United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD, CHIEF UNITED STATES DISTRICT JUDGE
plaintiff, PMI Nebraska, moves the Court to strike the
counterclaims asserted by the defendants to the extent that
the counterclaims name non-plaintiff Colin McClure as a
counterclaim defendant. Filing 29. That motion will
Nebraska's primary claims are that defendants David
Nordhues and Chris Golick, former employees of PMI Nebraska,
breached their duties to PMI Nebraska by forming a competing
business before leaving their employment, and that they are
now competing with PMI Nebraska using trade secrets they took
from PMI Nebraska. See filing 1-1. The defendants
counterclaim for defamation and tortious interference with
business expectancies, based on their allegation that the
charges leveled against them by PMI Nebraska and its
president, Colin McClure, are false. Filing 20 at
issue is that McClure is named as a defendant to the
counterclaim, despite not being a plaintiff in the first
instance. PMI Nebraska points to Fed. R. Civ. P. 13,
which provides that a counterclaim must or may be brought
against an "opposing party." So, PMI Nebraska
argues, because McClure is not already a plaintiff, he is not
an "opposing party" against whom a counterclaim may
be asserted. See filing 30 at 4.
the defendants point out, Rule 13(h)-captioned, "Joining
Additional Parties"-provides that "[Fed. R.
Civ. P.] 19 and [Fed. R. Civ. P.] 20 govern the
addition of a person as a party to a counterclaim or
crossclaim." The defendants rely on Rule 20.
See filing 31 at 3. Rule 20(a)(2) provides that
[p]ersons . . . may be joined in one action as defendants if:
(A) 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
(B) any question of law or fact common to all defendants will
arise in the action.
together, Rule 13(h) and Rule 20 make it clear that if a
counterclaim is properly asserted, then any person whose
joinder in the original action would have been possible under
Rule 20 may be added as a party to the counterclaim.
See 6 Charles Alan Wright & Arthur R. Miller
et al., Federal Practice and Procedure § 1434 (3d
ed. 2010 & Supp. 2019); see Pace v.
Timmermann's Ranch & Saddle Shop Inc., 795 F.3d
748, 755 n.9 (7th Cir. 2015). So, an additional person may be
joined in order to adjudicate a counterclaim that is already
before the Court or one that is being asserted at the same
time the addition of a nonparty is sought, so long as the
counterclaim involves at least one existing party.
See Wright & Miller, supra, §
1435. That rule is satisfied here: the
counterclaims are asserted against one existing
"opposing party" and one new party. That's all
Nebraska's reply brief, apparently recognizing those
principles, takes a different tack: PMI Nebraska points out
that its liability is presumably based on vicarious liability
for McClure's conduct as its president. See
filing 20 at 7-8. So, PMI Nebraska says that if
McClure acted in his individual capacity, then PMI Nebraska
itself isn't a proper defendant-which would mean that the
counterclaims are impermissibly brought only against a
nonparty, not an existing party. Filing 34 at 5.
problem with that argument is that McClure might also have
been acting within the scope of his employment-which would
permit both McClure and PMI Nebraska to be liable. See
Kocsis v. Harrison, 543 N.W.2d 164, 169 (Neb. 1996).
Even that isn't required, though: Rule 20 permits
defendants to be joined when "any right to relief is
asserted against them jointly, severally, or in the
alternative." And in any event, the Court isn't
persuaded that it's necessary to burrow down into
factfinding about the scope of McClure's employment in
order to answer a joinder question. The counterclaims are on
their face brought against an existing party and a new party.
That's enough for purposes of Rule 13(h) and Rule 20.
purpose of Rule 20 "is to promote trial convenience and
expedite the final determination of disputes, thereby
preventing multiple lawsuits." Mosley v. Gen. Motors
Corp., 497 F.2d 1330, 1332 (8th Cir. 1974). PMI
Nebraska's insistence that the defendants instead
"bring a new lawsuit against Colin McClure in his
individual capacity," filing 34 at 7, runs directly
counter to that purpose-and more importantly, counter to the
rules themselves. Accordingly, IT IS ORDERED that PMI
Nebraska's motion to strike (filing 29) is