United States District Court, S.D. Florida
OPINION ORDER ON MOTION TO DROP PARTY FOR
N. Scola, Jr. United States District Judge
matter is before the Court upon Counter-Defendant Erik
Dreke's (“Dreke”) motion to drop party for
misjoinder or in the alternative, motion to dismiss count
five of the counterclaim. (the “Motion, ” ECF No.
10.) filed by Defendant/Counter-Plaintiff Empire Office, Inc.
(“Empire”) (ECF Nos. 6, 10). Having considered
the parties' submissions and the applicable law, the
Court grants the Motion (ECF No.
action arises from a contract dispute relating to a
construction project in Miami (the “Project”).
Defendant/Counter-Plaintiff Empire Office, Inc.
(“Empire”) is a subcontractor on the Project and
entered into a sub-subcontract with
Plaintiff/Counter-Defendant General Property Construction
Company (“GPCC”). (ECF No. 1-4 at ¶¶ 7,
after the parties entered that agreement, GPCC sued Empire in
Florida state court for breach of contract. (Id.)
Empire removed the action to this Court based on federal
diversity jurisdiction. (ECF No. 1.) Once in federal court,
Empire answered the complaint and filed five counterclaims
against GPCC and Dreke, as a “joined party under Rule
19(a).” (ECF No. 6.) Dreke was not an original party to
this action. Empire brought three counterclaims only against
GPCC: two counts for breach of contract and one count for
negligence. (Id.) As for Dreke, Empire sued him for
fraud in the inducement and negligence. GPCC was not a party
to either of the claims brought against Dreke.
then filed the Motion, arguing that he is improperly joined
as a party to this action. (ECF No. 10.) Specifically, Dreke
argues that Fed.R.Civ.P. 13(h) does not authorize a defendant
to assert a counterclaim solely against a third-party. Empire
filed a response brief in opposition, to which Dreke replied.
(ECF Nos. 16, 17.)
Rules of Civil Procedure 13 and 14 govern the claims a
defendant may make in a civil action. Fed.R.Civ.P. 13, 14.
Those rules do not permit a defendant to counterclaim
“solely against persons who are not already parties to
the original action.” Charles Wright, Arthur Miller,
& Mary Kane, Federal Practice & Procedure § 1435
(3d ed. 2010); F.D.I.C. v. Bathgate, 27 F.3d 850,
873-74, n. 13 (3d Cir. 1994); Various Markets, Inc. v.
Chase Manhattan Bank, 908 F.Supp. 459, 471 (E.D. Mich.
1995); AllTech Commc'ns, LLC v. Bros., 601
F.Supp.2d 1255, 1261 n.3 (N.D. Ok. 2008). Indeed, Rule 13(h)
only permits joinder of parties to a counterclaim when the
counterclaim is also asserted against an existing party to
the suit. See AllTech, 601 F.Supp.2d at 1261
(collecting cases and summarizing that the “weight of
authority holds that Rule 13(h) cannot be used to assert a
counterclaim or crossclaim solely against an unnamed
party”); B&D Nutritional Ingredients, Inc. v.
Unique Bio Ingredients, LLC, No. 16-62364, 2017 WL
8751751, *2 (S.D. Fla. Jan 25, 2017) (Cohn, J.) (same and
dismissing claims against improperly joined third-party
counterclaim defendants); CreditMax Holdings, LLC v.
Kass, No. 11-81056, 2012 WL 12854879, **2-3 (S.D. Fla.
July 24, 2012) (Ryskamp, J.) (“Joinder of third parties
under Rule 13(h) is permissible only to adjudicate a
counter-claim or cross-claim against an existing party,
” and granting motion to dismiss third-party
the two nominal counterclaims against Dreke are asserted
solely against Dreke, who was not an original party
to this action. Because Empire does not bring either
of those counterclaims against GPCC, the only other original
party to this suit, Rule 13(h) is not a vehicle for joinder
of Dreke here. As such, the Court grants the
Motion, drops Dreke from this suit and dismisses all
counterclaims brought by Empire against him.
the Court grants the Motion (ECF No.
10), drops Dreke from this suit and dismisses all
counterclaims brought against him by Empire. Dreke's
motion for summary judgment (ECF No. 45) is
denied as moot.