Painter v. Harvey

• Decision Date: 19 December 1988
• Docket Number: Nos. 87-2203,s. 87-2203
• Citation: 863 F.2d 329
• Parties: Florhline A. PAINTER, Plaintiff-Appellant, v. Larry R. HARVEY, Defendant-Appellee. and The Town of Luray Police Department; Jerry M. Schiro, Chief of Police; The Town of Luray; The Luray Town Council, Defendants. Florhline A. PAINTER, Plaintiff-Appellee, v. Larry R. HARVEY, Defendant-Appellant. and The Town of Luray Police Department; Jerry M. Schiro, Chief of Police; The Town of Luray; The Luray Town Council, Defendants. (L), 87-2210.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 329

863 F.2d 329

12 Fed.R.Serv.3d 1213

Florhline A. PAINTER, Plaintiff-Appellant, v. Larry R. HARVEY, Defendant-Appellee. and The Town of Luray Police Department; Jerry M. Schiro, Chief

of Police; The Town of Luray; The Luray Town

Council, Defendants.

Florhline A. PAINTER, Plaintiff-Appellee, v. Larry R. HARVEY, Defendant-Appellant. and The Town of Luray Police Department; Jerry M. Schiro, Chief

of Police; The Town of Luray; The Luray Town

Council, Defendants.

Nos. 87-2203(L), 87-2210.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 6, 1988.

Decided Dec. 19, 1988.

Deborah C. Wyatt (Gordon & Wyatt, Charlottesville, Va., on brief), for plaintiff-appellant.

David A. Penrod (Hoover, Hoover, Penrod & Davenport, Harrisburg, Va., on brief), for defendant-appellee.

Before RUSSELL, HALL and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge:

In this case we must determine if the district court properly invoked its ancillary subject matter jurisdiction to entertain a state libel counterclaim that arose in response to a federal action under 42 U.S.C. Sec. 1983. Plaintiff Painter alleged that defendant Harvey violated her constitutional rights while arresting her for driving under the influence in November, 1984. Defendant counterclaimed, asserting that plaintiff slandered and libeled him by filing a fabricated complaint about the circumstances of her arrest with the Town Council of Luray, Virginia, and by distributing her complaint to the local news media. Following a jury verdict in defendant's favor, plaintiff moved to dismiss defendant's counterclaim for lack of subject matter jurisdiction. The district court held defendant's counterclaim compulsory because it involved substantially the same evidence as plaintiff's claim, 673 F.Supp. 777. It also denied defendant's motion for attorney's fees. We affirm both rulings.

I.

At 12:45 a.m. on the morning of November 9, 1984, police officer Larry Harvey stopped a vehicle driven erratically by plaintiff Florhline Painter in the Town of Luray, Virginia. Both plaintiff and a companion appeared intoxicated and Harvey called for additional assistance. After the assistance arrived, Harvey placed Painter under arrest for driving while intoxicated, handcuffed her, and, with the help of another officer, placed her in the back seat of his patrol car. A plastic shield separated the front and back seats.

Harvey transported Painter at once from the scene of the arrest to a local jail. Harvey's car was preceded and followed by two other police cars and was never out of their sight. When Painter arrived at the jail, her blouse was unbuttoned, one breast was exposed, and her shoes, panty hose, and underpants were removed. She claimed Officer Harvey had raped her and initially refused to cover herself when requested to do so.

On April 9, 1985, Painter appeared before the Luray Town Council to summarize her version of the events of her arrest and to file a formal complaint against Officer Harvey. She also issued a prepared written statement to a reporter from the local newspaper, the Page News and Courier. The statement contained the allegation that Harvey had "jerked me out of my car, tore my blouse, put marks on my breast, and I also sustained a head and neck injury from his excessive force he used...." Excerpts from the complaint were published in the Page News and Courier on April 12, 1985.

Painter filed suit in federal district court in February, 1985. She alleged that Harvey lacked probable cause to arrest her and had used excessive force during her arrest, all in violation of 42 U.S.C. Sec. 1983.

Harvey counterclaimed against Painter for defamation. He alleged that Painter had falsely claimed that she was molested or raped during the November, 1984 arrest, and had submitted a false summary of the circumstances of her arrest to the Luray Town Council the following April. Harvey's version of events was starkly at variance with that of Painter. He testified that when he and Painter arrived at the jail, he noticed that Painter had opened her blouse, exposed one of her breasts, and had removed her shoes, panty hose, and underpants. Jerry Shiro, the former chief of police of the Luray Police Department, stated that the Page News and Courier article had created serious embarrassment for Harvey with the public, his fellow police officers, and members of the Town Council.

The case was tried before a jury. The jury found for Harvey on Painter's Sec. 1983 claim. The jury also found in Harvey's favor on the defamation counterclaim, awarding compensatory damages of $5,000.00 and punitive damages of $15,000.00. Painter moved to set aside the verdict on the grounds that the court lacked subject matter jurisdiction over the counterclaim. Harvey moved for attorney's fees. The district court denied both motions. Painter appeals and Harvey cross-appeals.

II.

The sole question on Painter's appeal is the nature of Harvey's counterclaim. If the counterclaim is compulsory, it is within the ancillary jurisdiction of the court to entertain and no independent basis of federal jurisdiction is required. If the counterclaim is permissive, however, it must have its own independent jurisdictional base. 6 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1409 (1971 and 1988 Supp.). Since Painter and Harvey are both citizens of Virginia, and Harvey asserts no federal question, the designation of the counterclaim is critical.

In defining a compulsory counterclaim, Fed.R.Civ.P. 13(a) provides in pertinent part that:

A pleading shall state as a counterclaim any claim which at the time of serving the pleadings the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim.

Fed.R.Civ.P. 13(b), in contrast, provides that:

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.

We hold that defendant's counterclaim is compulsory and that the district court properly exercised jurisdiction over it.

III.

In Sue & Sam Mfg. Co. v. B-L-S Const. Co., 538 F.2d 1048 (4th Cir.1976), this circuit suggested four inquiries to determine if a counterclaim is compulsory: (1) Are the issues of fact and law raised in the claim and counterclaim largely the same? (2) Would res judicata bar a subsequent suit on the party's counterclaim, absent the compulsory counterclaim rule? (3) Will substantially the same evidence support or refute the claim as well as the counterclaim? and (4) Is there any logical relationship between the claim and counterclaim? Id. at 1051-1053. A court need not answer all these questions in the affirmative for the counterclaim to be compulsory. Id. at 1053; see also Hospital Building Co. v. The Trustees of Rex Hospital, 86 F.R.D. 694, 696 (E.D.N.C.1980). Rather, the tests are less a litmus, more a guideline.

Although the tests are four in number, there is an underlying thread to each of them in this case: evidentiary similarity. The claim and counterclaim both involved witness testimony directed toward the same critical event. Indeed, in applying the four Sue & Sam tests, the district court invariably returned to the same place. As to inquiry (1), the district court noted that: "The central issue in both the claim and counterclaim is identical: What transpired during Mrs. Painter's arrest on November 9, 1984? The jury, in essence, was faced with irreconcilably conflicting evidence and was required to choose which version to accept or reject."

As to inquiry (2), the district court stated: "Examining the facts here, one finds that the jury verdict against Mrs. Painter on her Sec. 1983 claim necessarily determined the issue of what happened during her arrest. Thus, in subsequent state action she could well face an issue preclusion bar as to relitigating those facts."

Inquiry (3) is explicitly evidentiary in nature. Not surprisingly, the district court concluded: "All of the witnesses, except the newspaper editor and witnesses testifying to damages, limited their testimony to a single factual issue--what transpired during Mrs. Painter's arrest on November 9, 1984? It is hard to imagine a case in which the evidence bearing on the two claims is so closely identical."

With regard to inquiry (4), the district court was once again led to the differing tales of the same evening underlying both claim and counterclaim. It concluded that: "In short, the truth of Officer Harvey's version of the events of November 9, 1984, is the central issue of fact in both the claim and counterclaim. They are inextricably and logically connected."

Where, as here, the same evidence will support or refute both the claim and counterclaim, the counterclaim will almost always be compulsory. The "same evidence" test thus accomplishes the purposes of Fed.R.Civ.P. 13(a), because the "very purpose of making certain types of counterclaims compulsory is to prevent the relitigation of the same set of facts." 6 C. Wright & A. Miller, supra, at Sec. 1410. This rationale for ancillary jurisdiction over compulsory counterclaims, moreover, parallels the rationale for pendent jurisdiction--namely, that where different claims of law "derive from a common nucleus of operative fact," the justification for the exercise of federal jurisdiction "lies in considerations of judicial economy, convenience and fairness to litigants." United Mine Workers of America v. Gibbs, 383 U.S. 715, 725-26, 86 S.Ct. 1130, 1138-39, 16 L.Ed.2d 218 (1966). Holding counterclaims compulsory avoids the burden of multiple trials with their corresponding duplication of evidence and their drain on limited judicial resources. Southern Construction Co. v. Pickard, 371 U.S. 57, 60, 83 S.Ct. 108, 110, 9 L.Ed.2d 31 (1962). The "same evidence" test simply makes these concerns the focal point of its determination by requiring claims and...