Myers et al v. Sander et al.
MEMORANDUM AND ORDER re: 28 MOTION to Add Party Stewart Title Guaranty Company filed by Plaintiff Frances Myers, Plaintiff Ronald Myers. IT IS HEREBY ORDERED that plaintiffs' motion to add a party [#28] is denied. IT IS FURTHER ORDERED that, if it wishes to do so, defendant First Bank must file any motion to dismiss no later than January 15, 2014.( Response to Court due by 1/15/2014.) Signed by District Judge Catherine D. Perry on January 8, 2014. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
RONALD MYERS, individually and on )
behalf of a class of similarly situated
individuals, et al.,
LEDA J SANDER, et al.,
Case No. 4:13CV2192 CDP
MEMORANDUM AND ORDER
Plaintiffs Ronald and Frances Myers have sued various defendants for their
roles in the sale, attempted refinancing, and eventual foreclosure of the plaintiffs’
home. The plaintiffs now move to add another defendant, Stewart Title Guaranty
Company. According to the plaintiffs’ motion, Stewart Title issued a title
insurance policy on the plaintiffs’ home. A copy of this policy was recently
disclosed to the plaintiffs by Investors Title Company, already defendant in this
case. The plaintiffs believe they are entitled to collect under the policy and
submitted a claim to Stewart Title, which was denied. Now they seek to add
Stewart Title to this case. I find that the plaintiffs have failed to demonstrate the
basic elements for joinder under either Rule 19 or Rule 20, Fed. R. Civ. P. and will
therefore deny their motion to add a party.
There are also other motions pending in this case. As I explain below, those
motions will remain under submission until defendant First Bank has an
opportunity to file a motion associated with the memorandum it has already filed.
Stewart Title Is Not Necessary Under Rule 19
Rule 19 requires that, if feasible, absent persons must be joined in an action
if they are necessary to the complete adjudication of the claims at issue. Gwartz v.
Jefferson Memorial Hosp. Ass'n, 23 F.3d 1426, 1428 (8th Cir. 1994). If the court
determines that an outside party is necessary to the case and that the party's joinder
would not deprive the Court of its jurisdiction, it must “order that the person be
made a party.” Fed. R. Civ. P. 19(a)(2). If the person is not necessary, then the
case must go forward without him and there is no need to make a Rule 19(b)
inquiry. Gwartz, 23 F.3d at 1428. Under Rule 19(a)(1)(A), the only provision at
issue, a person is necessary if “in the person's absence, the court cannot accord
complete relief among existing parties.” Fed. R. Civ. P. 19(a)(1)(A).
Here, although the plaintiffs state that “Stewart Title may be jointly and
severally liable for Investors Title’s acts and/or omissions,” they do not explain
why Stewart Title is a necessary party or why they could not institute a separate
action against Stewart Title if they so choose. The plaintiffs’ current claims in this
case do not involve collecting the proceeds under their title insurance policy. I find
that complete relief could be accorded to those already party to the action. I will
therefore deny plaintiffs’ motion to join Stewart Title under Rule 19.
No Common Question of Law or Fact Under Rule 20
The plaintiffs move alternatively to join Stewart Title permissively under
Rule 20. Under Rule 20, a party may join an additional party as a defendant if
“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 “any questions of law or fact common to all
defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2)(A) and (B). The
Myers have failed to identify any question of law or fact common to all the
defendants, so I will deny their motion to join Stewart Title permissively. I will
also deny their request to file a Second Amended Complaint because they have not
attached a copy of the proposed complaint, nor have they described the substance
of their proposed amendment or explained how amendment would cure the defects
I have described above. See In re 2007 Novastar Fin. Inc., Sec. Litig., 579 F.3d
878, 884–85 (8th Cir. 2009).
First Bank Motion to Dismiss
When the court entered its show cause order on November 26, 2013, it
believed that both defendants Greg Fuesting and First Bank (who are represented
by the same counsel) had filed motions to dismiss. Further review shows that
although Fuesting has filed a motion to dismiss [#12] and a memorandum in
support [#13], First Bank has filed only a memorandum in support [#15] and in
fact has not actually filed a motion to dismiss. If First Bank wishes to do so, it
must file a motion to dismiss no later than January 15, 2014. It may incorporate
by reference the memorandum in support it has already filed. If it does not do so, I
will proceed with the other motions to dismiss and ignore the memorandum.
IT IS HEREBY ORDERED that plaintiffs’ motion to add a party [#28] is
IT IS FURTHER ORDERED that, if it wishes to do so, defendant First
Bank must file any motion to dismiss no later than January 15, 2014.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 8th day of January, 2014.
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