Thus, because the dispute would only be proceeding in California, the Court’s comment merely highlighted the obvious conclusion that Stroock’s claim would, as a practical matter, be litigated as a counterclaim in California. 3 In any event, if pertinent to its analysis, the Court should hold that Paramount’s claim is not compulsory under Federal Rule of Civil Procedure 13(a), as the breach merely stemmed from the Federal Action’s filing. Under federal law, a counterclaim is considered to be permissive in such circumstances.

There is therefore nothing about JPMC’s Goodwill Litigation Claims that expands the scope of this litigation. With respect to the other three assets, while each asset will present unique facts, adjudication of whether these assets were owned by the WMB receivership will require examination of the same books and records, understanding the same intercompany relationships, and require consideration of the same fundamental legal issues (e.g., when does a subsidiary acquire beneficial and equitable ownership even when bare legal title exists with a parent company). These claims are squarely within the scope of Fed. R. Civ. P. 13. By contrast, Plaintiffs have come forward with no legal basis to dismiss these claims as impermissibly expanding the litigation, particularly given Case 1:09-cv-00533-RMC Document 93 Filed 11/09/2009 Page 24 of 41 -17- Plaintiffs’ own reservation of the right to assert “any and all other claims of whatever kind or nature that they have, or may have, against WMB.” (Comp. ¶ 11 (D.I. 1).) Second, this Court is the only Court with jurisdiction to determine what claims Plaintiffs preserved through the FIRREA receivership claims process.

However, while factual allegationsregarding theseparties may be relevant to defendants’coun terclaims against plaintiff, the individuals them selvesare not partiesto this actionand thus are not proper counterclaim defendants.Furthermore,un der Fed.R.Civ.P. 13, additional parties can only be joined to an action through a counterclaim when that counterclaim is also assertedagainstan exist ing party. SeeConnellv. Bernstein-McCauley,Inc., 67 F.R.D. 111 S.D.N.Y.l975; Invest-Import v. Seaboard Surety Co., 18 F.R.D. 499 S.D.N.Y.1955;4 Wright & Miller, FederalPrac tice and Procedure§ 1435 1990.

Here, by contrast, Safrin has only joined as third party defendants persons and entities who were not already parties to the litigation. In that same pleading, though, he has also asserted crossclaims against the Stern Defendants, as he is permitted to do under Rule 13(g). Mauney actually supports Safrin’s position. There, the Court held that an original defendant could file a crossclaim against a third party defendant so as to avoid the “anomalous consequences” of having to file a separate action for contribution against that third party defendant. Mauney, 865 F. Supp. at 153-54 (internal quotation marks and citation omitted).

In this case, there is only one common claim asserted against Score (the non-party) and Warner (the party plaintiff) in the Counterclaims [Doc. 204]. As such, Rule 13(h) has no application and Experian's attempt to join Score as a party pursuant to Rule 13(h) is procedurally infirm. See Bathgate, 27 F.3d at 873 (finding that non-party bank directors were properly joined as “additional” parties to a counterclaim because the counterclaim was asserted against the plaintiff and was already before the court); Microsoft Corp. v. Ion Tech. Corp., 484 F.Supp.2d 955, 965 (D.Minn.2007) (finding that defendants could not assert counterclaims solely against individuals who were not parties to the original action). Therefore, allowing Experian to amend their counterclaim as set forth in the Counterclaims Case 2:15-cv-01212-GMS Document 221 Filed 11/21/16 Page 10 of 19 - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FO R A N G LE N N O N P A LA N D E C H P O N ZI & R U D LO FF P C 1 E as t W as h in gt o n S tr ee t, S u it e 5 0 0 P h o en ix , A ri zo n a 8 5 0 0 4 (6 0 2 ) 7 7 7 -6 2 3 0 [Doc. 204] is futile, and Experian’s Second through Four

It is therefore a permissive rather than a compulsory counterclaim. Fed.R.Civ.P. 13(b). As a permissive counterclaim, it is outside the supplemental jurisdiction (28 U.S.C. § 1367(a)

. And as will be explained infra, even if UCFS’s counterclaims are permissive, it is clear that UCFS cannot maintain its counterclaims under Fed.R.Civ.P. 13(b) because “a permissive Counterclaim it must be supported by independent grounds for federal jurisdiction.”

(“The Court rejects those cases which have limited counterclaims in reply to compulsory counterclaims asserted in reply to a defendant’s permissive Case 3:14-cv-00143-JM Document 131 Filed 01/08/16 Page 5 of 25 5 counterclaims. Not one of the cases adopting this rule has explained its rationale, and more importantly none of the cases adopting the rule have examined the consistency of this rule with the plain language of Rules 7 and 13.”).3 As the court in Power Tools & Supply explained, “the words ‘compulsory’ in paragraph (a) and ‘permissive’ in paragraph (b) [of Rule 13] are a description of the rights of the pleader. Neither has any bearing upon the right or duty of the court when a counterclaim is presented.” Id. (quoting Switzer Bros. v. Locklin, 207 F.2d 483, 488 (7th Cir. 1953)). Given there is no distinction between compulsory and permissive counterclaims for the purpose of the form of pleading, “if one may be pleaded in reply, they both may be.” Id. Plaintiffs submit Power Tools & Supply provides the more persuasive rule.

TO DISMISS COMPLAINT AS DUPLICATIVE OR UNDER FRCP 12(b)(6) & 9(b) violating Rule 13(a). Even if antitrust counterclaims did qualify as permissive in the Ninth Circuit (a point Crocs does not concede), if such claims were compulsory in the forum where a prior action was filed, they must be dismissed in any latter-filed action, regardless of the law of the second forum.

The Intervet Action also covers the identical subject matter as this action, namely Merial’s ’594 patent and Intervet’s porcine circovirus vaccine. Since the first-filed Intervet Action seeks a declaratory judgment that Merial’s ’594 patent is invalid and not infringed, Merial’s claim of patent infringement was a compulsory counterclaim under Rule 13(a). Thus, it was improper for Merial to file a separate action for patent infringement in response to the Intervet Action; rather, Merial’s proper course was to answer the Intervet Action, regardless of whether Intervet had yet served its complaint on Merial. The Federal Rules implicitly permit a defendant to file an answer before being served by providing that a civil action is commenced upon the filing of a Complaint, not by service of process.