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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BETH ANN COBB and RICHARD :

COBB, : Case No. 4:14-cv-0865

:

Plaintiffs, :

:

v. : (Judge Brann)

:

CHARLES NYE, WAGNER :

MILLWORK, L.L.C., WAGNER :

NINEVEH, L.L.C., WAGNER :

MILLWORK, L.L.C. d/b/a :

WAGNER LUMBER, and :

WAGNER HARDWOODS, L.L.C., :

:

Defendants. :

MEMORANDUM

June 12, 2015

Plaintiffs Beth Ann Cobb and Richard Cobb (hereinafter “Plaintiffs”) have 

filed a motion to dismiss Defendants Charles Nye, Wagner Millwork, L.L.C., 

Wagner Nineveh, L.L.C., Wagner Millwork, L.L.C. d/b/a Wagner Lumber, and 

Wagner Hardwoods, L.L.C.’s (hereinafter, “Defendants”) crossclaim against 

Plaintiff Richard Cobb for failure to state a claim upon which relief can be granted 

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants 

responded by filing a joint motion to sever the claims of Richard and Beth Ann 

Cobb pursuant to Rule 21 of the Federal Rules of Civil Procedure and a motion for 

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leave to file a third party complaint as to Richard Cobb in the severed action of 

Beth Ann Cobb.

Plaintiffs’ Complaint, filed March 28, 2014 in the Court of Common Pleas 

of Lackawanna County, Pennsylvania, alleges eight counts including various 

counts of negligence, loss of consortium and requests for punitive damages. Pl.’s 

Compl., Mar. 28, 2014, ECF No. 1 Ex. 1 (hereinafter “Pls.’ Compl.”). Defendant’s 

Answer, filed December 31, 2014, asserts a crossclaim against Richard Cobb for 

indemnification and/or contribution to the extent Defendants are found liable for 

Beth Ann Cobb’s injury. For the following reasons, both Plaintiffs’ motion to 

dismiss and Defendants’ motion to sever are granted. Moreover, Defendants’ 

motion for leave to file a third party complaint is granted. 

I. BACKGROUND

The following allegations are taken from Plaintiffs’ complaint. This case 

arises from a vehicular accident between Plaintiffs and truck-driver Charles Nye on 

or about June 10, 2013 at approximately 9:00 a.m. At that time, Plaintiff Richard 

Cobb was driving his 2012 Toyota Highlander southbound on Route 405 in Wolf 

Township, Lycoming County, Pennsylvania. Plaintiff Beth Ann Cobb was the 

front passenger in Mr. Cobb’s vehicle. Defendant Charles Nye was the operator of 

a truck owned by the remaining Defendants. As Mr. Cobb was slowing down to 

enter the center lane of traffic to make a left turn, Defendant Charles Nye, who was 

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following behind Plaintiffs, failed to similarly slow down to accommodate 

Plaintiffs and violently struck Plaintiffs’ vehicle with the left front of his truck. 

This caused Plaintiffs to be pushed across the northbound lane of traffic, up onto a 

curb, into a pole with a handicap sign, and into a parked vehicle in the parking lot 

of a McDonald’s restaurant. 

As a result of this accident, both Mr. and Mrs. Cobb have suffered and will 

continue to suffer extensive injuries, both physical and mental. Additionally, they 

have been and may be forced to undergo medical treatment costing substantial 

sums of money. Moreover, they are currently unable to go about their usual and 

daily occupations and routines, and they may be unable to do so for an indefinite 

period of time in the future.

Defendants have filed an answer to Plaintiffs’ complaint, in which they 

assert a crossclaim against Plaintiff Richard Cobb for indemnification and/or 

contribution to the extent they may be found liable for Beth Ann Cobb’s injury.

Plaintiffs now move to dismiss Defendants’ crossclaim on the basis that it is 

improper under Federal Rule of Civil Procedure 13. Defendants have responded

with a motion to sever the claims of Richard and Beth Ann Cobb and for leave to 

file a third party complaint against Richard Cobb in the severed action of Beth Ann 

Cobb.

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II. DISCUSSION

Plaintiffs have moved to dismiss Defendants’ crossclaim on the basis that it 

is procedurally improper under Rule 13(g) of the Federal Rules of Civil Procedure. 

They further argue that it must be dismissed even if this Court construes the 

crossclaim as a counterclaim, because a claim for contribution and/or 

indemnification has not matured until a judgment is entered as to Plaintiff’s 

liability. Defendant does not respond to this argument other than to request 

severance, which will be discussed below.

Rule 13(g) states, in relevant part, “A pleading may state as a crossclaim any 

claim by one party against a coparty if the claim arises out of the transaction or 

occurrence that is the subject matter of the original action or of a counterclaim . . . 

The crossclaim may include a claim that the coparty is or may be liable to the 

crossclaimant for all or part of a claim asserted in the action against the 

crossclaimant.” Fed. R. Civ. P. 13(g). As is evident by the unambiguous language 

of the rule, a crossclaim may only be asserted against a coparty; it cannot be 

asserted against an opposing party. See James William Moore, et al., MOORE’S 

FEDERAL PRACTICE ¶ 13.60. In the instant case, Defendants have asserted a 

crossclaim against Plaintiff Richard Cobb, who is an opposing party for purposes 

of Rule 13. This was a procedurally improper action. 

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Furthermore, Defendants may not bring their claim for contribution and/or 

indemnification as a counterclaim because “a defendant is not permitted to assert a 

counterclaim against a plaintiff until such claim has matured, and a claim for 

contribution or indemnity does not mature until there is a final adjudication of the 

party’s liability and the party has paid more than his pro rata share of the 

judgment.” Barnes v. Maumee Express, Inc., No. CIV.A. 01-5766, 2003 WL 

21659176, *1 (E.D.Pa. Jan. 27, 2003) (citing Stahl v. Ohio River Co., 424 F.2d 52, 

55 & n.3 (3d Cir. 1970). At this point in the litigation, Defendants’ claim for 

contribution and/or indemnification is still contingent and unripe; therefore, they 

are unable to bring this claim as a counterclaim. 

Moreover, the only other way in which Defendants could bring their 

indemnification and/or contribution claim in this action would be through Rule 

14(a)’s impleader procedure. That rule states, in relevant part, “A defendant party 

may, as third-party plaintiff, serve a summons and complaint on a nonparty who is 

or may be liable to it for all or part of the claim against it.” Once again, the 

express language of the rule precludes the Defendants in this action from asserting 

their indemnification and/or contribution claim under Rule 14(a) against Richard 

Cobb because he is already a party to the litigation, and a defendant may only 

implead a nonparty. Consequently, Plaintiffs’ motion to dismiss Defendants’ 

counterclaim will be granted.

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However, this leaves Defendants in an impossible position, whereby they 

would have to wait until a final determination of liability in order to recover on 

their claim for indemnification and/or contribution, which would necessarily entail 

the initiation of an additional lawsuit. See Henz v. Superior Trucking Co., 96 

F.R.D. 219, 220-221 (M.D.Pa. 1982) (Rambo, J.) (“Thus the combined effect of 

Rule 14(a) and Rule 13 is to prevent the adjudication of Grove Manufacturing’s 

claim for contribution in conjunction with the main case as it is presently 

constituted.”). Consequently, Defendants have requested that this Court sever the 

claims of Plaintiff Richard Cobb and Plaintiff Beth Ann Cobb pursuant to Federal 

Rule of Civil Procedure 21 to enable them to file a third party complaint against 

Richard Cobb for indemnification and/or contribution in the action of Beth Ann 

Cobb.

That rule states, “On motion or on its own, the court may at any time, on just 

terms, add or drop a party. The court may also sever any claim against a party.” 

Fed.R.Civ.P. 21. “[I]t is actually well–established in numerous cases that a 

defendant in precisely these fairly common circumstances may sever the claims of 

the two plaintiffs pursuant to Fed.R.Civ.P. 21 and then join the plaintiff, against 

whom a claim for contribution or indemnity is sought to be asserted, as a thirdparty defendant pursuant to Fed.R.Civ.P. 14”. See Barnes, 2003 WL 21659176 at 

*1; see also Sporia v. Pennsylvania Greyhound Lines, 143 F.2d 105, 107 (3d Cir. 

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1944) (“It has already been recognized that where plaintiffs having separate causes 

of action join as co-plaintiffs, the defendant may obtain a severance of the claim of 

one of the plaintiffs in order to join him thereafter as an additional defendant as to 

the claim of the remaining plaintiffs. Such a severance is proper in order to protect 

the defendant from being deprived of the procedural right of joinder to which he 

would be entitled had the severed plaintiff not joined as a co-plaintiff. Otherwise, 

the right to join him as an additional defendant would depend upon the chance 

circumstance that he had not joined as a co-plaintiff.”); Stahl, 424 F.2d at 56 

(affirming the continued viability of Sporia); Henz, 96 F.R.D. at 221 (granting a 

motion to sever in a case brought by a driver and his passenger for injuries 

sustained during an automobile accident).

Plaintiffs have pointed to no case law which would dissuade this Court from 

granting the relief that Defendants now seek. They argue, rather, that the Court 

should not sever their claims because their causes of action involve the exact same 

facts, witnesses, and evidence. While it may be true that there may be a good deal 

of overlap between the two actions if they were severed, the United States Court of 

Appeals for the Third Circuit has already considered this argument in very similar 

circumstances and concluded that the claims of a driver and a passenger in an 

automobile accident are distinct and that severance is therefore permissible and in 

some cases desirable. See Sporia, 143 F.2d at 106 (“Equally clear is it that the 

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claim of Sporia and the claim of Kosana here are quite separate and distinct, each 

from the other. The judgments obtained, if the plaintiffs should prevail, would 

necessarily be different, depending upon the injuries sustained by each. And it 

might well be, if both Sporia and Greyhound are found to be negligent, that 

judgment might go against Sporia (the driver) and still be in favor of Kosana (the 

guest).”). Specifically, the Third Circuit in that case concluded that “[a] severance 

works no injustice upon any of these parties; all the so-called equities favor it.” Id. 

at 107. Accordingly, this Court will follow the line of cases which have allowed 

severance to accommodate the current procedural irregularity and will grant 

Defendants’ motion to sever.

Finally, Local Rule 14.1 provides that “[a] motion by a defendant for leave 

to join a third-party defendant under Fed.R.Civ.P. 14(a) shall be made within three 

(3) months after an order has been entered setting the case for trial, or within six 

(6) months after the date of service of the moving defendant’s answer to the 

complaint, whichever shall first occur.” Local Rule 14.1. In the instant matter, 

Defendants filed their answer to Plaintiffs’ complaint on December 31, 2014, and 

they filed their request to file a third-party complaint approximately one month 

later, on January 23, 2015. Because Defendants were well within the time frame 

provided by Local Rule 14.1, this Court will grant Defendants leave to file a third 

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party complaint against Plaintiff Richard Cobb in the severed action of Beth Ann 

Cobb.

III. CONCLUSION

Based on the foregoing reasoning, both Plaintiffs’ motion to dismiss and 

Defendants’ motion to sever are granted. Moreover, Defendants’ motion for leave 

to file a third party complaint is granted. An appropriate Order will follow.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

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