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Tanners Creek Development, LLC v. Toms

United States District Court, S.D. Indiana, New Albany Division

January 29, 2019

TANNERS CREEK DEVELOPMENT, LLC, ENVIROANALYTICS GROUP, LLC, INDUSTRIAL DEMOLITION, LLC, COMMERCIAL DEVELOPMENT CO., INC., Plaintiffs,
v.
ARTHUR M. TOMS, DORI B. SCHWEITZER, JAMES B. TOMS, III, ANDIS, LLC, ATRC, LLC, STANCO EQUIPMENT CO., INC., SANDOR ENTERPRISES, LLC, Defendants. ANDIS, LLC, Counter Claimant,
v.
ENVIROANALYTICS GROUP, LLC, INDUSTRIAL DEMOLITION, LLC, Counter Defendants. ANDIS, LLC, Third Party Plaintiff,
v.
JAINES, LLC, Third Party Defendant.

          ORDER TO SHOW CAUSE WHY THIRD-PARTY COMPLAINT SHOULD NOT BE DISMISSED

          SARAH EVANS BARKER, JUDGE

         Plaintiffs (whom we will collectively refer to as EnviroAnalytics Group, LLC, or “EAG”) sued Defendants (whom we will collectively refer to as Andis, LLC, or “Andis”) for fraud, breach of contract, and other wrongs in connection with Andis's demolition of a derelict power plant owned by EAG in Lawrenceburg, Indiana. Dkt. 1. Andis answered the complaint and counterclaimed for breach of contract and conversion. Dkt. 53. Andis also included what it styled as a third-party complaint against Jaines, LLC (“Jaines”). Id. Because this latter pleading suffers from several deficiencies, which we outline below, Andis must show cause why it should not be dismissed.

         Background

         Andis's counterclaim and third-party complaint are presented under a single heading. Id. at 60. This mixed pleading alleges, under Count I, breach by EAG and Jaines of three different contracts; under Count II, conversion by EAG; and under Count III, treble damages against EAG as allowed by Indiana to victims of certain crimes. See Ind. Code § 34-24-3-1.

         Under Count I, the counterclaim alleges EAG's breach of the contract governing the demolition of the Lawrenceburg facility, apparently the mirror image of EAG's original breach-of-contract claim against Andis. A copy of the contract, executed by Andis and EAG, is attached to the counterclaim. Dkt. 53 Ex. A (“the Lawrenceburg contract”).

         Also under Count I, the third-party complaint alleges that Andis and Jaines entered into a contract for the demolition of a facility in Janesville, Wisconsin, id. at 62 ¶ 14, under which Andis performed, but Jaines allegedly did not, thus breaching the contract. Id. ¶¶ 18-19. A copy of the contract, executed by Andis and Jaines, is attached to the third-party complaint. Dkt. 53 Ex. B (“the Janesville contract”).

         Finally under Count I, the pleading alleges that “Andis and EAG” entered into a contract for the demolition of a facility in Lockbourne, Ohio, Dkt. 53, at 62 ¶ 16, under which “Jaines was to pay for th[e] labor at rates specified . . . .” Id. ¶ 17 (emphasis added). A copy of this contract is attached as Exhibit C, executed only by Andis and EAG. Dkt. 53 Ex. C (“the Lockbourne contract”). Jaines is nowhere mentioned. Id. Accordingly, we assume that Jaines was not in fact a party to the Lockbourne contract, and that Jaines's inclusion in Paragraph 17 of the pleading is a scrivener's error, for a complaint's allegations generally yield to its attachments in cases of conflict. Forrest v. Univ'l Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir. 2007).

         In sum, the only claim against Jaines presented by Andis's third-party complaint is one for breach of the Janesville contract. That contract on its face appears entirely unrelated to both the Lawrenceburg and the Lockbourne contracts. The point bears emphasis: no allegation in the third-party complaint against Jaines is connected to the events underlying EAG's original lawsuit.

         EAG and Jaines filed a joint answer to Andis's pleading, Dkt. 61, signed by Attorney Caroline L. Pieroni of Dinsmore & Shohl LLP, Louisville, Kentucky. EAG and Jaines thus appear to be jointly represented by that firm. The qualifying phrase “appear to be” is warranted because, despite an answer having been filed on Jaines's behalf, no attorney has filed an appearance on its behalf. This is contrary to this Court's applicable rules. S.D. Ind. L.R. 83-7(a).

         Analysis

         Andis's third-party complaint raises the triple specters of lack of subject-matter jurisdiction, improper impleader, and futility of joinder.

         I. Subject-Matter Jurisdiction

         Andis's mixed pleading purports to invoke our diversity jurisdiction under 28 U.S.C. § 1332. The effectiveness of this invocation here is doubtful. Complete diversity of citizenship is apparently satisfied. But, in addition to failing to plead that the amount in controversy exceeds $75, 000 “exclusive of interest and costs, ” contra 28 U.S.C. § 1332(a); Powers v. Fultz, 404 F.2d 50, 52 (7th Cir. 1968), the mixed pleading's global allegation that “the amount in controversy exceeds $75, 000[, ]” Dkt. 53, at 61 ¶ 10, disregards the long-settled anti-aggregation rule.

In diversity cases, when there are two or more defendants, plaintiff may aggregate the amount against the defendants to satisfy the amount in controversy requirement only if the defendants are jointly liable; however, if the defendants are severally liable, plaintiff must satisfy the ...

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