Pioche Mines Consol. v. Fidelity-Philadelphia Trust Co., 12865.
| Decision Date | 02 September 1953 |
| Docket Number | No. 12865.,12865. |
| Parties | PIOCHE MINES CONSOL., Inc., et al. v. FIDELITY-PHILADELPHIA TRUST CO. et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
H. R. Cooke and Thomas A. Cooke, Reno, Nev., Francis T. Cornish, Berkeley, Cal., for appellant, Pioche Mines Consolidated, Inc.
Douglas A. Busey, Reno, Nev., for appellant, Pioche Mines Co.
Francis T. Cornish, Berkeley, Cal., for appellant, John Janney.
Bruce R. Thompson, Reno, Nev., for appellant, Richard K. Baker.
William J. Forman, Reno, Nev., J. Tyson Stokes and Thomas B. K. Ringe, Philadelphia, Pa., for appellee.
Before STEPHENS, HEALY, and BONE, Circuit Judges.
We heretofore ordered the dismissal of the supplemental complaint of appellee Fidelity in this case for absence of indispensable parties. Pioche Mines Consolidated v. Fidelity-Philadelphia Trust Co., 202 F.2d 944. In ruling on the case we neglected the issue whether the trial court's dismissal of Pioche's counterclaim was proper. Pioche petitioned for a rehearing requesting that we pass on that matter. Fidelity was asked to present a brief expressing its views on the subject and has done so. To this Pioche has replied, and the neglected issue is now before us for disposition.
Fidelity argues that the dismissal of its complaint renders mandatory a dismissal of the counterclaim also. We think not. Compulsory counterclaims are required to be dismissed only when the complaint is dismissed for want of jurisdiction, which was not the case here. The counterclaim persists where it is supported by an independent ground of federal jurisdiction, Isenberg v. Biddle, 75 U.S.App.D.C. 100, 125 F.2d 741; 3 Moore's Federal Practice § 13.15. Pioche is a resident of Nevada, Fidelity of Pennsylvania; and federal jurisdiction thus rests on diversity. The Debenture Holders' Committee is not an indispensable party to the action on the counterclaim. The cause of action undertaken to be stated in the latter sounds in tort, for which liability is joint and several. In such situation the right may be asserted against any one or more of the tort-feasors, the others not being necessary parties. 3 Moore's Federal Practice § 19.11. See Rule 19, F.R.C.P., 28 U.S.C.A.
Fidelity further contends that the counterclaim was properly dismissed on its motion for summary judgment. It says that the trial court, after a careful study of the lengthy record, determined that no genuine issue of fact was presented by the counterclaim. We do not so understand the attitude of the trial judge. His opinion clearly indicates that, as regards the counterclaim, he was dismissing the first cause of action set out in it on the ground that it attempted to state a claim against Fidelity for breach of the Settlement Agreement, to which Fidelity was not a party. In our view a liberal reading of that count indicates an attempt to state a claim for tortious interference by Fidelity with contractual relations between Pioche and the Debenture Holders' Committee. As regards the second cause of the counterclaim, it is clear that the judge dismissed it on the narrow ground that the allegations bearing on the...
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