. 1:13-cv-01075
MINE SAFETY APPLIANCES;
COMPANY, INC.; PULMOSAN
SAFETY EQUIPMENT CORPORATION;
CLEMCO INDUSTRIES, INC.; and
JOHN DOES 1-7
Before the Court is Plaintiffs’ Motion to Dismiss Defendant Mine Safety Appliances, With
Prejudice. (ECF No. 130). No party has responded and the time for doing so has expired. Also
before the Court is Plaintiff’s Motion to Strike Cross-Action of Ruemelin Manufacturing Company
Against Mine Safety Appliances. (ECF No. 131). Ruemelin has responded to this Motion. (ECF
No. 140). The Court finds these matters ripe for its consideration.
Plaintiffs no longer wish to prosecute this case against Defendant Mine Safety Appliances
(“MSA”). They ask that MSA be dismissed with prejudice and each party be responsible for its own
costs. Pursuant to Federal Rule of Civil Procedure 41(a)(2), an action may be dismissed at a
plaintiff’s request by a court order, on terms that the court considers proper. The Court finds that
Plaintiffs’ claims against MSA should be dismissed with prejudice.
Because Ruemelin has attempted to file a cross-claim against MSA, the Court must
determine whether Defendant MSA remains in this action. The Bells filed the original Complaint
on October 17, 2013. (ECF No. 1). Ruemelin and MSA both filed Answers to the Complaint. (ECF
Nos. 7 & 33). MSA asserted a cross-claim against Ruemelin in its Answer. (ECF No. 7). The Bells
then amended their Complaint on August 6, 2015. (ECF No. 58). MSA filed an Answer to the
Amended Complaint, reasserting a cross-claim against Ruemelin. (ECF No. 61). Ruemelin also
filed an answer to the Amended Complaint. (ECF No. 60). Later, Ruemelin filed an Answer to
MSA’s cross-claim and asserted, for the first time, a cross-claim against MSA. (ECF No. 63).
Plaintiff asserts that Ruemelin’s claims against MSA should be stricken, resulting in MSA’s
dismissal from this lawsuit entirely. Plaintiffs assert that the deadline to amend pleadings or join
parties had expired on August 9, 2015, and therefore the cross-claim filed on August 26, 2015 was
untimely. Ruemelin responds that Plaintiffs’ Motion to Strike the Cross-Claim is untimely because
it was filed after the dispositive motion deadline expired. Ruemelin also asserts that its cross-claim
was not an amended pleading, but was part of its answer to MSA’s cross-claim against Ruemelin,
and that Plaintiffs do not have standing to bring the motion.
Where an Amended Complaint changes the theory or scope of the case, the other existing
parties to the action should be permitted amendment as a matter of course. Tralon Corp. v.
Cedarapids, Inc., 966 F. Supp. 812 (N.D. Iowa 1997), aff’d, 205 F.3d 1347 (8th Cir. 2000). “The
obvious corollary is that if an amended complaint does not change the theory or scope of the case,
a [party] must seek leave of court pursuant to Rule 15(a) before it can amend its answer to assert a
The Court finds that the same rule applies to the cross-claims in this action. Ruemelin has
not demonstrated how Plaintiffs’ Amended Complaint or MSA’s Answer to the Amended Complaint
changed the theory or scope of the case in such a way that Ruemelin should have been given the
chance to plead anew and submit a cross-claim for the first time. Ruemelin was required to request
leave of the Court under Rule 15(a) and comply with Local Rule 5.5(e) to properly assert a crossclaim against MSA. It did not.
In the Final Scheduling Order (ECF No. 29), the Court imposed a deadline of “60 days before
the close of discovery” for motions to amend pleadings. The deadline to complete discovery in this
case was October 22, 2015. (ECF No. 75). The deadline to request leave to amend pleadings was
August 23, 2015. Ruemelin never requested leave to amend its pleadings to assert a cross-claim
against MSA. Therefore, the cross-claim filed by Ruemelin on August 26, 2015, (ECF No. 63), was
outside of the deadline, and it is not properly before the Court. Ruemelin has made no attempt to
demonstrate good cause for failing to request leave to amend or failing to comply with the Court’s
Accordingly, Plaintiff’s Motion to Dismiss Mine Safety Appliances (ECF No. 130) is hereby
GRANTED. Plaintiff’s Motion to Strike Cross-Action of Rumelin Manufacturing Company, Inc.
Against Mine Safety Appliances (ECF No. 131) is also GRANTED. Plaintiff’s claims against MSA
should be and hereby are DISMISSED WITH PREJUDICE. MSA is dismissed from this lawsuit
IT IS SO ORDERED, this 25th day of January, 2016.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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