UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

WILDFIRE CREDIT UNION, 

 Plaintiff, Case No. 14-cv-14359 

v. Honorable Thomas L. Ludington 

FISERV, INC., 

 Defendant. 

_______________________________________/ 

ORDER GRANTING MOTION TO AMEND COUNTERCLAIM TO JOIN PARTY AS 

COUNTER-PLAINTIFF AND DIRECTING FILING OF AMENDED COUNTERCLAIM 

 On July 23, 2015, Defendant Fiserv, Inc. filed a motion to amend its counterclaim and 

join Open Solutions, LLC as a counterclaim plaintiff. See Def.’s Mot. Amend, ECF No. 33. 

Fiserv, Inc. argues that they should be permitted to join Open Solutions as a counter-plaintiff 

because Open Solutions also has a cause of action against Plaintiff Wildfire Credit Union for 

breach of contract. Joining Open Solutions to Fiserv’s counterclaim would avoid the burdens of 

duplicative litigation. Wildfire opposes Fiserv’s motion arguing that amending its counterclaim 

would be futile because the counterclaim does not state a claim on which relief may be granted. 

See Pl.’s Resp. Br., ECF No. 35. 

Wildfire filed a five-count complaint against Fiserv, Inc. on November 13, 2014. ECF 

No. 1. Wildfire’s complaint sought a declaratory judgment in Count I and alleged in Counts IIIV that Fiserv committed various torts related to non-contractual representations that Fiserv did 

not fulfill. In Count V, Wildfire alleged breach of contract. Fiserv moved to dismiss Counts I-IV 

of Wildfire’s complaint because they were all premised on alleged non-contractual promises and 

representations by Fiserv. See Partial Mot. Dismiss, ECF No. 9. According to Fiserv, the Master 

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Agreement between the parties, which Wildfire alleges that Fiserv breached in Count V, contains 

an integration clause prohibiting Wildfire from claiming it relied on any representations or 

promises not contained in the contract. Fiserv also moved to strike the jury demand that Wildfire 

made in its complaint because the Master Agreement also contains a waiver of both parties’ right 

to have a jury decide disputes arising under the Master Agreement. See Mot. Strike Jury 

Demand, ECF No. 11. On August 10, 2015, this Court issued an Opinion and Order dismissing 

all non-contractual claims from Wildfire’s complaint and striking Wildfire’s jury demand. See

August 10, 2015 Op. & Order, ECF No. 37. 

I. 

Wildfire is a Michigan-based credit union principally located in Saginaw, Michigan. 

Fiserv is a provider of financial services technology that “provid[es] account processing systems, 

electronic payment processing, products and services, internet and mobile banking systems and 

related solutions to a wide variety of financial institutions, including credit unions.” Def.’s Mot. 

Dismiss 9, ECF No. 9. 

Open Solutions, LLC is a twice-removed wholly-owned subsidiary of Fiserv, Inc. See 

Def.’s Mot. Amend 7 n.1, ECF No. 33. Open Solutions is incorporated in Delaware and has its 

principal place of business in Connecticut. Id. 

Wildfire has alleged that Fiserv breached the Master Agreement when it did not deliver 

an operational core-processing system by the date contemplated in the Agreement. Fiserv, in 

turn, brought a counterclaim alleging Wildfire’s breach of contract seeking damages in the 

amount of the early termination fees provided for in the Master Agreement and the incorporated 

software schedules. Wildfire has argued that they do not owe Fiserv an early termination fee 

because the conditions precedent to activating the early-termination provision of the Master 

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Agreement and the incorporated software schedules were never met. In the alternative, Wildfire 

argues that the software schedule related to the DNA core processing system is an independent 

contract between Wildfire and Open Solutions, not between Wildfire and Fiserv. Thus, Wildfire 

contends that it does not owe any early termination fees to Fiserv, if indeed it owes any. 

Fiserv now seeks to join Open Solutions to its counterclaim for early termination fees 

under the Master Agreement to coordinate and streamline the adjudication of the common issues. 

II. 

 Under Federal Rule of Civil Procedure 20, persons may be joined as plaintiffs in an 

action if: “(A) they assert any right to relief 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 plaintiffs will arise in the action.” Fed. R. Civ. P. 

20. The joinder of persons as a party to a counterclaim is governed by Rule 20. See Fed. R. Civ. 

P. 13(h). “Joinder is encouraged because it avoids multiple lawsuits involving similar or identical 

issues.” Pasha v. Jones, 82 F.3d 418 (6th Cir. 1996) (citing Mosley v. General Motors Corp., 

497 F.2d 1330, 1332-33 (8th Cir. 1974)). 

III. 

 Defendant/Counter-plaintiff Fiserv, Inc. seeks to join Open Solutions, LLC, a whollyowned corporate affiliate, to its counterclaim for breach of contract against Plaintiff/Counterdefendant Wildfire. See Def.’s Mot. Amend, ECF No. 33. Fiserv has attached a proposed 

amended counterclaim to its motion that incorporates Open Solutions as a party to the 

countersuit. See id. at Ex. 1. The amended counterclaim has very few revisions, largely just 

incorporating Open Solutions into the factual allegations made in support of the breach of 

contract claim. See id. Because there are no substantive amendments to the counterclaim that 

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primarily joins an additional party, Rule 20 governs. Furthermore, because the factual and legal 

allegations are wholly identical for both Fiserv and Open Solutions and because the two seek 

relief in the alternative, joinder is appropriate. 

Wildfire argues that Rule 15, governing the amendment of pleadings, is the appropriate 

standard by which Fiserv’s motion should be analyzed. Although Fiserv technically seeks to 

amend its pleading by incorporating Open Solutions as a complainant, it is, in actuality, only 

joining an additional associated party. The more specific rules governing party joinder are found 

in Rule 20. As explained above, this reading is made explicit by Rule 13(h) which provides that 

“[r]ules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.” 

Fed. R. Civ. P. 13(h). 

IV. 

 Accordingly, it is ORDERED that Defendant Fiserv, Inc.’s Motion to Amend 

Counterclaim naming Open Solutions, LLC as a Counter-Plaintiff, ECF No. 33, is GRANTED. 

 It is further ORDERED that Counter-Plaintiffs Fiserv, Inc. and Open Solutions, LLC are 

DIRECTED to file their amended counterclaim on the Court’s docket on or before October 9, 

2015. 

Dated: September 29, 2015 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on September 29, 2015. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager 

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