United States District Court, D. Minnesota
Delta Industrial Services, Inc. d/b/a Delta ModTech, Plaintiff,
Kollmorgen Corporation, Defendant.
E. Rau United States Magistrate Judge
Industrial Services, Inc. brought suit against Kaman
Automation, Inc. and Kollmorgen Corporation. (ECF No. 1).
Kollmorgen answered the complaint, (ECF No. 19), and Kaman
moved to dismiss, (ECF No. 21). The following day, Delta
voluntarily dismissed Kaman from this action without
prejudice pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i). (ECF No.
Kollmorgen seeks to add Kaman as a third-party defendant.
(ECF No. 33). Through a stipulation, Delta has consented to
Kollmorgen's filing of a third-party complaint. (ECF No.
33). Kaman has moved to strike the stipulation or deny leave
to Kollmorgen to file its third-party complaint. (ECF No.
35). Kaman argues that, pursuant to Rule 14(a)(1),
Kollmorgen's third-party complaint is untimely and
requires a motion, not a stipulation.
“may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f). The stipulation submitted
by Delta and Kollmorgen is not a pleading.
Fed.R.Civ.P. 8. Thus, as courts in this District hold,
“there is no such thing as a ‘motion to
strike'” aimed at a non-pleading. Carlson Mktg.
Grp. v. Royal Indemnity Co., No. No. 04-cv-3368
(PJS/JJG), 2006 WL 2917173, at *2 (D. Minn. Oct. 11, 2006)
(Schiltz, J.) (rejecting two motions to strike aimed at
affidavits filed in connection with a summary judgment
motion); see also Smith v. United HealthCare Servs.,
Inc., 2003 WL 22047861, at *3 n.7 (D. Minn. Aug. 28,
2003) (Montgomery, J.); VanDanacker v. Main Motor Sales
Co., 109 F.Supp.2d 1045, 1047 (D. Minn. 2000) (Doty,
J.). Further, under Rule 14(a)(4), “[a]ny
party may move to strike the third-party claim . . .
.” (emphasis added). But Kaman is a non-party
bystander, so it cannot invoke Rule 14(a)(4). And the
third-party claim does not yet exist for the simple
reason that it has not been filed. Therefore, there is no
basis for Kaman's motion to strike.
this Court were to consider Kaman's Rule 14 arguments,
they lack merit. Rule 14 requires a prospective third-party
plaintiff to obtain the court's leave before filing a
third-party complaint if more than 14 days have passed after
serving its original answer. Fed.R.Civ.P.
14(a)(1). As Kaman's own briefing points out,
this Court has “considerable discretion in deciding
whether to permit a third-party complaint.” Too,
Inc. v. Kohl's Dept. Stores, Inc., 213 F.R.D. 138,
140 (S.D.N.Y. 2003); see also Agrashell, Inc. v. Hammons
Prods. Co., 352 F.2d 443, 448 (8th Cir. 1965)
(“Where leave to bring in additional parties is
requested, discretion rests in the trial court to determine
whether relief should be granted.”). “The
criteria for granting a motion to amend under Rule 15 are
useful in assessing a motion to add a third-party
defendant.” Am. Home Assur. Co. v. Greater Omaha
Packing Co., Inc., 2013 WL 1502238, at *1 (D. Neb. Apr.
11, 2013). Under Rule 15, the “court should freely give
leave when justice so requires.” Fed.R.Civ.P. 15(a)(2).
However, “[a] denial of leave to amend may be justified
by undue delay, bad faith on the part of the moving party,
futility of the amendment or unfair prejudice to the opposing
party.” Amrine v. Brooks, 522 F.3d 823, 833
(8th Cir. 2008).
there is no undue delay. Kollmorgen seeks to bring in Kaman
as a third-party plaintiff a mere five weeks after a
scheduling order was issued. This litigation is still at its
inception and adding Kaman will not appreciably delay
proceedings. While it appears Kollmorgen could have
moved earlier to join Kaman, Kollmorgen's request is
timely under the scheduling order. There appears to be no bad
faith motive in bringing this third-party complaint where it
details a contractual relationship between Kaman and Delta
that used Kollmorgen products modified by Kaman, thus
rendering Kaman liable for damages, not Kollmorgen. There is
no futility apparent on the face of the third-party
complaint. Essentially, Kollmorgen is asserting Kaman is the
link between it and Delta. Thus, contrary to Kaman's
arguments, this does not appear to be a separate dispute from
the claims asserted by Delta. Rather, all the claims appear
intertwined with one another.Finally, this Court finds no
unfair prejudice. As noted, Delta, Kollmorgen, and Kaman have
interrelated relationships. It is not prejudicial for those
relationships to be adjudicated in a single proceeding. While
Kaman asserts it will invariably move to compel arbitration,
it is not unfairly prejudicial to allow a third-party
complaint to be filed merely on the grounds that the dispute
could be sent to arbitration.
this Court finds there is no basis for Kaman's motion to
strike. Even if this Court were to consider the underlying
arguments, they are unpersuasive. Therefore, this Court
APPROVES the Stipulation to Add Third-Party
Defendant, (ECF No. 33), and DENIES
Non-Party Kaman Automation, Incorporated's Motion to
Strike Defendant Kollmorgen's Stipulation or,
Alternatively, to Deny Leave to File, (ECF No. 35). Defendant
Kollmorgen Corporation shall file its third-party complaint,
in substantially the same form as attached to the
stipulation, (ECF No. 33), within 7 days.
 The brunt of Kaman's argument is
that by filing a stipulation, rather than a
motion, Kollmorgen and Delta have deprived Kaman of
the opportunity to oppose the motion. Kaman has not moved to
intervene and remains a non-party to this litigation. Thus,
this Court questions whether Kaman has any basis whatsoever
upon which it can challenge either the stipulation as filed
or the motion it requests to be filed. But see Williams
v. Saxon Mortg. Servs., Inc., 2007 WL 2828752, at *1
(S.D. Ala. Sept. 27, 2007) (permitting a non-party to
challenge a Rule 14 motion where the Rule 14 motion was filed
in response to motions to dismiss and for judgment on the
pleadings and was interrelated with those dispositive
motions). It would seem that Kaman cannot be deprived of an
opportunity it is not afforded.
While Kaman asserts it is not “elevat[ing] form
over substance” in demanding a motion rather
than a stipulation, (ECF No. 36, at 5), this Court
finds the opposite. The stipulation filed by Kollmorgen and
Delta still requires the Court's approval before any
action may be taken. Thus, that Kollmorgen's request to
file a third-party complaint came as a stipulation rather
than a motion is of no moment where it did not deprive this
Court of the ultimate decision in whether to grant leave
before the third-party complaint is filed.
 Kaman asserts it may move to compel
arbitration should the third-party complaint be filed. (ECF
No. 36, at 7-8). This Court finds the hypothetical delays to
 Kaman also asserts that its motion to
dismiss shows how the third-party complaint is futile.
Kaman's reliance upon its motion to dismiss is misplaced.
Kaman was dismissed voluntarily by Delta. Imputing dismissal
by Delta was caused by the arguments found in the motion to
dismiss is speculative. It is even more speculative to
believe that arguments pertaining to Delta render
the third-party complaint by Kollmorgen futile.
Because the motion to dismiss was never adjudicated, it
carries no weight whatsoever.
 Kaman also asserts unfair prejudice
because Delta might revive its claims against Kaman.
Kaman's argument is unavailing where that possibility
always existed because Delta's claims ...