The opinion of the court was delivered by: KALODNER
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:
"(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?
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 ...