Opinion
Civil Action No. 02-3797 Section I/3.
February 28, 2005
ORDER AND REASONS
Before the Court is defendant's "Motion to File Suite [sic] and Counterclaims." Pro se defendant, B.W. Brister, seeks to bring Louisiana state law defamation counterclaims against plaintiffs and other individuals who have had involvement with him during the duration of this action. Plaintiffs, Greater New Orleans Fair Housing Action Center, Inc. and Claire Renee Spiller, oppose the motion. Plaintiffs allege that all parties are citizens of Louisiana.
Rec. Doc. No. 44. Defendant did not raise these "counterclaims" in his answer.
Defendant identifies the plaintiffs, Greater New Orleans Fair Housing Action Center, Inc. and Claire Renee Spiller, Spiller's husband Vaughn Spiller, plaintiffs' counsel, Tulane Law Clinic, Logan and Soileau LLC, and Murphy and McKnight LLC, as well as Dr. Henry Rothschild and the LSU Healthcare Network, where Dr. Rothschild independently examined defendant to determine whether the stay should be lifted in this case, as parties against whom he wishes to file counterclaims.
Rec. Doc. No. 46. Plaintiffs contend defendant's motion is "futile" and that the Court would not have subject matter jurisdiction over defendant's counterclaims. Defendant does not include an allegation of facts which would demonstrate that the requirement of subject matter jurisdiction is met with respect to any of the parties. The parties are not diverse, defendant's defamation action would be based on state law, and supplemental jurisdiction is questionable with respect to the parties that defendant seeks to add.
Rec. Doc. No. 1.
Pursuant to Rule 13 of the Federal Rules of Civil Procedure, counterclaims are either compulsory or permissive. See Fed.R.Civ.P. 13(a), (b); Tank Insulation Int'l Inc. v. Insultherm, Inc., 104 F.3d 83, 88 (5th Cir. 1997) (stating "a counterclaim is either compulsory or permissive — it cannot be both"). A defendant's claim against a plaintiff is a compulsory counterclaim if it meets four conditions. "It must: (1) arise `out of the transaction or occurrence that is the subject matter of the opposing party's claim;' (2) be matured and owned by the pleader at the time the pleading is served; (3) not require for its adjudication the presence of third parties over whom the court cannot acquire personal jurisdiction; and (4) not have been, at the time the original action was commenced, the subject matter of another pending action." 20 CHARLES ALAN WRIGHT MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: FEDERAL PRACTICE DESKBOOK § 84 (2002).
Rule 13 states in pertinent part that:
(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader had against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.
(b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.
Fed.R.Civ.P. 13(a), (b) (emphasis added).
In the Fifth Circuit, defamation counterclaims, which are governed by Louisiana law and based on the allegations of a lawsuit or judicial proceeding not yet terminated, are not compulsory under the Federal Rules because they are not mature under Louisiana law. See Young v. City of New Orleans, 751 F.2d 794, 801 (5th Cir. 1985). Therefore, it is plain from the face of defendant's counterclaims that he does not have a compulsory counterclaim for defamation against plaintiffs based on the allegations of their complaint.
Louisiana courts have consistently held "that an action for defamation arising out of allegations made in [a] judicial proceeding, and made against a party to those proceedings, cannot be brought until those proceedings are terminated." Ortiz v. Barriffe, 523 So. 2d 896, 898 (La.App. 4th Cir.) ("Encouraging a countersuit for defamation in each and every lawsuit discourages legitimate claims and burdens the courts unnecessarily."), writ denied, 531 So. 2d 273 (La. 1988); see also Simpson v. Perry, 887 So. 2d 14, 16 (La.App. 4th Cir. 2004).
For these permissive counterclaims, defendant would need to establish an independent basis for subject matter jurisdiction. See Allen v. Leal, 27 F. Supp. 2d 945, 948-49 (S.D. Tex. 1998). Federal question jurisdiction pursuant to 28 U.S.C. § 1331 is not available for defendant's state law defamation claims. Supplemental jurisdiction pursuant to 28 U.S.C. § 1367 is also not available because defendant's defamation claims are not "so related to claims in the action . . . that they form part of the same case or controversy under Article III." See 28 U.S.C. § 1367(a). In this case, defendants' defamation claims and the plaintiffs' claims under the Fair Housing Act are completely separate causes of action. Furthermore, defendant's defamation claims against plaintiffs have not yet arisen pursuant to Louisiana law so they cannot be part of the same case or controversy as required by § 1367(a). Accordingly, in the absence of federal question jurisdiction, supplemental jurisdiction, and diversity jurisdiction, defendant's defamation counterclaims are not within the Court's subject matter jurisdiction. See Young, 751 F.2d at 801.
With respect to defendant's claims against the additional parties, Rule 13(h) would require that these additional parties be joined in the action. However, it is clear that both Rule 13(a) and (b) provide that counterclaims cannot be sued upon unless at least one person being sued is already a party to the action, i.e., an "opposing party." See Fed.R.Civ.P. 13(a), (b). Because defendant's defamation claims are not mature with respect to the existing plaintiffs, there is no opposing party against whom defendant may presently assert a counterclaim for defamation. Therefore, defendant may not assert defamation claims against additional parties as counterclaims. Accordingly,
Again, even if joinder was proper pursuant to the Federal Rules, the Court notes that defendant has provided no basis for subject matter jurisdiction with respect to these additional parties and Rule 13(h) does not provide jurisdiction.
IT IS ORDERED that defendant's motion to file counterclaims is DENIED.