Kuenzel v. Universal Carloading & Distributing Co., 87.

• Decision Date: 30 August 1939
• Docket Number: No. 87.,87.
• Citation: 29 F. Supp. 407
• Parties: KUENZEL v. UNIVERSAL CARLOADING & DISTRIBUTING CO., Inc.
• Court: U.S. District Court — Western District of Pennsylvania

29 F. Supp. 407

KUENZEL v. UNIVERSAL CARLOADING & DISTRIBUTING CO., Inc.

No. 87.

District Court, E. D. Pennsylvania.

August 30, 1939.

Martin Feldman, of Philadelphia, Pa., for plaintiff.

Edmonds, Obermayer & Rebmann, of Philadelphia, Pa., for defendant.

KALODNER, District Judge.

Plaintiff's complaint, sounding in tort, sought to recover for an alleged libel. Defendant answered and counterclaimed in assumpsit for goods sold and delivered. Plaintiff then filed this motion to strike the counterclaim because of the difference in the forms of action.

Neither party has furnished any authorities upon the precise question subsequent in date to the effective date (September 1, 1938) of the new Federal Rules of Civil Procedure for the District Courts of the United States, 28 U.S.C.A. following Section 723c, and my own search has disclosed none.

Were this a question merely of the construction and effect of the language of the appropriate rule, no difficulty would be presented. Sections (b) and (c) of Rule 13 read as follows:

"(b) A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.

"(c) A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party."

Aiding construction in this regard is the discussion of the Rule appearing in the report of the proceedings of the American Bar Association Institute on Federal Rules, at page 248:

"Mr. J. R. Keaton (Oklahoma City, Oklahoma): Does that mean that if A should sue B for tort, an automobile accident, we will say, that B might come back with a promissory note and adjust that in the same suit?

"Mr. Clark (Dean Charles E. Clark of Yale University Law School, Institute Lecturer): It certainly does.

"Mr. Keaton: All of the claims, whether involving a contract or tort, can be settled in the same suit?

"Mr. Clark: Yes."

The language of the rule and the above cited interpretation thereof leave no doubt that its effect, meaning and intent permit counterclaiming such as is involved in the instant suit. The language of the rule is plain, free from ambiguity, and permits of no different construction. As was said in United States to Use and for Benefit of Foster Wheeler Corp. v. American Surety Co. of New York, D. C., 25 F. Supp. 700, 701: "The new rules of procedure are designed to enable the disposition of a whole controversy such as this at one time and in one action, provided all parties can be brought before the court and the matter decided without prejudicing the rights of any of the parties. There is nothing presently apparent which would substantially prejudice the rights of anyone if these various claims are heard together."

And again (page 702): "While the claims set up by the intervening defendant are not wholly consistent with each other, this affords no reason for dismissing one or all of them. Consistency between various claims asserted is not necessary under the new rules. Rule 8(e) (2) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c."

It is contended by the moving party, however, that the Rule is in contravention of the so-called Conformity Act, R.S. § 914, 28 U.S.C.A. § 724, which reads: "§ 724. Conformity to practice in State courts. The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the district courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such district courts are held, any rule of court to the contrary notwithstanding."

Rules promulgated by the Supreme Court have the force of law, unless in contravention of Federal Statutes. American Graphophone Co. v. National Phonograph Co., C.C., 127 F. 349, 350.

There is grave doubt in my mind that this Court has the power to declare a rule adopted by the Supreme Court of the United States to be in contravention of a statute in force at the time of the adoption of the rules. I must assume that the Supreme Court had the provisions of the Conformity Act in mind at the time the rules of procedure for this Court were considered and adopted; that the Supreme Court was perfectly cognizant of the then prevailing practice in many states disallowing counterclaims in assumpsit against an original claim grounded in a tort; wherefore, the final adoption of Rule 13 is tantamount in my opinion to a declaration by our highest court that the Rule does not violate the Conformity Act. By such implied declaration I consider myself bound, and must decline to hold that Rule 13 becomes inoperative because irreconcilable with the Conformity Act.

It must be noted also that the Conformity Act lays down no rigid and immutable rule. It has been held time and again that, in view of the phrase "as near as may be" appearing in the Statute, the state practice or procedure may be disregarded where adherence thereto would unwisely encumber the administration of the law. See cases collected under 28 U.S.C. A. § 724, note 8, and 28 U.S.C.A. § 731, note 3. Moreover, the Supreme Court has said in Shepard v. Adams, 168 U.S. 618, 18 S.Ct. 214, 216, 42 L.Ed. 602: "We think it is sufficiently made to appear, by these citations from the statutes, that while it was the purpose of congress to bring about a general uniformity in federal and state proceedings in civil cases, and to confer upon suitors in courts of the United States the advantage of remedies provided by state legislation, yet that it was also the intention to reach such uniformity often largely through the discretion of the federal courts, exercised in the form of general rules, adopted from time to time, and so regulating their own practice as may be necessary or convenient for the advancement of...