since no answer has been filed and the pleadings themselves do not indicate privilege. A communication is privileged if made upon a proper occasion, in a proper manner, from a proper motive and upon reasonable and probable cause, none of which appear in this record.
Another ground for dismissal raised by plaintiff is the failure of defendant to plead the place of publication of the libel as required by Rule 9(f), 28 U.S.C.A. In Pentz v. Downey, D.C.E.D.Pa.1953, 110 F.Supp. 642, our colleague, Judge Grim held that a pleading in a defamation action was defective for failure to allege the place of publication. However, thirty days were granted in which to amend this defect. Therefore, the defendant will be granted thirty days in which to amend his counterclaim to allege the time and place of publication.
Any issue as to the damages claimed and the basis thereof can be determined by plaintiff by use of the discovery processes.
Now that we have discussed the issues relating to the libel action, we come to count I, claiming $ 8,333.30 for wages due Peterson as a result of a breach of contract by plaintiff for wrongfully discharging him. Plaintiff contends that since this counterclaim is permissive only, it should be dismissed for lack of jurisdictional amount. However, a careful reading of the pleadings indicates that this counterclaim is compulsory and not permissive since it arises out of the transaction or occurrence that is the subject matter of plaintiff's claim. The test generally applied by the Courts in determining whether a counterclaim is compulsory is whether there is a logical relationship between the claim and counterclaim.
The gist of plaintiff's complaint is the alleged misconduct of the defendant while in its employ, such as breach of fiduciary duty, interference with contractual relations, as a result of which Peterson was discharged. Plaintiff seeks various forms of relief, including a return of wages already paid to defendant. Therefore it should make no difference in this case upon what legal theory plaintiff is proceeding since it is the conduct of the parties in this occurrence that will determine who shall prevail.
A compulsory counterclaim being ancillary to the main claim needs no independent jurisdictional grounds to support it and this is so even as to amount. 3 Moore's Federal Practice, par. 13, 15.
And now, this 30th day of October, 1959, it is hereby ordered that:
(1) Plaintiff's motion to dismiss the counterclaim is denied.
(2) Defendant, Peterson, may amend his complaint within thirty (30) days to allege the time and place of the publication of the alleged libel.