Forman, Seitz and Aldisert, Circuit Judges.
May a defendant who properly impleads third-parties on the ground that they are "or may be liable to him for all or part of the plaintiff's claim against him", Fed.R.Civ.Pro. 14, also include, in the absence of an independent jurisdictional basis, a separate claim for property damages which, although not the subject of the original plaintiff's claim, arose out of the same occurrence? This is the specific question posed by this appeal from the district court's dismissal of the third-party plaintiff's claim against the third-party defendants for damages to its locomotive.
Claiming damages for personal injuries sustained as a result of a traintruck collision at a private crossing in Crawford County, Pennsylvania, plaintiff, a railroader, instituted suit against Erie Lackawanna Railroad Company under the Federal Employers' Liability Act, 45 U.S.C. § 51, and against a second defendant on the theory of common law negligence.*fn1 Both Erie and its co-defendant proceeded to name as third-party defendants the estate of the truck driver, the owner of the truck, and the company to which the truck allegedly was leased. In addition to its claim for contribution or indemnification under Rule 14, Erie's third-party Complaint included a separate claim for damages to its train in the amount of $5,041. The third-party defendants moved to dismiss the claim for train damage, asserting a lack of diversity of citizenship, the absence of a federal question, and an insufficient amount in controversy. The district court granted the motion to dismiss*fn2 and Erie appealed.
Erie did not argue below, and does not contend here, that its separate claim is based on an independent federal jurisdictional ground. Rather, it was, and continues to be, Erie's position that the claim is a "compulsory counterclaim" which is "ancillary to the main cause of action" and which, therefore, may survive in the absence of independent jurisdiction. The flaw in this approach is simply that the claim has been mislabeled. A counterclaim must, by definition, arise "out of the transaction or occurrence that is the subject matter of the opposing party's claim ". Fed.R.Civ.Pro. 13(a) (emphasis supplied). Erie's claim against the third-party defendants was not in response to an "opposing party's claim" since none of the "opposing" third-party defendants lodged any claim against Erie.*fn3
That the wrong terminology has been employed, however, is not fatal. Although the district court could have required Erie to replead to correct the error, see Murray v. Haverford Hosp. Corp., 278 F. Supp. 5 (E.D.Pa.1968), it chose instead, following its rejection of the counterclaim theory, to consider what it believed Erie was "really asserting". We will not fault the court for disregarding such technical error. See Falciani v. Philadelphia Transp. Co., 189 F. Supp. 203 (E.D.Pa.1960). Indeed, we too deem it essential that the claim not be improperly characterized, because from a particular characterization may flow peculiar procedural and jurisdictional consequences.
At least one district court case has held that a claim by a third-party plaintiff against a third-party defendant may be labeled a cross-claim pursuant to Fed.R.Civ.Pro. 13(g). Fogel v. United Gas Improvement Co., 32 F.R.D. 202 (E.D.Pa.1963). Rule 13(g) provides in part:
A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action.
Were we to take the view that Erie's claim for train damage is a cross-claim, and assuming that it is sufficiently related to the original action,*fn4 we would experience no difficulty in ruling that the claim is ancillary to the main claim and, as such, requires no independent jurisdictional basis. As stated in 1 Moore's Federal Practice para. 0.90 :
When a federal court has jurisdiction over the main cause of action, it also has jurisdiction over any proceedings ancillary to that action, regardless of the money involved, the citizenship of the parties, or the existence of a federal question in the ancillary suit. * * *
Since cross-claims, compulsory counterclaims, and third party claims arise out of the main cause of action, they are ancillary to that action, and if there is federal jurisdiction over the main action, there is jurisdiction over these ancillary claims. * * *
This principle has been recognized by other commentators*fn5 and appears to be well settled in the courts.*fn6
In Fogel, supra, 32 F.R.D. at 204, the court dealt with the argument that cross-claims under Rule 13(g) cannot apply as between third-party litigants since they are not "co-parties" within the meaning of the Rule.
This contention is incorrect. "Co" is a prefix which "signifies in general with, together, in conjunction, jointly." (Webster's Unabridged Dictionary, 2nd ed.). Even though [the third-party defendant's] position in the case is somewhat different from the positions of the original defendants, it is a co-party within the meaning of Rule 13(g).
A contrary result was reached, however, in a more recent case, also in the Eastern District of Pennsylvania, in which defendants attempted to style third-party claims as cross-claims. In Murray v. Haverford Hosp. Corp., supra, 278 F. Supp. at 6-7, the court reasoned: "We believe that Rule 13(g) was intended to regulate cross-claims between 'co-parties' and contemplated that such cross-claims should be asserted against parties having like status, such ...