circuity of action.' In speaking of compulsory and permissive counterclaims, the language used is directed to a claim in opposition of plaintiff's claim against the defendant usually by way of set off, recoupment or otherwise. In the instant case the defendant surety company has no affirmative claim in opposition to the claim presented by the plaintiff. It, of course, may and has raised defenses to plaintiff's claim that the Sutter Lumber Company had against plaintiff. Those defenses were raised in the responsive part of the answer. Professor Moore in Moore's Federal Practice, Volume 3, page 14, et seq., gives a full discussion of the principles mentioned here.
SECOND -- Defendant attempts to use Rule 13(h) of the Federal Rules of Civil Procedure as authority for the Court to order the Sutter executors as additional parties defendant. But again that Rule presupposes a valid counterclaim or cross-claim. It is founded also upon there being jurisdiction between the adverse parties. In the instant case no diversity jurisdiction appears between plaintiff and the Sutter executors nor is any averred in the pleadings or in briefs defendant had filed. Judge Wham of the Eastern District of Illinois, Fort Chartres and Ivy Land D. & L. Dist. etc. v. Thompson, D.C., 4 F.R.D. 369 (1945), has a full discussion of the proposition advanced by defendants. What was stated in Judge Wham's decision has full application to the instant issue.
THIRD -- It is, of course, axiomatic in the Federal system that jurisdiction is a limited one. No doubt there is some merit to defendant's position that the controversy between the Sutter executors and the Authority should be disposed of at the same time liability of the surety is adjudicated. However meritorious such a position may be, there must be diversity of citizenship between the opposing parties in a controversy of the type presented here. As that does not appear, even though defendant should bring in the Sutter executors as third party defendants, still plaintiff may not file a claim against them because of lack of diversity. The decisions under Rule 14 are clear on that point. Further, since the 1948 amendment to Rule 14 as shown in Moore's Federal Practice, Volume 3, page 429, defendant can no longer move to implead a third party on the ground that he is or may be liable to plaintiff. In other words, defendant under the Federal system may not now at any time tender another defendant to plaintiff. That is exactly what the defendant proposes to do by the instant pleading.
A number of decisions have been cited by the defendant in support of its pleading but a careful examination of them will show that they refer to third party practice or to cases in which two defendants have been jointly sued or other circumstances peculiar to the facts at issue. The interpleader statute, 28 U.S.C.A. § 1335, is no help to defendant. This statute, as Judge Wham mentioned, is designed to assist the stake holder where there are several claims to the fund. Even in interpleader cases under the statutes, there must be diversity of citizenship between the adverse claimants. An appropriate Order will be entered.
AND NOW, this 8th day of June, 1962, for the reasons mentioned in the foregoing memorandum, the motion of plaintiff to strike that portion of defendant's answer designated 'COUNTERCLAIM FOR INTERPLEADER' is granted and said portion of the answer is stricken and deleted from the answer filed.
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