JOHN R. BROWN, Circuit Judge.
This appeal brings into focus the relationship between F.R.Civ.P. 12(b)
Two suits are involved — the first brought by Lawhorn, and the second, by Atlantic Refining. While this appeal tests only the validity of the rulings in the second suit, the rulings of the first suit are of controlling importance and so vital to the understanding of those questioned here that a summary of Lawhorn's original suit is essential.
Lawhorn was a "jobber" for Atlantic in Georgia. This relationship was to continue from July 1, 1959 to June 30, 1962, and thereafter from year to year unless terminated by either party at the end of the original term or of any subsequent contract year. This contract contemplated that Lawhorn would purchase petroleum products from Atlantic to be distributed to various retail outlets in a specified territory. The price provided in the written contract was flexible, but was apparently to be the same for Lawhorn as for Atlantic's other distributors.
All went well until February 25, 1960, when Lawhorn filed the first suit against Atlantic for $168,330.00 damages. The basis for this first suit was that Atlantic had breached the distributorship contract, as modified by contemporaneously executed supplemental agreements which would give him a lower price than other distributors enjoyed.
Atlantic filed a motion to dismiss for failure to state a claim upon which relief could be granted, F.R.Civ.P. 12(b) (6). This motion was granted sustaining Atlantic's theory that because of the parol evidence rule Lawhorn could not prevail on his claim for breach of a written contract as modified by the alleged parol agreements. The suit was dismissed on August 15, 1960. Atlantic filed no pleadings other than the motion to dismiss. No appeal was taken from that judgment.
The second stage of this litigation, and the initial step in this case, began on December 8, 1960, when Atlantic filed the second suit in the Middle District of Georgia against Lawhorn for $17,378.78 on an open account. Other relief not in issue here was also requested. Summary judgment for Atlantic was entered for $17,378.78.
The accuracy of the open account relating to products sold by Atlantic to
Both parties, with supporting affidavits, moved for summary judgment. Atlantic's motion was granted and Lawhorn's motion denied. The judgment reciting that "* * * the matter contained [in those defenses] having been previously adjudicated," Lawhorn's second and third defenses were dismissed. To Lawhorn's contention that the first suit had likewise foreclosed Atlantic since it had not therein filed its open account demand as a counterclaim, the trial Judge ruled that Atlantic was not required to assert this present open account claim as a compulsory counterclaim in the prior suit "* * * inasmuch as no answer was ever filed by the Atlantic in the other [first] case and that other [first] case was controlled solely on the basis of a motion to dismiss."
From those rulings Lawhorn appeals.
So far as we can ascertain no Court of Appeals has yet decided the question whether a 13(a) compulsory counterclaim must be filed where a 12(b) (6) motion to dismiss the complaint for failure to state a claim has been granted. The two federal District Courts that have considered the question have reached opposite answers.
Undoubtedly, the general rule — as F.R.Civ.P. 13(a) plainly implies — is that one who has a counterclaim arising out of the same transaction or occurrence and does not advance it will be thereafter precluded from asserting it. This rule is predicated on the policy that all such related disputes between the parties should be settled in a single lawsuit.
Taking the Rules at face value, it is clear that a plaintiff must have a claim before a defendant is required to assert a compulsory counterclaim. A counterclaim must be pressed only when it is related to the "* * * subject matter of the opposing party's claim * * *." F.R.Civ.P. 13(a) (emphasis added). That is what makes it a counterclaim. And it is only to such a counterclaim that the Rule attaches a compulsory character. When Atlantic's motion to dismiss was successful, it was a judicial determination that Lawhorn had no claim upon which relief could be granted. If there was no claim, no counterclaim was required.
But going further, if the counterclaim is one which must be asserted, i. e. is compulsory, then it must be set forth in a pleading. Rule 12(b) makes a clear distinction between a pleading and certain motions, including a motion to dismiss. The Rule gives the party the option of asserting this defense by way of a pleading or a motion in these words: "* * * except that the following defenses may at the option of the pleader be made by motion: * * * (6) failure to state a claim upon which
After such a motion to dismiss for failure to state a claim is made, there is no reason to file any other pleadings until the motion is acted upon. If the motion is granted, no further pleadings will be necessary. If the motion is denied, time is allotted in which to file an answer.
This is borne out by Rule 12(a) which provides that the ordinary time periods are altered when the motions allowed in 12(b) are used. The Rule prescribes that "* * * if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the court's action; * * *." (emphasis supplied). Therefore, if the motion to dismiss had been denied, Atlantic would still have had 10 days in which to file its counterclaim or other pleadings. But in this case the motion was granted, which amounted to a judicial declaration that Lawhorn had no claim. The failure of Atlantic to file its "counterclaim" at the time of its motion to dismiss did not then precipitate the coercive sanctions of Rule 13(a) since Rule 12(a) authorizes the postponement of all "responsive" pleadings. And once the motion to dismiss was sustained there was no suit or claim or demand to which any "responsive" pleading had to be filed.
Furthermore, the principle back of Rule 13(a) of concluding all related controversies in one suit must take into some account the equally valid and general proposition that a claimant should be able to choose his own forum.
When it comes to the subsidiary question whether summary judgment was proper, Atlantic's supporting affidavit was sufficient to show the accuracy and validity of the open account. It was stated in the form required by Rule 56(e) as though the employee in charge of the books, records and accounts were testifying on the stand. It made a prima facie case showing that there was no genuine issue of fact concerning dates, times and quantities, prices charged and payments made. Lawhorn's reply affidavit did not undertake to set forth any factual details as to any such facets. It was a mere paper denial and as such was insufficient to avoid summary judgment. Bruce Construction Corp. v. United States, 5 Cir., 1957, 242 F.2d 873. So far as the controverting affidavit undertook, in like conclusory terms, to assert that the gasoline was inferior in quality, no different result is required. As the affidavit itself states in so many words, supplying gasoline of inferior quality was not what Lawhorn contracted to purchase or Atlantic to sell. In short, this showed a
"Atlantic agrees to bill and Buyer agrees to pay for Atlantic Imperial at Atlantic's contract price for distributors as posted for these products on date of shipment at Jacksonville, Florida District Office for delivery to ............, Georgia.
"For example, Atlantic's contract price for distributors as posted at Jacksonville, Florida, District office today 4 June 1959 for delivery to Sylvester, Georgia is 14.15¢ per gallon for Atlantic Regular and 17.15¢ per gallon for Atlantic Imperial, exclusive of all taxes."