acts. Indeed, the D'Iorio court itself recognized this difference in distinguishing Parnes v. Heinold Commodities, Inc., supra. D'Iorio v. Adonizio, supra, at 233.
If enterprise liability is not necessary to either disgorge illegal profits retained by a corporation, cf. D'Iorio v. Adonizio, supra, or to assess liability personally upon the individual actors, United States v. Benny, supra, I hold a corporation cannot, at the same time, be both a "person" and an "enterprise" under RICO. For this reason the RICO counterclaim against SDS must be dismissed.
The first counterclaim must also be dismissed as to the other counterclaim defendants. A counterclaim cannot add additional parties unless it also states a claim against an existing party to the action. 3 Moore's Federal Practice para. 13.39 at 13-234. SDS is the only existing party to the action named in the first counterclaim. Therefore, because this counterclaim is dismissed as to SDS it must also be dismissed as to the other counterclaim defendants.
Like the first counterclaim, the second counterclaim fails to state a claim on which relief can be granted. In essence, the second counterclaim alleges the defendant, Henningsen, converted two SDS scanners to protect his investment in SDS. Even assuming that SDS improperly jeopardized Henningsen's investment, Henningsen would not have the right to convert the scanners for his own use. It is an elementary principle of law that an aggrieved party may not vindicate the wrong done him by breaking the law himself.
The third counterclaim seeks recovery for an alleged loan from Henningsen to SDS. Because SDS's complaint was brought to recover for the alleged misappropriation of two CATSCAN units, Henningsen's claim for the alleged loan obviously does not arise out of the same transaction or occurrence as that asserted by plaintiff. Therefore, the third counterclaim is a permissive counterclaim over which an independent jurisdictional basis must exist. Wright & Miller, Federal Practice and Procedure: Civil § 1422 at 119 (citations omitted). Henningsen has not stated a federal claim and the complaint shows that SDS and Henningsen are both citizens of Ohio (notwithstanding Henningsen's allegation in the counterclaim that he is a resident of Pennsylvania). For these reasons this claim must be dismissed for lack of subject matter jurisdiction.
As a result of my decision on the first counterclaim, the fourth counterclaim must be dismissed because it is directed against a non-party. 3 Moore's Federal Practice para. 13.39 at 13-234.
The fifth counterclaim like the third, is a permissive counterclaim lacking an independent jurisdictional basis. Therefore, it must also be dismissed.
AND NOW, this 16th day of May, 1984, for the reasons contained in the attached memorandum, plaintiff's motion to dismiss defendants' counterclaims is granted.