Heck v. Sutcliffe

Filing 40

MEMORANDUM AND ORDER denying 24 Motion to Join Third-Party Defendant. Signed by Magistrate Judge Kenneth G. Gale on 3/17/14. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BARBARA HECK,

vs.
TERRY SUTCLIFFE,

)
)
Plaintiff,
)
)
)
)
)
)
Defendant. )
)

Case No. 13-2264-CM/KGG

ORDER DENYING MOTION TO JOIN
THIRD-PARTY DEFENDANT PURSUANT TO FED.R.CIV.P. 20
Before the Court is Defendant’s “Motion to Join Hawthorn Homes LLC as a
Third-Party Defendant Pursuant to F.R.C.P. 20.” (Doc. 24.) For the reasons set
forth below, the Court DENIES this motion.
This case results from a settlement of a divorce action that Plaintiff filed in
the District Court of Douglas County, Kansas. (See Doc. 1, at 2-3.) Plaintiff
alleges that in the settlement agreement, Defendant agreed that she “‘will receive
[Defendant’s] 1/4 complete interest in’ the partnership known as Hawthorn Town
Homes, LLC (‘Hawthorn’).” (Id., at 3.) Plaintiff brings claims for breach of
contract and for fraud based on her allegation that she subsequently learned that
Defendant did not have the authority to give her his interest in Hawthorn. (Id., at

4-5.)
Defendant now moves, pursuant to Fed.R.Civ.P. 20, to join Hawthorn as a
third-party Defendant. Defendant contends that should Plaintiff prevail on her
claims against him, Hawthorn, “jointly or in the alternative, is responsible for any
damages that may be awarded to Plaintiff by a jury.” (Doc. 25, at 3.) Plaintiff
responds that Defendant’s motion is untimely,1 fails to comply with Fed.R.Civ.P.
11(b)(2) and D. Kan. Rule 7.6, and that the requested joinder is improper.
(See Doc. 26.)
Plaintiff is correct that relief under Rule 20 is typically reserved for
plaintiffs. (Doc. 26, at 5; see also Perez v. West Plains Transport, Inc., No. 131145-KHV-JPO, 2014 WL 61473 (D. Kan. Jan. 8, 2014).) As Plaintiff points out,
however, an exception exists for a defendant asserting a counterclaim, as in the
present case. Nal II, Ltd. v. Tonkin, 705 F.Supp.522, 529 (D.Kan. 1989).
Rule 20(a)(2) states that parties may be joined as defendants where both:
(A)

any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or
series of transactions or occurrences; and

1

The Court is satisfied with Defendant’s explanation (technical difficulties filing
with the Court’s electronic filing system) as to why the present motion was filed a day
after the deadline contained in the Court’s Scheduling Order. Further, there is no
evidence that this de minimus delay has caused any prejudice to Plaintiff.
2

(B)

any question of law or fact common to all
defendants will arise in the action.

National Fire Ins. Co. of Hartford v. National Cable Television Coop. Inc., No.
10-2532-CM, 2011 WL 1430331, *2 (D. Kan. April 14, 2011) (citing Fed.R.Civ.P.
20(a)(2)).
Plaintiff initially argues that Defendant fails to assert a right to relief against
Hawthorn. Although Defendant states that “interpretation of [Hawthorn’s]
Operating Agreement may give rise to claims the Defendant may have against
Hawthorn Homes . . . .” (Doc. 25, at 4.) This is not, however, the same as actually
asserting a specific right to relief against Hawthorn. Busby v. Capital One, N.A.,
759 F.Supp.2d 81, at 88 (D.D.C. 2011). Further, Defendant failed to include a
proposed amended pleading naming Hawthorn as a party and stating Defendant’s
claims against Hawthorn. As such, the Court will not consider Defendant’s motion
to be a motion for leave to amend his counterclaim pleading. See D. Kan. Rule
15.1. It is not the province of the Court to read between the lines of Defendant’s
motion and attempt to presume what his claims against Hawthorn might be.
Additionally, because Defendant has failed to assert specific claims against
Hawthorn, the Court cannot determine with certainty that any such right to relief
Defendant may have against Hawthorn arises out of the same transaction,
occurrence, or series of transactions or occurrences as the relief Defendant seeks
3

against Plaintiff. See Fed.R.Civ.P. 20(a)(2)(A). Considering Defendant’s
counterclaims against Plaintiff relate to the parties’ divorce agreement – and
Hawthorn was not a party to the agreement – the Court is unable to find, in the
absence of adequate explanation and legal authority by Defendant, that the
transaction or occurrence requirement has been met. The same is true for the
requirement that a “question of law or fact common to all defendants will arise in
the action.” Fed.R.Civ.P. 20(a)(2)(B).2 Defendant’s Motion to Join (Doc. 24) is,
therefore, DENIED.

IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 17th day of March, 2014.

S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

2

Plaintiff also argues that joinder of Hawthorn would destroy the Court’s
diversity jurisdiction over this matter. (Doc. 26, at 9.) Defendant is admittedly a citizen
of Kansas. In the present motion, he seeks leave to bring its heretofore unspecified
claims against Hawthorn, who he states is a Kansas entity, with a registered office in
Lawrence, Kansas. (Doc. 25, at 1.) Defendant makes no attempt to address this issue in
his reply brief. Because the Court is denying Defendant’s motion on other grounds, there
is no need to address that issue herein.
4