Hesser v. Home Depot U.S.A., Inc.
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that defendant Home Depot U.S.A., Inc.s Motion for Leave to File a Cross-Complaint is DENIED. [Doc. 53] IT IS FURTHER ORDERED that defendant Home Depot U.S.A., Inc.s Motion for Separate Trials is DENIED as moot. [Doc. 61]. Signed by District Judge Charles A. Shaw on 6/11/14. (JWJ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
HOME DEPOT U.S.A., INC., et al.,
No. 4:13-CV-227 CAS
MEMORANDUM AND ORDER
This matter is before the Court on defendant Home Depot U.S.A., Inc.’s (“Home Depot”)
motion for leave to file a crossclaim1 against defendant Cintas Corporation No. 2 (“Cintas”), and
motion for separate trials. Cintas opposes the motions and they are fully briefed. For the following
reasons, the Court will deny Home Depot’s motion for leave to file a crossclaim and deny as moot
its motion for separate trials.
This case was originally filed in state court. Plaintiff Roy Hesser’s original petition asserted
a negligence claim against defendant Home Depot. The petition alleged that Mr. Hesser was
shopping in a Home Depot store and was attempting to pick up an item and place it in his shopping
cart when a portable fire extinguisher dropped on his foot, causing severe injury to his right foot and
ankle. Home Depot removed the action to this Court on February 4, 2013 based on diversity of
citizenship jurisdiction. See 28 U.S.C. § 1332.
Home Depot refers to its proposed pleading as a “cross-complaint,” but under the Federal
Rules of Civil Procedure the proper term for a claim asserted against a coparty is a crossclaim. See
Rule 13(g), Fed. R. Civ. P.
On March 26, 2013, the Court issued a Case Management Order (“CMO”) which, among
other things, established a July 1, 2013 deadline for filings motions for leave to join additional
parties or to amend pleadings. (Doc. 16) On July 1, 2013, plaintiff filed a consent motion for leave
to file an amended complaint. Plaintiff’s First Amended Complaint added a new defendant to the
action, Cintas Corporate Services, Inc., and included new allegations that Home Depot had hired
Cintas to “perform certain services including but not limited to inspection and certification of fire
extinguishers in Home Depot stores,” and that both defendants were negligent in various respects.
Am. Compl. at 2.
Cintas filed its Answer on September 4, 2013.2 On January 13, 2014, plaintiff filed an
unopposed motion to extend by thirty days the CMO’s deadlines for disclosure of his expert
witnesses, to complete discovery, and to file Daubert and dispositive motions. The motion was
granted and the CMO was amended on January 14, 2014. On February 20, 2014, plaintiff filed a
second unopposed motion to further amend the CMO’s deadlines for disclosure of expert witnesses
and to complete discovery. The second motion was granted and the CMO was amended on February
21, 2014. The case was referred to alternative dispute resolution on April 1, 2014 with a completion
deadline of June 2, 2014.3
Meanwhile, on May 5, 2014, Home Depot filed its motion for leave to file a crossclaim
against Cintas. The motion for leave states in part that “[a]fter several months of exhaustive efforts
between Home Depot and Cintas to amicably reach an agreement on Home Depot’s tender request,
Cintas states in its Answer that its correct corporate name is “Cintas Corporation No. 2,”
and that it has been improperly named in this action as Cintas Corporate Services, Inc. Plaintiff has
not sought leave to further amend his Complaint in response to Cintas’ assertion.
To date, the neutral’s report concerning the outcome of alternative dispute resolution has
not been filed, but it is due by June 16, 2014.
negotiations have stalled,” and that counsel for these parties have spoken about the likelihood a
crossclaim would be filed if Cintas continued to deny Home Depot’s tender request. Mot. for Leave
at 2. Home Depot’s proposed crossclaim contains four counts, for breach of contract, breach of
implied-in-fact contract, promissory estoppel and negligent misrepresentation. The motion for leave
asserts that plaintiff does not oppose it, provided the trial setting of September 29, 2014 is not
Home Depot states that its failure to comply with the CMO’s deadline for seeking leave to
amend pleadings was not due to bad faith or dilatory motive on its part, and notes that it could not
have timely filed its proposed crossclaim because plaintiff did not add Cintas to the lawsuit until the
last day for filing motions to join additional parties. Home Depot asserts that leave to file should
be granted so that all related disputes arising out of the occurrence may be resolved in one setting,
and contends that the filing of its crossclaim would not require modification of the trial date.
Defendant Cintas opposes the motion for leave on the basis that the time to amend pleadings
under the CMO has long passed. Cintas asserts that the filing of a crossclaim “will potentially delay
the trial setting of this case,” and that allowing the crossclaim “may confuse the jury” as plaintiff’s
case is for personal injury while Home Depot’s proposed crossclaim is based on breach of contract.
Home Depot replies that it could not have asserted its crossclaim against Cintas within the
time permitted by the CMO, because Cintas was not joined as a party by plaintiff until the final day
for filing motions to join additional parties or amend pleadings. Home Depot notes that Cintas does
not claim surprise and does not deny that counsel have discussed the likelihood a crossclaim would
be filed if “Cintas refused to honor its obligation to defend and indemnify Home Depot.” Reply at
2. Home Depot asserts that adequate time remains until the close of discovery for it and Cintas to
conduct any discovery and “defend the legal issue of whether a duty to defend and indemnify
exists.” Id. Home Depot also states that Cintas has not shown that undue delay exists, that Cintas
will suffer undue prejudice, that Home Depot has acted in bad faith or with dilatory motive, or that
the proposed crossclaim is futile.
Following Cintas’s opposition, Home Depot also filed a motion for separate trials under Rule
42(b), Fed. R. Civ. P., arguing that any jury confusion engendered by its crossclaims can be obviated
by trying the crossclaims to a separate jury. Cintas opposes the motion for separate trials on the
basis that Home Depot should not be granted leave to file a crossclaim against it in this action.
A leading federal practice treatise discusses Rule 13(g) and crossclaims generally as follows:
Rule 13(g) permits the assertion of crossclaims, which may consist of any
claim made by one party against a coparty arising out of the transaction or
occurrence that is the subject matter either of the original action or of a counterclaim
therein, or that relates to any property that is the subject matter of the original action.
The provision is a reflection of the federal equity practice. As is true in the
counterclaim context, the general policy behind allowing crossclaims is to avoid
multiple suits and to encourage the determination of the entire controversy among
the parties before the court with a minimum of procedural steps. In keeping with this
policy the courts generally have construed subdivision (g) liberally in order to settle
as many related claims as possible in a single action.
6 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1431. Rule 13(g) does
not contain a time limitation for asserting a crossclaim. As a result,
The decision whether to allow a crossclaim that meets the test of subdivision (g) is
a matter of judicial discretion. No precise standards have been formulated.
Generally, most courts balance the interests of judicial economy and the general
policy of avoiding multiple suits relating to the same events against the possibilities
of prejudice or surprise to the other parties and decide the question of timeliness
As stated above, the CMO’s deadline for amending pleadings was July 1, 2013. Where a
party seeks leave to amend its pleadings after the deadline in the case management order has passed,
as here, the good-cause standard of Fed. R. Civ. P. 16(b) applies, not the standard of Rule 15(a).
Under Rule 16(b), the party must show good cause in order to be granted leave to amend. Sherman
v.Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008); Popoalii v. Correctional Med. Servs.,
512 F.3d 488, 497 (8th Cir. 2008). “The primary measure of whether good cause exists is the
moving party’s diligence in trying to meet the order’s requirements.” Rahn v. Hawkins, 464 F.3d
813, 822 (8th Cir. 2006). “While the prejudice to the nonmovant resulting from modification of the
scheduling order may also be a relevant factor, generally, we will not consider prejudice if the
movant has not been diligent in meeting the scheduling order’s deadlines.” Sherman, 532 F.3d at
Here, Home Depot’s primary argument in support of its late-tendered crossclaim is that it
could not have asserted the crossclaim until after the CMO deadline had passed, because Cintas was
not joined as a party until the last possible date. Home Depot alleges, however, that “[b]eginning
on August 31, 2012, counsel for Home Depot tendered its defense in the lawsuit to [Cintas] and its
insurers[.]” Proposed Crossclaim at 2, ¶ 17. Home Depot also states that there were “several
months of exhaustive efforts between [it] and Cintas to amicably reach an agreement on Home
Depot’s tender request, [but] negotiations have stalled.” Mot. for Leave at 2.
The Court finds that Home Depot has not established good cause for leave to amend under
Rule 16(b), because it has not shown it acted diligently to attempt to meet the CMO’s deadlines and
to assert its crossclaims. Home Depot tendered its defense to Cintas in August 2012, almost a year
before Cintas was named a defendant in this action, but did not seek leave to assert a crossclaim until
May 2014, twenty-one months after the tender of defense, ten months after the CMO’s deadline for
amending pleadings, and ten months after the addition of Cintas as a defendant. Home Depot could
have asserted a third-party claim against Cintas under Rule 14, Fed. R. Civ. P., before Cintas was
joined as a defendant by plaintiff, but chose not to do so. Further, although the CMO’s deadlines
were amended twice after plaintiff joined Cintas as a defendant, Home Depot did not seek to amend
the CMO to permit it to assert a crossclaim, even though it knew Cintas had not agreed to accept its
tender of defense. Instead, Home Depot waited almost two years after tendering its defense to
Cintas, shortly before the revised dispositive motion deadline and discovery deadline, and four
months prior to trial, to seek leave of Court to file its crossclaim.
Based on the record before it, the Court finds that Home Depot’s actions demonstrate a lack
of diligence with respect to the assertion of its contractual and equitable claims against Cintas, and
may indicate Home Depot took a gamble and chose not to assert its crossclaim against Cintas for
tactical reasons, perhaps believing the parties’ “amicable” negotiations would ultimately end in a
favorable resolution and not wishing to jeopardize that possibility by formally asserting its
crossclaims. Whatever its reasons for delaying the assertion of its crossclaims, Home Depot has
failed to show good cause as required by Rule 16(b). The Court will deny the motion for leave to
assert a crossclaim against Cintas in this action.
Because Home Depot has not shown good cause, the Court need not examine whether
prejudice might result to plaintiff or Cintas. It notes, however, that the possibility of delay or
prejudice to plaintiff or Cintas is significant here, given the impending trial date and the likelihood
that Cintas would respond to the multiple crossclaims with a dispositive motion and discovery
Finally, Home Depot’s motion for separate trials should be denied as moot.
IT IS HEREBY ORDERED that defendant Home Depot U.S.A., Inc.’s Motion for Leave
to File a Cross-Complaint is DENIED. [Doc. 53]
IT IS FURTHER ORDERED that defendant Home Depot U.S.A., Inc.’s Motion for
Separate Trials is DENIED as moot. [Doc. 61]
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 11th day of June, 2014.
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