Ward v. J.C. Penney Company, Inc. et al

Filing 56

ORDER granting 50 Motion to Dismiss Crossclaim Without Prejudice. Signed by Judge S. Thomas Anderson on 2/6/15. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

SHARON WARD and DAVID WARD,
Plaintiffs,
v.
J.C. PENNEY COMPANY, INC.;
ASA CARLTON, INC.;
RAFAEL ARREOLA;
LABOR READY CENTRAL, INC.;
JOHN DOES 4 through 10;
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

No. 14-2301-STA-dkv

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS CROSS-CLAIM
WITHOUT PREJUDICE
________________________________________________________________________
Before the Court is Defendant Rafael Arreola’s (“Arreola”) Motion to Dismiss Defendant
Asa Carlton, Inc.’s CrossClaim (ECF No. 50) filed on December 22, 2014. Defendant Asa
Carlton, Inc. (“Carlton”) has responded in opposition to the Motion. For the reasons set forth
below, the Motion to Dismiss is GRANTED without prejudice to Carlton’s right to re-file the
Crossclaim.
BACKGROUND
On March 24, 2014, Plaintiffs Sharon Ward and David Ward filed a Complaint in state
court, alleging negligence against Defendants for injuries Plaintiffs’ sustained while shopping in
a J.C. Penney’s department store in Memphis, Tennessee. On April 28, 2014, Defendants
removed the action to federal court, and on May 23, 2014, Plaintiffs filed an Amended
Complaint (ECF No. 10). Carlton filed an Answer (ECF No. 23) to the Amended Complaint on

1

July 16, 2014, and Arreola filed his Answer (ECF No. 24) two days later on July 18, 2014. The
Court entered a Rule 16(b) scheduling order (ECF No. 28) on July 31, 2014. Among other
deadlines, the Court set September 4, 2014, as the deadline for amending pleadings. A jury trial
is set for July 27, 2015.
On December 11, 2014, Carlton filed a Crossclaim seeking indemnity from Arreola
pursuant to the terms of a master subcontract between those Defendants. In his Motion to
Dismiss, Arreola argues that the Court should dismiss the Crossclaim because Carlton filed the
Crossclaim outside of the case management order’s deadline for amending pleadings. Arreola
contends that the Crossclaim is a pleading for purposes of the scheduling order and therefore
subject to the scheduling order’s September 4, 2014 deadline for amending pleadings. As a
result, Carlton should have first sought leave of court before filing the Crossclaim. Under the
circumstances, the Court should dismiss the Crossclaim.
Carlton has responded in opposition, arguing that its Crossclaim is procedurally proper.
Carlton denies that it was necessary to file the Crossclaim with its Answer or any other pleading.
The Crossclaim is permissive under Federal Rule of Civil Procedure 13(g) and was filed within
the applicable statute of limitations. Carlton maintains that the Crossclaim is “an independent
action” and not an amended pleading or a claim that should have been included in its Answer.
As such, the deadline for amending the pleadings did not apply to the filing of the Crossclaim.
Finally, Arreola will suffer no prejudice from the filing of the Crossclaim. Carlton tendered its
defense and sought indemnity from Arreola by demand letter dated October 24, 2014, to which
Arreola never responded. Therefore, Arreola was on notice of the indemnity claim prior to the
filing of the Crossclaim. Carlton requests that the Court deny the Motion to Dismiss or, should

2

the Court grant the Motion, dismiss the Crossclaim for indemnity without prejudice to re-file the
Crossclaim in a separate action.
ANALYSIS
The issue presented is whether Carlton was required to seek leave to file its Crossclaim
outside of the deadline set by the Court for filing amended pleadings. The Court holds that
Carlton’s Crossclaim is an amended pleading subject to the scheduling order deadline for
amending pleadings and that Carlton was required to seek leave to file the Crossclaim. Federal
Rule of Civil Procedure 13(g) reads: “A pleading may state as a crossclaim any claim by one
party against a coparty if the claim arises out of the transaction or occurrence that is the subject
matter of the original action . . . .”1 Put another way, a crossclaim, though permissive under Rule
13(g), must be stated or alleged as part of a pleading. The Federal Rules of Civil Procedures
allow only the following pleadings: “(1) a complaint; (2) an answer to a complaint; (3) an answer
to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party
complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an
answer.”2 Construing these two rules together, a crossclaim must be alleged in one of the
pleadings allowed under the Federal Rules, typically as part of an answer to a complaint.
Carlton’s argument that its Crossclaim “need not be included in [its] Answer” is true as
far as it goes. A crossclaim need not always appear in an answer, but a crossclaim must be stated
as part of one of the pleadings permitted by the Federal Rules of Civil Procedure. In this case
Carlton’s only pleading was its Answer to the Amended Complaint filed on July 16, 2014. It is
undisputed that the Answer did not allege a crossclaim. Instead Carlton filed its Crossclaim as

1

Fed. R. Civ. P. 13(g).

2

Fed. R. Civ. P. 7(a).
3

“an independent action” some five months after it filed its Answer but not as part of an amended
pleading. Under all of the circumstances, the proper procedure to plead the Crossclaim Carlton
filed on December 11, 2014, was to first file a motion for leave to amend the pleadings pursuant
to Rule 15(a)(2).3 Carlton failed to bring its Crossclaim in this manner. Therefore, Arreola’s
Motion to Dismiss is GRANTED, though the Court will dismiss the Crossclaim without
prejudice to re-file the claim.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: February 6, 2015.

3

Fed. R. Civ. P. 15(a)(2) (“In all other cases, a party may amend its pleading only with
the opposing party’s written consent or the court’s leave. The court should freely give leave
when justice so requires.”).
4