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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ILLINOIS 

HOWARD H. MORRICAL, 

Plaintiff, 

v. 

ATLAS COPCO COMPRESSORS, L.L.C., et 

al., 

Defendants. 

 

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Case No. 3:14-cv-52-DGW-SCW

ORDER 

WILKERSON, Magistrate Judge: 

Now pending before the Court is a Rule 5(c)(1)(B) Motion filed by Defendant Union 

Carbide Corporation, on March 25, 2014 (Doc. 58). The Motion is GRANTED. 

Federal Rule of Civil Procedure 5(c)(1)(B) 

 Pursuant to the Hearing held on June 13, 2014, certain Defendants have submitted a 

proposed order, and the Standing Orders of the state courts that handle asbestos litigation in this 

District, related to the “institution of denials” allowed by the Federal Rules. Rule 5(c)(1) 

provides: 

In General. If an action involves an unusually large number of defendants, the 

court may, on motion or on its own, order that: 

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(B) any crossclaim, counterclaim, avoidance, or affirmative defense in those 

pleadings and replies to them will be treated as denied or avoided by all other 

parties . . . . 

This seldom used Rule only applies to pleadings and does not excuse the filing of papers with the 

court or service upon Plaintiff. This case, as in other cases that raise claims related to asbestos 

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exposure, generally is filed against dozens of Defendants who tend to file similar pleadings that 

include identical affirmative defenses, crossclaims, and counterclaims. Defendants also tend to 

file similar responses to these claims. It is not until discovery has begun that a vast majority of 

Defendants are dismissed, some with prejudice. It would accordingly be economical for the 

Court to deem crossclaims, counterclaims, avoidance, and affirmative defenses as being denied 

and avoided as to all other Defendants. Defendants’ Motion seeking such relief is GRANTED

(Doc. 352, 452). 

 Attached to this Order is a proposed Order/stipulation generated by certain defendants, in a 

similar case pending before the Court, Mohler v. Air & Liquid, et al., 3:13-cv-1221-DGW-SCW, 

that is ADOPTED herein as if fully set forth except with respect to the following paragraphs: 

4. That all crossclaims are deemed severed from Plaintiff’s action for both 

discovery and separate trial, pursuant to Federal Rules of Civil Procedure 21, 13(i), 

and 42(b); 

5. That Defendants reserve the right to file additional crossclaims and 

affirmative defenses against one another no later than 60 days prior to trial in the 

severed action; 

6. That upon Plaintiff’s voluntary dismissal of any Defendant, or the Court’s 

dismissal of all of Plaintiff’s claims against any Defendant, the remaining 

Defendants’ crossclaims are deemed dismissed without prejudice as to the 

dismissed Defendant pursuant to Federal Rule of Civil Procedure 41(c); if, 

however, a remaining Defendant wishes to maintain its crossclaim against the 

dismissed Defendant, it must assert its crossclaims within 21 days of the dismissal. 

It does not appear to be efficient to sever crossclaims into a new action. As noted above, 

Defendants each will essentially be asserting the same crossclaims, counterclaims, and/or 

affirmative defenses. The list of Defendants also will likely be whittled down to only a few 

Defendants against whom this case will proceed to trial. Therefore, it does not appear efficient to 

sever the crossclaims of all Defendants into a wholly new lawsuit when it is likely that most of 

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those claims will be dismissed by operation of Orders in this suit. It also appears inefficient to 

compel Defendants to engage in discovery at this stage of the proceedings on these crossclaims 

both because a majority will not go to trial and because most of these crossclaims appear to raise 

legal, as oppose to factual, issues. Therefore, the Court STAYS discovery on the crossclaims. 

This matter currently has December 30, 2014 deadline for the amendment of pleadings and a 

discovery deadline of July 15, 2015. This matter is set for a telephonic status conference on 

February 25, 2015 at 2:00 p.m. Plaintiff shall initiate the conference call by conferencing in all 

parties and then calling the Court at 618-482-9004. At that conference, the parties should be 

prepared the discuss discovery on the crossclaims and the potential for separate dispositive 

motions on those claims. 

 Any additional Defendant, who has entered an appearance, who wishes to join in the 

attached stipulation must do so by September 5, 2014 by filing a Notice with the Court. Any 

other Defendant who wishes to join in the attached stipulation must file a Notice with the Court on 

the date that their Answer is due. As noted in the Scheduling Order (Doc. 700), dismissal of a 

party automatically results in dismissal of the cross/counter claims made by or against that party 

unless an objection is filed within 5 days of the motion to dismiss. 

IT IS SO ORDERED. 

DATED: August 21, 2014 

DONALD G. WILKERSON 

United States Magistrate Judge 

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