Warren v. Indian Refining Co.

• Citation: 30 F. Supp. 281
• Decision Date: 17 November 1939
• Docket Number: No. 712.,712.
• Parties: WARREN v. INDIAN REFINING CO. et al.
• Court: U.S. District Court — Northern District of Indiana

30 F. Supp. 281

WARREN v. INDIAN REFINING CO. et al.

No. 712.

District Court, N. D. Indiana, Hammond Division.

November 17, 1939.

Randolph & Randolph, of Lafayette, Ind., and Bomberger, Peters & Morthland, of Hammond, Ind., for plaintiff.

A. K. Sills, of Lafayette, Ind., and Crumpacker & Friedrich, of Hammond, Ind., for defendants.

SLICK, District Judge.

The question for decision is the motion of defendant Indian Refining Company to strike out plaintiff's counterclaim. The suit brought by plaintiff is to recover on a bond given by the Indian Refining Company with the United States Fidelity & Guaranty Company as surety in an injunction suit in the state court. Defendant answered in several paragraphs, one of which is denominated a counterclaim, in which defendant claims damages against the plaintiff on a contract or commission agency agreement which defendant claims was breached by plaintiff. Plaintiff then filed a counterclaim admitting the execution of the commission agency agreement, but charging that the defendant Indian Refining Company after the execution of the agreement, entered into certain schemes, devices, combinations and conspiracies to restrict and restrain trade and commerce in violation of the anti-trust law of the state of Indiana, and all to the damage of plaintiff, who was endeavoring to operate under the terms of said commission agency contract.

Defendant claims a departure; that plaintiff is seeking to change the form of the action from one for breach of the conditions of a bond given in the injunction suit, to one for damages growing out of alleged acts restrictive of competition and in restraint of trade in violation of the Indiana statutes.

Plaintiff contends that this is not changing his form of action, but that his suit now includes the action for damages under the state anti-trust law; that it is an action for both damages for breach of conditions of the bond and damages for actions in restraint of trade, brought into the case by the defendant pleading as a counterclaim the commission agency contract.

The question arises under the new rules of procedure and, so far as we have been able to learn, is new. The new rules are a distinct departure from the procedure to which we have been accustomed. The new rules have changed the procedure in regard to pleading a counterclaim — whether for better or worse remains to be determined by actual experience, but we now have the provision in Rule 13 (b) entitled "Permissive Counterclaims", 28 U.S.C.A. following section 723c, which 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."

If the language used in this rule means what it says, a counterclaim wholly unrelated to the subject matter of a suit may be set up. The question arises, who may counterclaim? Defendant says, only the defendant. Plaintiff says, either plaintiff or defendant. That is, it is plaintiff's contention that a plaintiff may file a counterclaim to a counterclaim. This seems to be exactly what Rule 13(b) permits. It is worthy of note and would seem to be quite significant that Rule 13 does not use the term "plaintiff" or "defendant", or "complaint" or "answer", but speaks of "pleading", "a pleader" and "any opposing party."

In Irvin...