State Farm Mutual Automobile Insurance Company v. Mathis et al, No. 4:2009cv00308 - Document 56 (N.D. Okla. 2009)

Court Description: OPINION AND ORDER by Chief Judge Claire V Eagan that Plaintiff's Motion to Dismiss Defendant Roger Johnson's Cross-Complaint Against Andrew Mathis and Brief in Support (Dkt. # 51) is granted: the document titled Defendant Roger John son's Cross-Complaint Against Andrew Mathis (Dkt. # 50) is stricken and the crossclaim asserted therein is dismissed. ; striking/withdrawing document(s); terminating party Roger Johnson and Andrew A Mathis ; granting 51 Motion to Dismiss (Re: 50 Cross-claim ) (Documents Terminated: 50 Cross-claim ) (RGG, Chambers)

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, ) ) ) Plaintiff, ) ) v. ) ) ANDREW A. MATHIS, DAVID COX, ) STACEY KIOUS, on behalf of K. Kious ) and J. Cox Kious, minor children and next of ) kin of Dennis Cox, deceased, MIKE MILLER, ) RUBI LOPEZ, personally and on behalf of the ) estate of Carlos Lopez, AMPARO LOPEZ, ) CARLOS A. LOPEZ, RAJNEEL NAICKER, ) RANDY MCBROOM, and ROGER JOHNSON, ) ) Defendants. ) Case No. 09-CV-0308-CVE-TLW OPINION AND ORDER Now before the Court is Plaintiff s Motion to Dismiss Defendant Roger Johnson s CrossComplaint Against Andrew Mathis and Brief in Support (Dkt. # 51). Plaintiff filed the instant motion on November 6, 2009. To date, Johnson has failed to respond to the motion. Plaintiff filed a declaratory judgment action in this Court, seeking a determination that it owed no duty to defend or indemnify defendant Mathis against claims asserted by the other defendants arising out of a motor vehicle accident. Dkt. # 2. The complaint alleged that Johnson claims he was struck by Mathis s vehicle and suffered personal injuries. Id. at 4. Johnson filed an answer to plaintiff s complaint (Dkt. # 20) on June 25, 2009. In that document, Johnson did not assert any claims for relief. See Dkt. # 20. The Joint Status Report (Dkt. # 36), filed August 28, 2009, did not list any claims for relief by Johnson. Johnson filed a document titled Defendant Roger Johnson s Cross-Complaint Against Andrew Mathis (Dkt. # 50) on October 23, 2009. In that document, Johnson purported to assert a personal injury claim against Mathis. See Dkt. # 50. Fed. R. Civ. P. 13(g) states that [a] pleading may state as a crossclaim any claim by one party against a coparty . . . (emphasis added). Rule 12 sets the time for response to a crossclaim as within 20 days after being served with the pleading that states the . . . crossclaim. (emphasis added). Rule 7(a) lists the pleadings allowed in federal court. These include: a complaint; an answer to a complaint; and an answer to a crossclaim. Fed. R. Civ. P. 7(a). Rule 7 does not list a crossclaim or a cross-complaint as a permissible pleading. Id. It is clear from these rules that a crossclaim must be stated in a pleading, and that a standalone crossclaim is not itself a pleading. Therefore, in general, a crossclaim must be asserted in an answer. See Langer v. Monarch Life Ins. Co., 966 F.2d 786, 810 (3d Cir. 1992) ( Federal Rules of Civil Procedure 12(b) and 13(g) require that cross-claims be stated in a pleading, and under Rule 7(a) cross-claims should be contained in a defendant's answer ), In re Cessna Distributorship Antitrust Litigation, 532 F.2d 64, 68 (8th Cir. 1976) (stating that a crossclaim must be asserted in a pleading but is not itself a pleading), U.S. v. Finn, 239 F.2d 679, 684 n.28 (9th Cir. 1956) ( [t]he only way to file a cross-claim in a Federal court is to file an answer containing a cross-claim ), Allied Medical Care Assocs. v. State Farm Mut. Auto. Ins. Co., No. 08-2434, 2009 WL 839063, at *2 (E.D. Pa. Mar. 26, 2009) ( [b]ecause a counterclaim is not itself a pleading, to state a counterclaim consistently with Rule 7(a) and Rule 13, a party must file the counterclaim as part of a recognized pleading ) (emphasis in original), Cornell v. Chase Brass & Copper Co., 48 F. Supp. 979, 980 (S.D.N.Y. 1943) ( only an answer may contain a counterclaim ); cf. Bernstein v. IDT 2 Corp, 582 F. Supp. 1079 (D.Del. 1984) (dismissing or striking counterclaims because they were not raised in a Rule 7 pleading). Johnson s purported crossclaim was not filed in a Rule 7 pleading, and was, therefore, improperly filed. The Court will not construe Johnson s filing as an amendment to his answer, because: Johnson has made no such request; it was not styled as such; it was filed after the deadline for amending the pleadings in the Court s scheduling order; and Johnson did not request leave to amend his answer. IT IS THEREFORE ORDERED that Plaintiff s Motion to Dismiss Defendant Roger Johnson s Cross-Complaint Against Andrew Mathis and Brief in Support (Dkt. # 51) is granted: the document titled Defendant Roger Johnson s Cross-Complaint Against Andrew Mathis (Dkt. # 50) is stricken and the crossclaim asserted therein is dismissed. DATED this 16th day of December, 2009. 3

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