Opinion
Actions by the United States to recover overpayments allegedly made in connection with operation of G. I. training school by defendants, wherein original defendants filed third-party complaints against a corporation formed by them and third-party defendant corporation filed counterclaims against the United States. On motions to dismiss the counterclaims, the District Court, Welsh, J., held that third-party complaints did not make third-party defendant corporation a defendant in original actions brought by the United States and that, since no action or claim by the United States against third-party defendant corporation was pending, third-party defendant corporation could not maintain counterclaims against the United States.
Counterclaims dismissed.
W. Wilson White, U.S. Atty., Norman C. Henss, Asst. U.S. Atty., Philadelphia, Pa., for plaintiff.
Gilbert Stein, Joseph E. Gold, Philadelphia, Pa., for defendants.
WELSH, District Judge.
The United States commenced these actions against the partnership named herein and the individual members thereof to recover alleged overpayments made in connection with the operation of a ‘ G. I.’ Training School. Subsequently, defendants filed motions to join as third-party defendant the corporation formed by them. The proposed third-party complaints alleged inter alia that the transactions on which the claim of the United States for overpayments is based occurred after the formation of the corporation; that the partnership and the individual members are not liable; and that if they are liable the corporation is liable over to them for any sums the United States may recover against them. This Court felt the proposed third-party complaints were proper under Federal Rules of Civil Procedure, Rule 14, 28 U.S.C.A. and accordingly granted said motions. The corporation then filed answers to the third-party complaints and counterclaims against the United States. The United States has now moved to dismiss the counterclaims. The councerclaims must, we think, be dismissed. When this Court allowed the joinder of the corporation it was thereby made a defendant in the third-party action but it was not thereby made a defendant in the original action brought by the United States. Also, the United States did not amend its complaint to make the corporation a defendant as to it, the United States. Thus, as the record now stands there are actions 1. by the United States against the partnership and the individual members thereof and 2. by the partnership and the individual members thereof against the corporation.
It is observed no action by the United States against the corporation is pending. A counterclaim pre-supposes the existence of a claim against the party filing the counterclaim. There being no claim by the United States against the corporation and counterclaimant, we conclude the counterclaims filed by the corporation herein are improper and should be dismissed.
An appropriate order will be prepared and submitted.