Chase v. Pan-Pacific Broadcasting, Inc., PAN-PACIFIC
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
| Writing for the Court | Before GINSBURG, BORK and STARR; GINSBURG |
| Citation | 750 F.2d 131,242 U.S.App. D.C. 283 |
| Parties | , 40 Fed.R.Serv.2d 1107 Seymour M. CHASE, v.BROADCASTING, INC., et al. Miko Enterprises, Inc., et al., Appellants. |
| Docket Number | PAN-PACIFIC,No. 83-2329,83-2329 |
| Decision Date | 18 December 1984 |
Page 131
v.
PAN-PACIFIC BROADCASTING, INC., et al. Miko Enterprises,
Inc., et al., Appellants.
District of Columbia Circuit.
Decided Dec. 18, 1984.
James C. Eastman, Washington, D.C., for appellants.
Charles T. Duncan, Washington, D.C., with whom Mark D. Colley, Washington, D.C., was on the brief, for appellee.
Before GINSBURG, BORK and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
Page 132
GINSBURG, Circuit Judge:
We review in this interlocutory appeal, taken pursuant to 28 U.S.C. Sec. 1292(b) (1982), the district court's determination that a defendant who interposes a counterclaim thereby waives a simultaneously asserted personal jurisdiction defense. We reverse the district court's order. The holding that a defendant may not state in an answer both a jurisdictional defense and a counterclaim is inconsistent with the design and purpose of the pleading prescriptions set out in the Federal Rules of Civil Procedure. See FED.R.CIV.P. 8, 12, 15. Rule 12(b) gives a defendant the option to assert jurisdictional objections by motion in advance of answer. The defendant may, however, forgo a threshold motion and, as was done in this case, assert initially in the answer every defense, objection, or response the defendant has to the plaintiff's claim for relief, including jurisdictional challenges, denials, affirmative defenses, and counterclaims. Under the Federal Rules, no answering plea is, by reason of its character, automatically repugnant to, or repellent of, any other, and no waiver or other penalty should attend combining all responses in a single pleading.
I. FACTS
Plaintiff-appellee Seymour M. Chase seeks payment of approximately $72,000 allegedly due him for legal services rendered in conjunction with an unsuccessful application to the Federal Communications Commission for a Los Angeles area UHF broadcast license. Chase named as defendants Pan-Pacific Broadcasting, Inc. (Pan-Pacific), the would-be licensee; Miko Enterprises, Inc. (Miko), a company holding four-fifths of the stock of Pan-Pacific; and three individuals who together own Pan-Pacific and Miko--Dennis K. Kinoshita, Masataka Iwasaki, and Charles R. Olson (the individual defendants). The action was initiated in the Superior Court of the District of Columbia on May 11, 1983. On Pan-Pacific's petition asserting the requisite complete diversity of citizenship between Chase and all defendants, the case was removed to the United States District Court for the District of Columbia on June 20, 1983. Four days later, Pan-Pacific, Miko, and the individual defendants filed answers to the complaint. No motions were filed in advance of the defendants' responsive pleadings.
Pan-Pacific designated its responsive pleading "Answer and Counterclaim." Following eleven numbered defenses, Pan-Pacific set out and separately labeled a counterclaim in three counts (conflict of interests; negligence; misrepresentation). Pan-Pacific demanded judgment on the counterclaim in the total amount of $348,000. Miko and the individual defendants designated their responsive pleadings simply "Answer." They did not set out any separately labeled counterclaim, nor did they demand any judgment against Chase. All defendants stated the same numbered defenses. The "Second Defense" in each answer read: "The Court does not have personal jurisdiction over the defendant." The "Sixth Defense" in each read: "Defendant is entitled to a set off for the claims of defendant set forth in the counterclaim of Pan-Pacific Broadcasting, Inc. filed herein, which is incorporated herein by reference."
On August 10, 1983, following the commencement of discovery, Miko and the individual defendants moved to dismiss the complaint as to them for lack of personal jurisdiction. Pan-Pacific did not join in this motion. In a Memorandum and Order filed November 10, 1983, the district court denied the motion.
As the district court analyzed the moving defendants' answers to the complaint, they had consented or submitted to the court's jurisdiction over them. The "Sixth Defense," according to the district court, must be deemed a counterclaim by force of Rule 10(c), which provides: "Statements in a pleading may be adopted by reference in a different part of the same pleading or in
Page 133
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Proctor & Gamble Cellulose Co. v. Viskoza-Loznica, No. 95-2291-TUBRE.
...defense. Bayou Steel Corp. v. M/V Amstelvoorn, 809 F.2d 1147, 1148-49 (5th Cir.1987); Chase v. Pan-Pacific Broadcasting, Inc., 750 F.2d 131, 133-34 (D.C.Cir.1984); Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1330 n. 1 (9th Cir.1984); Neifeld v. Steinberg, 438 F.2d 423, 426-31 (3d Cir.1971......
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Baby Girl B., In re, Nos. 14591
...See, e.g., Bayou Steel Corporation v. M/V Amstelvoorn, 809 F.2d 1147, 1148-49 (5th Cir.1987); Chase v. Pan-Pacific Broadcasting, Inc., 750 F.2d 131, 133-34 (D.C.Cir.1984); Gates Learjet Corporation v. Jensen, 743 F.2d 1325, 1330 n. 1 (9th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 21......
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Ramer v. U.S., Civil Action No. 06-cv-1276 (RBW).
...to that party but was not raised in an earlier motion under Rule 12. Fed. R.Civ.P. 12(h)(1)(A); see Chase v. Pan-Pac. Broad., Inc., 750 F.2d 131, 134 (D.C.Cir.1984) ("The office of Rule 12(h)(1) is to assure that a defense of lack of jurisdiction over the person is asserted promptly. It pro......
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Heineken v. Heineken, No. 96-525
...Bayou Steel Corp. v. M/V Amstelvoorn, 809 F.2d 1147 (5th Cir.1987) (third party defendant); Chase v. Pan-Pacific Broadcasting, Inc., 750 F.2d 131 (D.C.Cir.1984); Gates Learjet Corp. v. Jensen, 743 F.2d 1325 (9th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2143, 85 L.Ed.2d 500...
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Ramer v. U.S., Civil Action No. 06-cv-1276 (RBW).
...to that party but was not raised in an earlier motion under Rule 12. Fed. R.Civ.P. 12(h)(1)(A); see Chase v. Pan-Pac. Broad., Inc., 750 F.2d 131, 134 (D.C.Cir.1984) ("The office of Rule 12(h)(1) is to assure that a defense of lack of jurisdiction over the person is asserted promptly. It pro......
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Proctor & Gamble Cellulose Co. v. Viskoza-Loznica, 95-2291-TUBRE.
...defense. Bayou Steel Corp. v. M/V Amstelvoorn, 809 F.2d 1147, 1148-49 (5th Cir.1987); Chase v. Pan-Pacific Broadcasting, Inc., 750 F.2d 131, 133-34 (D.C.Cir.1984); Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1330 n. 1 (9th Cir.1984); Neifeld v. Steinberg, 438 F.2d 423, 426-31 (3d Cir.1971......
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Baby Girl B., In re, s. 14591
...See, e.g., Bayou Steel Corporation v. M/V Amstelvoorn, 809 F.2d 1147, 1148-49 (5th Cir.1987); Chase v. Pan-Pacific Broadcasting, Inc., 750 F.2d 131, 133-34 (D.C.Cir.1984); Gates Learjet Corporation v. Jensen, 743 F.2d 1325, 1330 n. 1 (9th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 21......
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Heineken v. Heineken, 96-525
...Bayou Steel Corp. v. M/V Amstelvoorn, 809 F.2d 1147 (5th Cir.1987) (third party defendant); Chase v. Pan-Pacific Broadcasting, Inc., 750 F.2d 131 (D.C.Cir.1984); Gates Learjet Corp. v. Jensen, 743 F.2d 1325 (9th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2143, 85 L.Ed.2d 500...