Procedure Question

About 10 months ago I filed a suit for breach of contract and some other issues against contractors. The company was an LLC. The suit was filed against the LLC and both partners. The LLC had filed a suit against us prior to our suit, but had not served it. Even though SCRCP 12(b)(8) says: Every defense, in law or fact, to a cause of action in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion........(8)another action is pending between the same parties for the same claim. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. It was not used in their answer, but a Motion to Consolidate was later filed by them with the service of their suit on us. Even though I used the 12(b)(8) rule in a Motion to Dismiss, the court has denied it and ruled for their consolidation motion.

I knew I would not prevail on my motion to dismiss (in my state I have accepted the fact that I can not win at hearing, my strategy is simply to not make a fatal mistake in procedure and get through to a jury. However, while waiting for the court to hold hearings I used discovery to gain additional evidence. One supplemental answer to interrogatories made by all parties was the icing on my evidence cake. Two hearings have been held concerning Motions to Compel and two separate judges have ruled on the record that the parties are bound to the answers. I lost on the motions, but knowing I would loose the ruling, I was after getting on the record that the parties were bound to the answers submitted, which was what I got.

I now need to file an Answer to their Complaint. I will file with a counterclaim for causes not included in my original Complaint. My QUESTION is, since their suit was filed in the name of the LLC only, how do I get the two men into my counterclaim? I know there is a way, I just can not find out exactly what it is.

I have found this forum to be very helpful, even posts attempting to insult me are useful, in my opinion.

SmithSouth