Vivot Equipment Corporation v. Underwater Mechanix Services, LLC

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX ║ VIVOT EQUIPMENT CORPORATION, ║ ║ Plaintiff, ║ ║ v. ║ 1:23-cv-00009-WAL-EAH ║ UNDERWATER MECHANIX ║ SERVICES, LLC, ║ ║ Defendant. ║ ________________________________________________ ║ TO: Charles Jacob Gower, Esq. For Plaintiff Joseph D. Sauerwein, Esq. Matthew J. Duensing, Esq. Michael Friedman, Esq. Nicole Moss, Esq. For Defendant ORDER THIS MATTER comes before the Court on Plaintiff’s Motion to Strike Defendant’s Amended Counterclaim for Failure to Secure Leave of Court, filed on January 4, 2024 by Plaintiff Vivot Equipment Corporation (“Vivot”). Dkt. No. 62. Defendant Underwater Mechanix Services, LLC (“UMX”) did not respond to this motion, and the time to do so has expired. For the reasons that follow, the Court will strike UMX’s counterclaim—but applying a different analysis than proffered by VBiAvoCtK. GROUND In its motion, Vivot provides the following procedural history. Defendant UMX filed a counterclaim as part of its answer on July 6, 2023. Dkt. No. 62-1 (citing Dkt. No. 11). Vivot moved to dismiss the counterclaim on July 30, 2023, pursuant to Fed. R. Civ. P. 12(b)(6) for Vivot Equip. Corp. v. Underwater Mechanix Servs., LLC 1:23-cv-0009-WAL-EAH Order Page 2 Id. failure to stateId a. claim. (citing Dkt. Nos. 19, 20). That same day, Vivot answered the counterclaim. (citing Dkt. No. 21). All three filings were served via CM/ECF. On December 15, 2023, UMX filed a stand-alone amended counterclaim, Dkt. No. 60, rejected by the Court as deficient; UMX refiled the amended counterclaim on December 20, 2023. Dkt. No. 61. Prior to filing its amended counterclaim, Vivot did not give UMX written consent to amend. Dkt. No. 62-1, citing Declaration of C. Jacob Gower, Esq. (Dkt. No. 62-2). Vivot argues that UMX’s amended counterclaim should be stricken as a nullity under Fed. R. Civ. P. 12(f) because the party seeking to amend the pleading—UMX—did not receive Vivot’s written consenOt ’oRre itlhlye Pcoluumrtb’sin lega &v eC foonrs tthrue catmioenn, dInmc.e vn. tL uionndsegra Fteed D. iRs.a Cstiver. PR. e1l5ie(fa, )L(L2C)., Dkt. No. 62-1 at 2. In 19-cv-0024, 20U20.F .WC.W 6.3 L9o3c9a0l 25,6 a Ht e*a5l t(hD &.V W.I. eNlfoavr.e 2F,u 2n0d2 v0. )J,. DM.’as gMisatrrkaetet Judge Cannon cited approvingly to , 240 F.R.D. 149, 154 (D.N.J. 2007) in concluding that a first ameIndd.ed complaint was a nullity for non-compliance with Rule 15(a), and striking the pleadingI.d . Vivot asserts that the same result should occur here with regard to UMX’s counterclaim. at 3. UMX did not respond to Vivot’s mDoIStiCoUnS, aSnIOd Nth e time for it to do so has expired. It appears that Vivot and UMX both believe that a stand-alone amended counterclaim is a pleading, such that UMX could file it separate and apart from an answer, and that Vivot could apply the text of Rule 15(a)(2), governing amendments to pleadings, to the amended Vivot Equip. Corp. v. Underwater Mechanix Servs., LLC 1:23-cv-0009-WAL-EAH Order Page 3 (a) Amendments Before Trial. (1) Amending as a Matter of Course. pleading (A) A party may amend its o(Bn)ce as a pmleaattdeirn gof course no later than: pleading 21 days after serving it, or pleading if the is one to which a responsive is required, 21 days after service of a responsive or 21 (2) Othdeary As mafetenrd smerevnitcse. of a motion under Rule 12(b), (e), or (f), pleadinwghichever is earlier. In all other cases, a party may amend its only with the opposing party's written consent or the court's leave. The court should freely g ive leave when justice so requires. Fed. R. Civ. P. 15(a)(1), (2) (emphasis added).As indicated above, VIvot argues that UMX ran afoul of Rule 15(a)(2) when it filed its amended counterclaim without its consent or the Court’s leave (long after the initial counterclaim was served) and it must be stricken. But Vivot’s—and UMX’s—assumption that a stand-alone counterclaim is a pleading is incorrec t. Federal Rule of Civil Procedure 7(a) delineates the filings that constitute plead(inag)sP:leadings. Only these pleadings are allowed: (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 Fed. R. Civ. P. 7(a). This Rule does not designate counterclaims as pleadings. “Because a counterclaim is not itself a pleading, to statea sa pcaorutn otferclaim consistently withi.e R.,ule 7(a) and RAlulileed 1 M3,e ad .p Aasrstoyc ms. uvs. tS tfailtee t Fhaer cmo uMnutet.r Acluatiom. Ins. Co. a recognized pleading, an answer.” Vivot Equip. Corp. v. Underwater Mechanix Servs., LLC 1:23-cv-0009-WAL-EAH Order Page 4 2 (E.D. Pa. Mar. 26, 2009). A few other courts in the Third Circuit have addrSeeses eadls toh iLsa mngaettre vr,. oMro tnhaer crhe lLaitfeed. I nisss. uCeo .,of whether a stand-alone cross-claim is a pleading. 966 F.2d 786 , 811 (3d Cir.1992) (reasoning that “Federal Rules of Civil Procedure 12(b) and 13(g) require that cross-claims be stated in Ba eprlsetaedinin vg. ,I DanTd C uonrpd.e, r Rule 7(a) cross-claims should be contained in a defendant's answer”); 582 F. Supp. 1079, 1089 (D. Del. 1984) (holding that counterclaims and cross-claims filed independent from an answer were not pleadings and therefore were subject to dismissal). This position is consistent with courts acrSoeses Ctrheet e cCoaurnriterry Ctohrapt. vh. Sauvlel ivaadnd &re Ssosnesd, wInhc.ether a party may file a stand-alone counterclaim. , No. 21-cv-328, 2022 WL 313865 , at *6 (D. Md. Feb. 1, 2022) (“Accordingly, because Rule 7(a) does not include a counterclaim as a plea dEirndgm, aa nc ovu. nFtaerlkcnlaeirm alone is not a pleading within the meaning of the Federal Rules.”); , 1:18-cv-414, 2019 WL 2250276 , at *2 n.6 (S.D. Ala. May 24, 2019) (“In sum, a counterclaim is not a ‘pleading,’ and aM ceoieurnhteenrrcyl aSimar gceanntn oLLt Pb ev .f iWledil l(iatympsically) as a stand-alone document.”) (citations omitted); , 16-cv-4180, 2019 WL 2105986 , at *4 (D.S.D. May 14, 2019) (finding that “because Defendants have not asserted their KCoAuAnBtOeOrcWlaoimrkss wSeirthviicne sa, pLLleCa vd.i nPgil,s lthe Counterclaims are not presently before the Court”); , 17-cv-02530, 2019 WL 1979927 , at *4 (D. Colo. May 3, 2019) (“In other words, a counterclaim filed as a sStaanfedtayl oTnoed adyo, cIunmc. evn. tR iosy i,mproper; a counterclaim incorporated into an answer is proper.”); Nos. 2:12–cv–510, 2:12–cv–929, 2013 WL Vivot Equip. Corp. v. Underwater Mechanix Servs., LLC 1:23-cv-0009-WAL-EAH Order Page 5 rMaitchreors,o aft c Coournpt.e vr.c Ilaoinm T iesc tho. Cboer ipn.,cluded in a pleading.”) (Internal quotation marks omitted); 484 F.Ssuepe pa.l2sdo 955, 965 (D. Minn. 2007) (“Counterclaims, however, must appear in a pleading[.]”); 5 Charles Alan Wright, Arthur R. Miller & A. Benjamin Spencer, Federal Practice and Procedure § 1183 & n.45 (4th ed. 2021) (stand-alone counterclaim not a recognized pleading) (collecting cases). This means that “any Rule 15 amendment to a counterclaim must really be an amendment to the party's answer because RuAleF I1M5A cCo vUe.Srs. Ionncl.,y ‘pleadings’ and a stand-alosneee caolsuon Gteordcola Kimai issh na oItP a B prliedagdei n1g v u. nTdCeLr CRoumlem 7c.”'n Tech. Holdings L2t0d2. 2 WL 19332939 , at *1; , No. 15-cv-634, 2018 WL 11426956 at *11 (D. Del. Feb. 28, 2018) (applying Rule 15 and Rule 20 to amendments to a counterclaim). Similarly, Rule 12(fS),e ue nUdneirte wdh Sitcaht eVsi vvo. Vt mioloaves to strike the stand-alone counterclaim, applies only to pleadings. , No. 02-cv-9014, 2003 WL 21545108 , at *3 (E.D. Pa. July 7, 2003) (providing that a motion to strike pursuant to Rule 12(pf)le madaiyn ognly be directed to a pleading); Fed. R. Civ. P. 12(f) (“[t]he court may strike from a an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”) (emphasis added). However, case law provides that a court may strike imSeper oEpaesrh f ilvi.n gRsi gfrgoinms iTtrsu dckoicnkge, tI npcu.rsuant to its inherent authority to control its docket. , 757 F.2d 557 , 567 (3d Cir. 1985) (“A court's inherent power to manage its caseload, control its docket, and regulate the conduct of attorneys before it, provides Vivot Equip. Corp. v. Underwater Mechanix Servs., LLC 1:23-cv-0009-WAL-EAH Order Page 6 Karlo v. Pittsburgh Glass Works, LLC cases.”); , No. 10-cv-1283, 2015 WL 3966434 , at *3 (W.D. Pa. June 8, 2015) (holding that, in a court’s exercise of its inherent authority to control its [1] docket, it may strike from the record an improperly filed document) (citing cases). While UMX’s stand-alone amended counterclaim is not itself a pleading properly before the Court for consideration on either a Rule 15(a)(2) or a Rule 12(f) motion, it was clearly intended to be a pleading but was improperly filed as such.The Court concludes that, under its inherent power, exercised in order to ensure a clean record in this case where pleadings and their amendments are properly filed, UMX’s amended counterclaim— currently a procedural nullity—should be stricken, and UMX should be afforded an opportunity to properly file its amended counterclaim as an actual pleading. This conclusion is underscored by the fact that UMX did not oppose Vivot’s motion, which may be construed as it having acceded to the relief sought. Should UMX properly file its amended counterclaim as a pleading, it shall comply with thOeR pDrEoRviEsDions of Rule 15(a)(2). Accordingly, it is hereby that Vivot’s Motion to StrGikReA NDTefEeDndant’s Amended Counterclaim for Failure to Secure Leave of Court, Dkt. No. 62, is . ENTER: Dated: January 22, 2024 /s/ Emile A. Henderson III EMILE A. HENDERSON III U.S. MAGISTRATE JUDGE [1] See Hlfi p Holding, Inc. v. Rutherford Cnty., Tennessee Further, cases hold that a magistrate judge may exercise such inherent authority to strike improper pleadings. PSG , E1n9e-rcgvy-0 G7r1p4., , L2L0C2 v0. WKrLy n6s4k8i,4254, at *3-4 (M.D. Tenn. Sept. 13, 2020) (affirming magistrate judge’s authority to