BOKF, N.A. v. BCP Land Company et al
Filing
189
ORDER granting 155 Motion to Dismiss for Failure to State a Claim; granting 157 Motion to Dismiss for Failure to State a Claim; granting 158 Motion to Dismiss for Failure to State a Claim; finding as moot 165 motion to sever. First Amende d Counterclaim Counts IV-VII are hereby dismissed and the following persons are terminated from the case: Varzaly, Dotson, Crews & Associates, Inc., and Aspen Wealth Management, Inc. Signed on 5/15/2015 by District Judge M. Douglas Harpool. (Hance, Breanna)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
BOKF, N.A.,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
BCP LAND COMPANY, LLC, et al.,
Defendants.
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Case No. 6:14-cv-03025-MDH
BCP LAND COMPANY, LLC,
)
JACK REDWINE, TIM JURY, PHIL LOPEZ, )
JURY INDUSTRIES, ZEPOL INDUSTRIES, )
)
Defendants/Counterclaim Plaintiffs,
)
)
v.
)
)
BOKF, N.A.,
)
Plaintiff/Counterclaim Defendant,
)
)
S. BRENT VARZALY, KENNETH DOTSON, )
CREWS & ASSOCIATES, INC., and
)
ASPEN WEALTH MANAGEMENT, INC.,
)
)
Counterclaim Defendants.
)
ORDER
Before the Court are motions to dismiss filed by all “Counterclaim Defendants” in this
matter. (Docs. 155, 157, 158). Counterclaim Defendants move to dismiss Counts IV, V, VI, and
VII of Plaintiffs’ First Amended Counterclaim for lack of jurisdiction and failure to state a claim.
Upon careful consideration of the issues presented and legal arguments provided by the parties,
the Court hereby GRANTS the motions and DISMISSES Counts IV, V, VI, and VII of the First
Amended Counterclaim.
BACKGROUND
The facts underlying this lawsuit are more fully described in the Court’s previous order
(Doc. 104). At the core of this suit is a dispute concerning whether the release (or non-release)
of Development Period Reserve Funds (DPRF) to Redwine following sales of certain parcels of
Special Assessment Property was appropriate under the terms of the Trust Indenture. Also at
issue in the case are Defendants’ actions surrounding the sales of those parcels of property;
specifically, whether Defendants intentionally misrepresented certain facts and/or engaged in a
scheme to defraud Plaintiff in order to get DPRF funds released.
Plaintiff BOKF, N.A. filed suit in federal court on January 17, 2014 on the basis of
diversity jurisdiction. Plaintiff (OK) sued Defendants BCP Land Company, LLC (KS), Jack
Redwine (KS), and numerous “Buyer Defendants” (KS) seeking a declaratory judgment
concerning the parties’ respective rights under the Trust Indenture.1 Plaintiff also brought claims
for unjust enrichment against Redwine and negligent misrepresentation against BCP Land
Company, LLC. On December 23, 2014, the Court granted Plaintiff leave to file an amended
complaint in order to add additional claims and parties. Plaintiff’s Amended Complaint added
the two other LLC members of BCP Land Company, LLC (hereinafter referred to, along with
BCP Land Company, LLC, as “BCP Land Company Defendants”), Jack Kynion II (KS), and two
additional “Buyer Defendants” (KS, MO).2 Plaintiff added a RICO claim against all Defendants
and changed its negligent misrepresentation claim to a fraudulent misrepresentation claim.
1
BOKF is the “Trustee” under the Trust Indenture. BCP Land Company, LLC is the “Developer” under the Trust
Indenture. Jack Redwine is a member of BCP Land Company, LLC and is the assignee of the DPRF funds. The
remaining entities are grouped together as “Buyer Defendants” who allegedly purchased land from BCP Land
Company, LLC and failed to pay special assessments - Grace Properties Branson, LLC (KS), SJ Legacy, LLC (KS),
Parkway Enterprises, LLC (KS), JH Branson, LLC (KS), and Jack Redwine (KS).
2
Defendant Timothy Jury (KS) is effectively the sole member of Defendant Jury Industries, LLC and Defendant
Philip Lopez (KS) is a member, along with his wife, of Defendant Zepol Industries, LLC. These LLC’s are the
other two members of BCP Land Company, LLC along with Jack Redwine. Jack Kynion II is a financial advisor to
2
BCP Land Company Defendants (KS)
Redwine (KS)
Kynion II (KS)
Buyer Defendants (MO, KS)
BOKF (OK)
On January 26, 2015, the BCP Land Company Defendants (all KS) and Jack Redwine
(KS) filed an answer and counterclaim. The Amended Counterclaim asserts claims against
Plaintiff BOKF, N.A. (OK) and four newly added “Counterclaim Defendants”3 – S. Brent
Varzaly (KS), Kenneth Dotson (MO), Crews and Associates, Inc. (AR), and Aspen Wealth
Management, Inc. (KS).4 Counts I through III are brought by Redwine and assert claims against
BOKF for declaratory judgment, breach of contract, and money had and received. Counts IV
and V are brought by all Counterclaim Plaintiffs and allege abuse of process (against BOKF,
Varzaly, and Dotson) and conspiracy to abuse process (against all Counterclaim Defendants).
Counts VI and VII are brought by Redwine and allege tortious interference with a contract
(against Crews and Aspen) and conspiracy to tortiously interfere with a contract (against all
Counterclaim Defendants).
BOKF (OK)
+ Varzaly (KS)
+ Dotson (MO)
+ Crews (AR)
+ Aspen (KS)
BCP Land Company Defendants (KS)
Redwine (KS)
BCP Land Company, LLC and a sole/partial member of all of the original “Buyer Defendants.” The remaining two
entities – Business Advisors, LC (KS) and Appliance Center of the Ozarks, LLC (MO) – are also allegedly
connected to Jack Kynion and were added to the group of “Buyer Defendants.”
3
The Court presumes these parties were added pursuant to Federal Rules of Civil Procedure 13(h) and 20. Here,
Defendants did not seek leave of court to add the parties. While adding parties without leave of court is permitted,
especially when a counterclaim is filed as a part of a responsive pleading, the general practice is to obtain a court
order to join the additional party. See generally Travelers Indem. Co. of Am. v. Holtzman Properties, L.L.C., No.
4:08-CV-351 CAS, 2008 WL 3929574, at *2 (E.D. Mo. Aug. 21, 2008).
4
S. Brent Varzaly and Kenneth Dotson are employees of Plaintiff BOKF. Crews and Associates, Inc. and Aspen
Wealth Management, Inc. are on the bondholder’s committee.
3
ANALYSIS
Both Plaintiff BOKF and newly-added Counterclaim Defendants move to dismiss
Amended Counterclaim Counts IV through VII for lack of jurisdiction and failure to state a
claim. The Court will discuss the abuse of process and tortious interference allegations in turn.
A. Abuse of Process & Conspiracy to Abuse Process (Counts IV, V)
In Count IV, Counterclaim Plaintiffs assert abuse of process against BOKF and newlyadded BOKF employees, Varzaly and Dotson. Counterclaim Plaintiffs allege “Plaintiff’s goal in
this lawsuit is not simply to obtain the declaratory judgment it desires from this Court.” Rather,
Counterclaim Plaintiffs allege BOKF amended the complaint to assert fraud and RICO
violations, after threatening to do so and without probable cause or specific knowledge to
support those allegations, for the following malicious purposes: (1) to divert attention of the
buyers of bonds away from Crew’s failure to properly disclose the risks of buying the bonds; (2)
to bleed the assets of Counterclaim Plaintiffs; (3) to interfere with and suppress the conduct of
Counterclaim Plaintiffs’ business; (4) to compel Counterclaim Plaintiffs to buy all outstanding
bonds or otherwise extort money from them; and (5) to improperly pressure Counterclaim
Plaintiffs to settle this litigation. Count V alleges that all Counterclaim Defendants agreed to the
allegedly unlawful purposes cited above.
One argument furthered by Counterclaim Defendants in support of their motion to
dismiss the abuse of process claims is that the Court lacks subject matter jurisdiction to hear such
claims. They argue Counterclaim Plaintiffs failed to plead jurisdiction. Counterclaim Plaintiffs
assert through briefing that the Court has subject matter jurisdiction pursuant to 28 U.S.C. §
1367(a) because the abuse of process claims “arise from the same nucleus of operative facts as
the claims asserted in the First Amended Complaint.” Counterclaim Defendants respond that the
4
abuse of process counterclaims are merely permissive and the Court does not have an otherwise
independent basis for subject matter jurisdiction.
1. Abuse of process claims are permissive counterclaims.
Under Eighth Circuit precedent, a party asserting a counterclaim can invoke ancillary
jurisdiction over the counterclaim only where it is considered compulsory; where the
counterclaim is permissive, the party asserting the counterclaim must provide an independent
basis for the court’s subject matter jurisdiction. Shelter Mut. Ins. Co. v. Pub. Water Supply Dist.
No. 7 of Jefferson Cnty., Mo., 747 F.2d 1195, 1197 (8th Cir. 1984); see generally Tullos v. Parks,
915 F.2d 1192, 1194 (8th Cir. 1990). A counterclaim is considered compulsory where it “arises
out of the transaction or occurrence that is the subject matter of the opposing party’s claim.”
Fed. R. Civ. P. 13(a)(1)(A).
The Eighth Circuit cites four tests to determine whether a
counterclaim arises out of the same transaction or occurrence.
Cochrane v. Iowa Beef
Processors, Inc., 596 F.2d 254, 264 (8th Cir. 1979); Tullos v. Parks, 915 F.2d 1192, 1195 (8th
Cir. 1990). Those tests ask whether: (1) the issues of fact and law raised by the claim and
counterclaim are largely the same, (2) res judicata would bar a subsequent suit on the
counterclaim, (3) substantially the same evidence supports/refutes the claim and counterclaim,
and (4) there is any logical relation between the claim and the counterclaim. Id. at 623.
Applying these tests, the Eighth Circuit has found abuse of process counterclaims
permissive where the alleged abuse of process is the commencement of the present lawsuit. See
Cochrane v. Iowa Beef Processors, Inc., 596 F.2d 254, 263 (8th Cir. 1979) (holding legal abuse
of process claim based on filing of lawsuit in Iowa was permissive in the Iowa lawsuit itself
because the abuse of process claim did not arise from the same transaction or occurrence as the
underlying claims in the Iowa lawsuit – “In no substantial sense can appellants’ claims for relief
5
for abuse of process be found to have arisen out of the alleged breach of contract by Bagley and
out of the alleged breach of fiduciary duties by Bagley and Aarsen.”); Comidas Exquisitos, Inc.
v. Carlos McGee's Mexican Cafe, Inc., 602 F. Supp. 191, 200 (S.D. Iowa) aff'd sub nom.
Comidas Exquisitos, Inc. v. O'Malley & McGee's, Inc., 775 F.2d 260 (8th Cir. 1985) (“The Court
can exercise ancillary jurisdiction over defendant’s counterclaim only if it is compulsory. . . .
However, defendant’s counterclaim arises out of the prosecution of this action while the subject
matter of plaintiff’s claims is defendant’s use of the name ‘Carlos McGee’s.’ Therefore, the
Court cannot exercise ancillary jurisdiction over defendant’s counterclaim.”). Other federal
courts have also found abuse of process counterclaims permissive in these types of situations.5
Missouri courts appear to agree. See, e.g., Diehl v. Fred Weber, Inc., 309 S.W.3d 309, 316 (Mo.
Ct. App. 2010) (allowing abuse of process claim against defendant for defendant’s alleged abuse
of process in commencement of a prior suit).
Here, like the cases cited in the discussion above, the abuse of process counterclaims do
not arise out of the same transaction or occurrence that is the subject matter of Plaintiff’s claims.
First, the issues of fact and law raised by Plaintiff’s claims and Defendants’ abuse of process
counterclaims are not “largely the same.” Defendants’ counterclaims focus on the prosecution of
5
Walker v. THI of New Mexico at Hobbs Ctr., 803 F. Supp. 2d 1287, 1316-22 (D.N.M. 2011) (abuse of process
claim permissive where underlying claims were for racial discrimination, retaliation, breach of contract, and
intentional infliction of emotional distress); In re Seybold, No. 07-11441, 2008 WL 1321878, at *3 (Bankr. N.D.
Ind. Mar. 11, 2008) (abuse of process claim permissive where underlying claim was for non-dischargeable debt
based on bank fraud); Silverstein v. United Men's Store, No. CIV.A. 85-2838, 1986 WL 1999, at *1 (E.D. Pa. Feb. 5,
1986) (abuse of process claim permissive where underlying claim brought under ADEA); La Salle Nat'l Bank v.
Keystone Serv. Co. Div. of C.O.L.E., No. 83 C 5436, 1984 WL 865, at *3 (N.D. Ill. Sept. 4, 1984) (abuse of process
claim permissive where underlying claims were for RICO and declaratory relief); N. Carolina Elec. Membership
Corp. v. Carolina Power & Light Co., 85 F.R.D. 249, 251-54 (M.D.N.C. 1979) (abuse of process claim permissive
where underlying claims were for antitrust violations); Bose Corp. v. Consumers Union of U.S., Inc., 384 F. Supp.
600, 603 (D. Mass. 1974) certified question answered, 367 Mass. 424, 326 N.E.2d 8 (1975) (abuse of process claim
permissive where underlying claims were for unfair competition and Lanham Act violation); see also Galloway v.
Zuckert, 424 N.W.2d 437, 439 (Iowa 1988) (abuse of process claim permissive where underlying claims concerned
lease agreement). But see Pochiro v. Prudential Ins. Co. of Am., 827 F.2d 1246, 1252 (9th Cir. 1987) (noting
“courts have split on the question whether an abuse of process claim is a compulsory counterclaim in the very action
which allegedly is abusive”).
6
this action while the subject matter of Plaintiff’s claims involves the sales of Special Assessment
Property and the interpretation of the Trust Indenture. Not only do the claims and counterclaims
involve different facts but the elements of the claims are dissimilar.6 Second, res judicata would
not bar a subsequent claim for abuse of process. The focus of an abuse of process claim is not
that the opposing party brought suit upon an unfounded claim but, rather, that suit was initiated
for some collateral purpose. Howard v. Youngman, 81 S.W.3d 101, 118 (Mo. Ct. App. 2002);
Teefey v. Cleaves, 73 S.W.3d 813, 818 (Mo. Ct. App. 2002). Therefore, regardless of whether
Plaintiff ultimately has a meritorious RICO or fraudulent misrepresentation claim, Counterclaim
Plaintiffs can pursue their abuse of process claim without the bar of res judicata. See Moffett v.
Commerce Trust Co., 283 S.W.2d 591, 599 (Mo. 1955) (“in an action for abuse of process it is
unnecessary for the plaintiff to prove that the proceeding has terminated in his favor”). Third,
based on the discussion above, it is apparent that different evidence is required to prove/disprove
the claims and counterclaims; for example, the counterclaims must present evidence of
Plaintiff’s alleged collateral purposes (i.e. evidence of threats to sue, the risks of bonds that were
not disclosed to bondholders, the lawsuit’s negative effect on business), whereas the original
claims must present evidence related to the circumstances surrounding the sales of property,
Defendants’ alleged scheme, and the interpretation of the Trust Indenture. Finally, any logical
relation between the sales of property, the release of the DPRF funds, and Plaintiff’s alleged
collateral purpose in amending the complaint is too attenuated to outweigh the potential issue of
juror confusion if the abuse of process counterclaims were to proceed to trial in this action.
6
The elements involved in an abuse of process claim are: “(1) the present defendant made an illegal, improper,
perverted use of process, a use neither warranted nor authorized by the process; (2) the defendant had an improper
purpose in exercising such illegal, perverted or improper use of process; and (3) damage resulted[.]” Ritterbusch v.
Holt, 789 S.W.2d 491, 493 (Mo. 1990). These elements are clearly distinct from Plaintiff’s claims for declaratory
judgment regarding the parties’ respective rights under the Trust Indenture, unjust enrichment, RICO, and fraudulent
misrepresentation. See generally, Court’s Order date 12/23/14 (Doc. 104). For example, the RICO claim requires
Plaintiff to show: “‘(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Crest Const.
II, Inc. v. Doe, 660 F.3d 346, 353 (8th Cir. 2011).
7
Based on the foregoing, and under Eighth Circuit precedent regarding ancillary
jurisdiction, the abuse of process counterclaims are permissive and without an independent basis
for subject matter jurisdiction;7 therefore, those counterclaims should be dismissed for lack of
subject matter jurisdiction.
2. Abuse of process claims are not part of the same case or controversy.
Although the Eighth Circuit has not yet addressed the issue, several appellate courts hold
that the 1990 enactment of 28 U.S.C. § 1367 allows supplemental jurisdiction to cover at least
some permissive counterclaims that were previously denied ancillary jurisdiction. Global NAPs,
Inc. v. Verizon New England, Inc., 603 F.3d 71, 76 (1st Cir. 2010); Jones v. Ford Motor Credit
Co., 358 F.3d 205, 210–14 (2d Cir. 2004); Channell v. Citicorp Nat'l Servs., Inc., 89 F.3d 379,
384–87 (7th Cir. 1996).8
For those courts, if a counterclaim satisfies the “same case or
controversy” requirement under 28 U.S.C. § 1367, then the counterclaim can invoke
supplemental jurisdiction even if it does not arise from the same transaction or occurrence. Id.
Claims are part of the same case or controversy if they derive from a common nucleus of
operative fact. OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 350 (8th Cir. 2007). Claims
derive from a common nucleus of operative fact if they would ordinarily be expected to be tried
7
The Court’s review shows that the abuse of process counterclaims do not present an independent federal question
and would destroy complete diversity – i.e. Counterclaim Defendants Varzaly and Aspen have common citizenship
with Counterclaim Plaintiffs.
8
See generally Charles Alan Wright, et al., 13D Fed. Prac. & Proc. Juris. § 3567.1 (3d ed. 2014):
One intriguing issue is whether a court may exercise supplemental jurisdiction over a permissive
counterclaim under Civil Rule 13(b). Such a claim, by definition, does not arise from the same transaction
or occurrence as the underlying dispute. Some courts have stated as boilerplate that compulsory
counterclaims do invoke supplemental jurisdiction and permissive counterclaims do not. They do so by
incorrectly equating Gibbs with the transaction or occurrence test of the Civil Rules. As discussed above,
however, Gibbs is broader than transaction or occurrence, and embraces all claims with a loose factual
connection to the jurisdiction-invoking claim. While it is undoubtedly true that many—perhaps most—
permissive counterclaims will not be sufficiently factually related to the underlying case to satisfy Gibbs,
courts increasingly recognize that some permissive counterclaims can satisfy § 1367(a). Thus courts should
avoid bromides such as the boilerplate concerning permissive counterclaims and engage instead in a
meaningful consideration of whether the claim satisfies § 1367(a).
8
together. Id. The “same case or controversy” requirement under 28 U.S.C. § 1367 is considered
broader than the “transaction or occurrence” test in Rule 13. See Global NAPs, 603 F.3d at 88;
see also Charles Alan Wright, et al., 13D Fed. Prac. & Proc. Juris. § 3567.1 (3d ed. 2014) (“It is
absolutely clear that the common nucleus concept encompasses claims that arise from the same
‘transaction or occurrence’ as the jurisdiction-invoking claim.”).
While this standard makes it possible for courts to find permissive abuse of process
counterclaims covered by supplemental jurisdiction, courts seem unwilling to find a common
nucleus of operative fact where the abuse of process claim arises from the commencement or
maintenance of the pending lawsuit itself. See, e.g., Walker v. THI of New Mexico at Hobbs Ctr.,
803 F. Supp. 2d 1287, 1324-25 (D.N.M. 2011) (“The facts upon which Walker’s claims are
based relate to Walker’s employment at THI of Hobbs and how she was treated during her
employment. The facts upon which the Counterclaim are based relate to Walker’s actions in
filing her Complaint and amended Complaints, and her actions in the litigation. These nuclei of
operative fact are not related in time, space, or origin.”); see also Sparig v. Danenberg, No. 11CV-5206 JG CLP, 2012 WL 2564231, at *5 (E.D.N.Y. June 29, 2012); Miller v. Cabletron Sys.,
Inc., No. C-92-182-L, 1994 WL 258649, at *6 (D.N.H. Feb. 5, 1994); but see Millennium Labs.,
Inc. v. Rocky Mountain Tox, LLC, No. 10-CV-02734-MSK-KMT, 2011 WL 4736357, at *3 (D.
Colo. Oct. 7, 2011). In a similar vein, the Eastern District of Missouri recently held that a
malicious prosecution counterclaim did not share a common nucleus of operative fact with an
FLSA claim, and could therefore not invoke supplemental jurisdiction. Herbst v. Ressler &
Associates, Inc., No. 4:13-CV-2327 CAS, 2014 WL 4205294, at *5 (E.D. Mo. Aug. 22, 2014)
(“The counterclaim is based on an act—plaintiff's filing of the instant FLSA suit—that is entirely
separate from facts concerning plaintiff's work hours, duties and pay.”).
9
Here, the Court finds the abuse of process counterclaims do not form part of the same
case or controversy as Plaintiff’s claims. Counterclaim Plaintiffs argue the counterclaims arise
from a common nucleus of operative fact because both the claims and counterclaims will require
consideration of facts related to the Trust Indenture, the development of Trust Indenture Section
406, Counterclaim Plaintiff’s acquisition of the development, the sales of the property, the
release of funds, and the filing and amending of this lawsuit. Based on the limited nature of a
Missouri abuse of process claim, however, the Court disagrees that the entire life of the Trust
Indenture constitutes the “nucleus of operative facts” for the abuse of process counterclaims. See
HB Gen. Corp. v. Manchester Partners, L.P., 95 F.3d 1185, 1198 (3d Cir. 1996) (“Claims are
part of the same case or controversy if they share significant factual elements.” (emphasis
added)); Yetnikoff v. Mascardo, No. 06 CIV.13494 GEL, 2007 WL 690135, at *2 (S.D.N.Y.
Mar. 6, 2007) (“While facts relevant to one claim might provide background with respect to the
other, more is required to satisfy the common nucleus of operative fact standard.”). The Court
finds the facts related to Plaintiff’s actions during the course of this litigation (i.e. the purpose for
amending the complaint) are entirely separate from facts related to the terms of the contract, the
sales of the property, the release of the DPRF funds, and Defendants’ actions at or before the
time of the sales. Therefore, the Court cannot hold that the abuse of process counterclaims share
a common nucleus of operative fact with Plaintiff’s claims.
In sum, Defendants’ abuse of process and conspiracy to abuse process counterclaims do
not arise from the same transaction or occurrence as Plaintiff’s claims, nor do they derive from a
common nucleus of operative fact. Therefore, the Court lacks subject matter jurisdiction to hear
those claims and they are hereby dismissed without prejudice.
10
Count VI – VII: Tortious Interference with Contract & Conspiracy to Commit Tortious
Interference with Contract
In Count VI, Redwine claims two members of the bondholders committee – Crews and
Associates, Inc. and Aspen Wealth Management, Inc. – tortiously interfered with his contractual
right to receive money released from the DPRF. Redwine alleges Crews and Aspen both knew
Redwine had a contractual right to receive money released from the DPRF because they were
both involved in the drafting of the DPRF provision and knew (1) no development, vertical or
horizontal, is required under the Trust Indenture to release funds from the DPRF after a sale of
property, and (2) the buyer’s payment of assessments after the sale is wholly irrelevant to
whether funds must be released from the DPRF. Redwine alleges Crews and Aspen interfered
with his contractual right to receive payments by conspiring with BOKF to file and amend this
lawsuit. Count VII is by Redwine against all Counterclaim Defendants and alleges that all
Counterclaim Defendants agreed that BOKF should intentionally and tortiously interfere with
Redwine’s contractual right to receive DPRF funds and that, by filing and amending this lawsuit,
BOKF committed an overt act in furtherance of the conspiracy.
Even assuming the Court has supplemental jurisdiction over counterclaims VI and VII,
those claims are futile. Under Missouri law, “[a] party to the contract cannot be held responsible
for inducing himself to commit a breach or for conspiring to breach it.”
White v. Land
Clearance for Redevelopment Auth., 841 S.W.2d 691, 695 (Mo. Ct. App. 1992) (holding tortious
interference claim could not be asserted against a party to the contract). Therefore, BOKF – who
is the Trustee under the Trust Indenture (i.e. a party to the relevant contract) – cannot be held
liable for tortiously interfering or conspiring to tortiously interfere with its own contract. See id.
(“To hold otherwise would be tantamount to permitting recovery of punitive damages in a
contract action, which the Supreme Court of Missouri has declared to be improper.”).
11
Once BOKF is removed from the equation, the tortious interference “counterclaims” are
asserted solely against newly added parties. “[A] counterclaim or cross-claim may not be
directed solely against persons who are not already parties to the original action, but must
involve at least one existing party.” Microsoft Corp. v. Ion Technologies Corp., 484 F. Supp. 2d
955, 965 (D. Minn. 2007) (quoting 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 1435 (2d ed. 1990)). Because counterclaims VI and VII do not
involve at least one party to the original action, they cannot be asserted against Dotson, Verzaly,
Crews, or Aspen.9
For the foregoing reasons, Counts VI and VII of the First Amended
Counterclaim are hereby dismissed.
DECISION
Based on the foregoing analysis, the motions to dismiss (Docs. 155, 157, 158) are hereby
GRANTED to the extent that they are consistent with this opinion.
The Court hereby
DISMISSES Counts IV, V, VI, and VII of the First Amended Counterclaim. Counts IV, V, and
VI are dismissed without prejudice. Count VII is dismissed with prejudice as to BOKF and
dismissed without prejudice as to the other persons. Plaintiff’s motion to sever (Doc. 165) is
DENIED AS MOOT.
IT IS SO ORDERED.
Date: May 15, 2015
/s/ Douglas Harpool_______________
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE
9
Counterclaim Defendants cannot invoke Rule 18, as suggested in briefing, because Rule 18 applies to joining
additional claims against an opposing party. Fed. R. Civ. P. 18. Here, Dotson, Verzaly, Crews, and Aspen are not
“opposing parties” because they have not been appropriately joined to any viable counterclaim in this action.
12
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