## Facts

- On September 25, 1997, a vehicle driven by Dave Harrison, Jr. collided with a tractor-trailer operated for M.S. Carriers, Inc.
- Mary Gilbert and Cynthia Daniels were passengers in Harrison’s vehicle at the time of the collision.
- Harrison, Gilbert, and Daniels filed suit together as plaintiffs in Louisiana state court on September 21, 1998, seeking damages for injuries allegedly caused by the accident and naming M.S. Carriers and related parties as defendants.
- Defendants removed the action to the United States District Court for the Eastern District of Louisiana on October 28, 1998 based on diversity jurisdiction.
- After removal, Gilbert and Daniels sought leave to amend the pleading to assert negligence claims against their co-plaintiff Harrison by adding him as a defendant, and to add Harrison’s insurer (Guaranty National Insurance Company).
- Harrison did not have diverse citizenship from Gilbert and Daniels, raising a jurisdictional concern if he were added as a defendant.
- A magistrate judge denied the motion to amend without prejudice, stating that Gilbert and Daniels could pursue a cross-claim against Harrison and could proceed separately as to the insurer.
- Gilbert and Daniels sought review of the magistrate judge’s order by the district judge.

## Issues

1. In a removed diversity case, may passenger plaintiffs amend the complaint to re-designate their co-plaintiff driver as a negligence defendant, or must the claim be asserted against him as a Rule 13(g) cross-claim?
2. On review of a magistrate judge’s non-dispositive pretrial order, did the magistrate judge clearly err or act contrary to law in denying leave to amend on that ground?

## Decision

- The district court affirmed the magistrate judge’s order denying the motion to amend.
- The court concluded that, because Harrison was already a co-party aligned as a plaintiff, Gilbert and Daniels’ claim against him arising out of the same accident belonged as a cross-claim under Rule 13(g), not as a Rule 15 amendment converting him into a defendant.
- The court left Gilbert and Daniels to pursue their claim against Harrison through the proper procedural device, rather than altering party alignment in the complaint after removal.

## Legal Principles

- A claim by one party against a co-party arising out of the same transaction or occurrence is properly brought as a cross-claim under Federal Rule of Civil Procedure 13(g).
- Federal Rule of Civil Procedure 15 does not provide a proper method to convert an existing co-plaintiff into a defendant when the claim is, in substance, a claim against a co-party that fits Rule 13(g).
- A district judge reviewing a magistrate judge’s order on a non-dispositive matter applies the “clearly erroneous or contrary to law” standard under Federal Rule of Civil Procedure 72(a) and 28 U.S.C. § 636(b)(1)(A).
- In a case removed solely on diversity, attempts to reconfigure party alignment to add a nondiverse party as a defendant are closely examined, and courts may require use of standard pleading devices (such as cross-claims) that do not recast alignment.

## Conclusion

Harrison held that, after removal on diversity, passenger plaintiffs could not amend the complaint to add their co-plaintiff driver as a negligence defendant; instead, they had to pursue the claim against him as a Rule 13(g) cross-claim, and the district court affirmed the magistrate judge’s denial of leave to amend under the applicable review standard.


Harrison v. M.S. Carriers, Inc., 1999 WL 195539 (1999)