No. 95 C 6340 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

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1 DONNA BALACHOWSKI, Plaintiff, v. PAUL BOIDY, Defendant. No. 95 C 6340 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION April 22, 1999, Decided April 26, 1999, Docketed For DONNA BALACHOWSKI, plaintiff: Joseph R. Butler, John Marshall Fair Housing Legal Clinic, Chicago, IL. For DONNA BALACHOWSKI, plaintiff: E Daniel Hanson, II, Harrison Law Offices, P.C., Woodstock, IL. For DONNA BALACHOWSKI, plaintiff: Lewis W. Powell, III, Law Offices of Lewis W. Powell, III, Chicago, IL. For DONNA BALACHOWSKI, plaintiff: Michael R. Baggot, John Cosenza, Seth Lamden, Jennifer O'Reilly, John Marshall Fair Housing Clinic, Chicago, IL. For DONNA BALACHOWSKI, plaintiff: Edward Arthur Voci, Law Offices of Edward T. Stein, Chicago, IL. For DONNA BALACHOWSKI, plaintiff: F. Willis Caruso, Lewis W. Powell, III, Chicago, IL. For PAUL BOIDY, defendant: Jeffrey Kenneth Gutman, Heldrich, Gutman & Associates, Chicago, IL.

2 PAUL BOIDY, defendant, Pro se, Glenview, IL. For PAUL BOIDY, defendant: William Stevens, Kopka, Landau and Pinkus, Crown Point, IN. Nan R. Nolan, United States Magistrate Judge. Nan R. Nolan REPORT & RECOMMENDATION This is a Fair Housing Act case which is almost three and a half years old. Plaintiff Donna Balachowski ("Balachowski") suffers from osteoarthrisitis, degenerative joint disease, and nerve damage. Balachowski claims she uses a wheelchair for mobility. She alleges that Defendant Paul Boidy ("Boidy"), the owner and developer of an apartment building located at 1106 South First Avenue in Maywood, Illinois, failed to design and construct the building in an manner that was accessible and usable by Balachowski and other wheelchair users and that Boidy has rejected Balachowski's requested modifications and accommodations. On May 8, 1996, Judge Leinenweber entered default against Boidy for failure to appear or answer. On August 19, 1998, Judge Gottschall denied Boidy's motion to vacate the default order. A prove-up hearing on damages is scheduled to begin today. Pending before the Court is Boidy's Motion for Leave to File a Cross-Claim against Garapolo & Associates ("Garapolo") which was filed on April 12, Garapolo is an architect who had primary responsibility for the design of the building at issue. Garapolo was originally named as a defendant, but in March 1996, Judge Leinenweber dismissed Balachowski's claim against Garapolo. Balachowski has no objection to Boidy filing the cross-claim as long as the proveup hearing on damages proceeds as scheduled.

3 Federal Rule of Civil Procedure 13(g) governs cross-claims. Rule 13(g) provides that a party may file a cross-claim against a co-party which arises out of the transaction or occurrence that is the subject matter of the original action. A crossclaim may include a claim that the "party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant." Fed. R. Civ. P. 13(g). Boidy's proposed cross-claim asserts that Garapolo is responsible in whole or in part for any damages Balachowski recovers from Boidy. Boidy's Motion for Leave to File a Cross-Claim should be denied for two procedural reasons. First, "Federal Rules of Civil Procedure 12(b) and 13(g) require that cross-claims be stated in a pleading, and under Federal Rule of Civil Procedure 7(a) cross-claims should be contained in defendant's answer." Langer v. Monarch Life Insurance Co., 966 F.2d 786, 810 (3rd Cir. 1992); In re Cessna Distributorship Antitrust Litigation, 532 F.2d 64, 67 & n.7 (8th Cir. 1976). In the present case, Boidy was defaulted for failing to appear or answer. Thus, no answer exists for Boidy to amend to include a cross-claim. Boidy has failed to provide the Court with any authority indicating that a defendant who has been defaulted as to liability for failing to answer may file a free-standing cross-claim almost three years later. Second, several courts have held that a cross-claim cannot be asserted against a party who has been dismissed prior to the assertion of the cross-claim. See Wake v. United States, 89 F.3d 53, (2d Cir. 1996); Ventre v. Datronic Rental Corporation, 1995 U.S. Dist. LEXIS 19440, 1996 WL 5211 (N.D. Ill. 1996); Glaziers and Glassworkers Union v. Newbridge Securities, 823 F. Supp. 1188, 1190 (E.D. Pa. 1993); see also 6 Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2d 1431 (2d ed. 1990) (stating "No cross-claim may be brought against a person who has been eliminated or who has withdrawn from the action, since he no longer is a party."). Moreover, the Seventh Circuit has observed that "a Rule 13(g) cross-claim will lie only against an existing

4 defendant." In re Oil Spill by Amoco Cadiz Off Coast of France on Marcy 16, 1978, 699 F.2d 909, 913 (7th Cir. 1983). In Wake, the Second Circuit upheld the district court's denial of a defendant's motion to amend its answer to assert a cross-claim where the remaining defendants had been dismissed at the time the motion to amend was filed. Wake, 89 F.3d at Similarly, in this case, Garapolo was dismissed as a party to this action in March, 1996 and Boidy cannot now assert a cross-claim against Garapolo. Boidy asserts that Garapolo remains a co-party within the meaning of Rule 13(g) because a Rule 54(b) final judgment was not entered as to Balachowski's claim against Garapolo. The Court rejects Boidy's argument for several reasons. First, Boidy has not provided the Court with any case law supporting his argument, and the only similar case found by the Court rejected such an argument. See Joyce v. Ruklick, 1985 U.S. Dist. LEXIS 15230, 1985 WL 1492 (N.D. Ill. 1985). Second, although in Wake, the district court entered a Rule 54(b) judgment on the same day it denied the University's motion to amend its answer to assert a cross-claim, the Second Circuit found significant the fact that all claims by the plaintiff against the federal defendants had been dismissed at the time the University filed its motion to amend its answer to assert a cross-claim. No Rule 54(b) judgment existed at the time the University filed its motion for leave to amend its answer to assert a cross-claim. Third, in a recent Seventh Circuit case, LaSalle county argued that it remained a party throughout the proceedings because no Rule 54(b) judgment was entered after the county's motion to dismiss was granted and the plaintiffs failed to name the county in their amended complaint. Carver v. Condie, 169 F.3d 469, 1999 WL 93373, *3 (7th Cir. 1999). The Seventh Circuit found that the question of whether the county remained a formal party to the litigation was a red herring in the context of that case but stated that, "Rule 54(b), however, does not affect the county's 'party' status one way or the other." Id. The court explained that the "only purpose of a Rule 54(b) order is to render 'final' for purposes of appellate

5 review a discrete part of a case that can and should stand on its own immediately." Id. The above authorities strongly suggest that the existence of Rule 54(b) judgment does not affect whether Garapolo is currently a co-party within the meaning of Rule 13(g). Finally, Boidy will not be prejudiced by the denial of his motion for leave to a cross-claim. Boidy likely retains the option of filing a separate action against Garapolo if Balachowski recovers against Boidy because all cross-claims are permissive. 6 Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2d 1431 (2d ed. 1990). According to Wright & Miller, "A party who decides not bring his claim under Rule 13(g) will not be barred by res judicata, waiver, or estoppel from asserting it in a later action, as he would if the claim were a compulsory counterclaim under Rule 13(a)." Id. Any objections to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this notice. See Fed. R. Civ. P. 72(b); 28 U.S.C. 636(b)(1). Failure to object constitutes a waiver of the right to appeal. Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir. 1995). ENTER: Nan R. Nolan United States Magistrate Judge Dated: April 22, 1999

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