IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DANNY HERMAN TRUCKING, INC., 

et al.,

Plaintiffs,

v. Civil Action 2:18-cv-644

Magistrate Judge Jolson

BROOKS LILES BOULWARE,

Defendant.

OPINION AND ORDER

This matter is before the Court on Plaintiffs’ Unopposed Motion to Join Additional 

Necessary and Indispensable Parties and Compulsory Counterclaims to Afford Complete Relief 

Among the Interested Parties (Doc. 33). For the reasons that follow, the Unopposed Motion is 

GRANTED in part and DENIED in part.

I. BACKGROUND

Plaintiffs are Danny Herman Trucking, Inc. (“DH Trucking”), DHT Leasing, LLC (“DHT 

Leasing”), and Cherokee Insurance Company (“Cherokee”) (collectively, “Plaintiffs”). (Doc. 31, 

¶¶ 5–7). Plaintiff DH Trucking is a trucking company, and Plaintiff DHT Leasing is an equipment 

leasing company. (Id., ¶¶ 5–6). Plaintiff Cherokee “is an insurance underwriting company . . . 

that has contractual privity with DH Trucking and DHT Leasing as an insurance underwriter 

providing commercial insurance coverage to the same.” (Id., ¶ 7). 

On May 17, 2018, Defendant allegedly crashed his SUV into an 18-wheel semi-tractor and 

trailer that was operated by Plaintiff DH Trucking’s employee, Kenneth Millender II, and owned 

by Plaintiff DHT Leasing. (Id., ¶¶ 5–11). As a result of the accident, Millender was injured, and 

Plaintiff DHT Leasing’s semi-tractor and trailer sustained significant damages. (Id., ¶¶ 12–20). 
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Further, a number of third parties were riding in the car with Defendant at the time of the accident: 

Maxine Boulware, Defendant’s wife; William O. Brame; and Dorothy A. Brame. (See generally 

Doc. 33-1). Maxine Boulware and the Brames died as a result of their injuries. (Id.).

Plaintiffs filed their initial Complaint (Doc. 1) on July 2, 2018. In its Opinion and Order 

dated December 21, 2018, the Court joined Plaintiff Cherokee as a party. (Doc. 17). Although 

initially a subrogee, subsequent to that Opinion and Order, Plaintiff Cherokee allegedly assigned 

its rights of subrogation to Plaintiff DH Trucking. (Doc. 31, ¶ 7). In their Second Amended 

Complaint (Doc. 30), Plaintiffs bring a negligence claim against Defendant and request damages 

for property damage, lost opportunity costs, and economic loss related to loss of services. (Id., 

¶¶ 12–20). 

Plaintiffs filed the instant Unopposed Motion on March 29, 2019. The deadline for further 

briefing has passed, and the Motion is now ripe for resolution.

II. DISCUSSION

A. Compulsory Counterclaims

Plaintiffs argue that Defendant “should be required to raise a counterclaim against 

Plaintiffs in this instant action, to the extent that he wishes to bring one at all.” (Doc 33 at 6). In 

their view, “Defendant’s potential personal injury and property damage claims arise out of the 

same transaction and occurrence, and would necessarily require the same factual, legal, and 

evidentiary questions at issue in the instant action.” (Id.). They, therefore, request that the Court 

“enter an order compelling Defendant . . . to raise any counterclaim that he may have in relation 

to this matter or waive and be forever barred from doing so in the future.” (Id. at 7).

Rule 13 does not provide a mechanism to compel Defendant to file counterclaims in this 

action. Rather, Defendant is free to bring any potential claims against Plaintiffs consistent with 
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the Federal Rules of Civil Procedure and Sixth Circuit precedent. If Defendant chooses to bring 

such claims, Plaintiffs are free to challenge those claims pursuant to the Federal Rules of Civil 

Procedure—including Rule 13—and Sixth Circuit precedent. But the choice to bring such claims 

is Defendant’s, not the Court’s. Plaintiffs’ Unopposed Motion is, therefore, DENIED with respect 

to this issue.

B. Compulsory Joinder

Relying on Rule 19, Plaintiffs seek to join Kenneth Millender, Maxine Boulware, William 

O. Brame, and Dorothy A. Brame in this action.

Rule 19(a) provides the standard for whether joinder is proper:

(1) Required Party. A person who is subject to service of process and whose joinder 

will not deprive the court of subject-matter jurisdiction must be joined as a party 

if:

(A) in that person’s absence, the court cannot accord complete relief among 

existing parties; or

(B) that person claims an interest relating to the subject of the action and is 

so situated that disposing of the action in the person’s absence may:

(i) as a practical matter impair or impede the person’s ability to protect 

the interest; or

(ii) leave an existing party subject to a substantial risk of incurring 

double, multiple, or otherwise inconsistent obligations because of the 

interest.

Fed. R. Civ. P. 19(a)(1). 

“Assessing whether joinder is proper under Rule 19 is a three-step process.” Glancy v. 

Taubman Ctrs., Inc., 373 F.3d 656, 666 (6th Cir. 2004) (citation omitted). “First, the court must 

determine whether the person or entity is a necessary party under Rule 19(a).” Id. (citing Temple 

v. Synthes Corp., 498 U.S. 5, 8 (1990)). “[A] party need only meet one of the criteria set forth in 

Rule 19(a) to pass the first step of the test[.]” Brinager v. Ronk Elec. Indust., Inc., No. 2:06-cv-
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441, 2007 WL 709337, at *2 (S.D. Ohio Mar. 5, 2007) (citing Soberay Mach. & Equip. Co. v. 

MRF Ltd., Inc., 181 F.3d 759, 764 (6th Cir. 1999)). “Second, if the person or entity is a necessary 

party, the court must then decide if joinder of that person or entity will deprive the court of subject 

matter jurisdiction.” Glancy, 373 F.3d at 666 (citation omitted). “Third, if joinder is not feasible 

because it will eliminate the court’s ability to hear the case, the court must analyze the Rule 19(b) 

factors to determine whether the court should ‘in equity and good conscience’ dismiss the case 

because the absentee is indispensable.” Id. (citation omitted).

i. Kenneth Millender

Plaintiffs maintain that Millender is a necessary party because he “has pending claims 

against the automobile insurance carrier for Defendant . . . , for his personal injuries resulting from 

the vehicle collision on May 17, 2018” and because Defendant “has a pending compulsory 

counterclaim” against him “that may need to be defended by” Plaintiff Cherokee. (Doc. 33 at 8). 

The parties agree that Millender should be joined in this case, and, significantly, Millender’s 

counsel “does not object to being made part of this action in order to afford complete relief for his 

client’s personal injury claims and subrogation of Workers Compensation payments against 

Defendant.” (Id.). 

First, there is no dispute that Millender has an interest in the subject of this action. Like 

Millender, Plaintiffs allege that Defendant is responsible for their injuries resulting from the 

accident. Millender’s personal injury claim turns on Defendant’s alleged negligence, just like 

Plaintiff’s claims here.

Second, as a practical matter, a ruling in favor of Defendant may impede or impair 

Millender’s claims against Defendant. Such a ruling could create “adverse persuasive precedent,” 

and “[m]any courts considering this risk have found that it amounts, as a practical matter, to 
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impairing the absent party’s interest.” Williams-Sonoma Direct, Inc. v. Arhaus, LLC, 304 F.R.D. 

520, 532 (W.D. Tenn. 2015) (collecting cases). Because it is not clear that Plaintiffs will 

adequately represent Millender’s interests, Millender is a necessary party. Cf. id. at 533 (“If an 

absent party is adequately represented, then there is no practical prejudice to the absent party”). 

Next, the Court must consider whether joinder of Millender is feasible. Joinder is not 

feasible if it would destroy diversity jurisdiction. Glancy, 373 F.3d at 666. Diversity jurisdiction 

requires “complete diversity such that no plaintiff is a citizen of the same state as any defendant.” 

V & M Star, LP v. Centimark Corp., 596 F.3d 354, 355 (6th Cir. 2010) (citing Lincoln Prop. Co. 

v. Roche, 546 U.S. 81, 89 (2005)).

Here, Plaintiffs represent that Millender is a citizen of California. (Doc. 33 at 2 (citing 

Doc. 33-1)). Plaintiffs DH Trucking, DHT Leasing, and Cherokee are citizens of California, 

Tennessee, and Michigan respectively. (Doc. 30, ¶¶ 5–7). Defendant is a citizen of North 

Carolina. (Id., ¶ 8). As a result, the joinder of Millender would not destroy complete jurisdiction 

in this case, see V & M Star, 596 F.3d at 355, and joinder of Millender is therefore feasible. 

Because the Court finds joinder feasible, an analysis of the Rule 19(b) factors is not 

necessary. Only where the Court finds that joinder is not feasible, must the court analyze the Rule 

19(b) factors to determine whether the party is indispensable and, thus, whether the action must be 

dismissed. Liberty Ins. Corp. v. Advanced Servs. Heating & Cooling, Inc., No. 2:13-CV-241, 2013 

WL 5492531, at *2 (S.D. Ohio Oct. 1, 2013).

In sum, Millender is a necessary party who is subject to the jurisdiction of the Court, and 

he can be made a party without depriving the court of jurisdiction of the parties before it. See Fed. 

R. Civ. P. 19(a)(1)(B). His joinder is therefore appropriate here. See id.

Plaintiffs’ Unopposed Motion is, therefore, granted with respect to this issue.
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ii. Maxine Boulware, William O. Brame, and Dorothy A. Brame

Plaintiffs assert that the Court should order the joinders of Maxine Boulware and the 

Brames because (1) they each have potential wrongful death claims against the parties in this 

action; and (2) “[a]dministration of the policy benefits that are potentially payable to the two 

survivors and two decedents to this civil action cannot be made without a determination of liability, 

via comparative negligence principles, and a division of the applicable policy benefits among the 

economic claims of the various interested parties.” (Doc. 33 at 9).

Unlike Millender, Maxine Boulware and the Brames have expressed no interest in joining 

this action. In fact, it is unclear to the Court whether these parties have any interest in ever pursuing 

claims related to the accident. Rule 19 “should be employed to promote the full adjudication of 

disputes with a minimum of litigation effort.” 7 Charles Alan Wright, Arthur R. Miller & Mary 

Kay Kane, Federal Practice & Procedure Civil § 1602 (3d ed. 2001). As it stands, Maxine 

Boulware and the Brames, in contrast to Millender, have no dispute with any of the parties in this 

action. Consequently, it is not obvious to the Court that Rule 19 should be used to force them to 

join.

Further, Plaintiffs do not cite any authority in support of their argument that Maxine 

Boulware and the Brames should be joined in this action given their lack of interest in litigating. 

Based on the information before the Court, Plaintiffs have failed to meet their burden to join those 

individuals. Williams-Sonoma Direct, 304 F.R.D. at 530 (recognizing that burden is on the moving 

party to demonstrate that third party is necessary under Rule 19(a)). Plaintiffs’ Unopposed Motion 

is, therefore, denied with respect to this issue.
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III. CONCLUSION

For the foregoing reasons, Plaintiffs’ Unopposed Motion (Doc. 33) is GRANTED in part 

and DENIED in part. Kenneth Millender II will be joined as a party in this action.

IT IS SO ORDERED.

Date: May 10, 2019 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE