KAREN WELLS ROBY, United States Magistrate Judge
On April 15, 2002, the defendant, Madison River Communications, L.L.C. ("Madison River"), filed a Motion for Leave to Amend Answer (doc. # 12) seeking an order allowing it to amend its answer to assert several counterclaims against the plaintiff. The plaintiff opposes the motion.
I. Factual Background
The plaintiff, Charles Garcia, resigned from his employment at Madison River on November 1, 2001. He filed suit against Madison River in Civil District Court for the Parish of Orleans claiming that he is owed his wages for one week, vacation pay and commissions, and is entitled to statutory penalties and attorney's fees pursuant to LSA-R.S. 23:63 1 and 23:632. The plaintiff filed suit in the Parish of Orleans as a Rule to Show Cause pursuant to Louisiana Code of Civil Procedure Art. 2592, which provides for summary proceedings on such claims. Madison River removed the matter to this Court on January 3, 2002.
One week later, Madison River filed an answer. Thereafter, Madison River flied the instant motion contending that it has since developed information relating to the plaintiff's conduct that provides a good faith factual and legal basis for asserting several counterclaims. Based on the information obtained, Madison River claims that the plaintiff fraudulently negotiated a contract with one of its customers, Digicomm Systems, Inc. ("Digicomm"), on May 26, 2001, in order to wrongfully receive commissions from Madison River. Madison River seeks to assert claims for breach of fiduciary duty, fraud and unfair trade practice and contends that its request should be granted because there has been no undue delay, the claims are viable, made in good faith and no prejudice will result.
The plaintiff opposes the motion contending that Madison River is attempting to File permissive counterclaims along with its amended answer. There is a substantial difference, the plaintiff contends, between a party's right to amend its answer and a party's right to file permissive counterclaims. The plaintiff also contends that the only issue involved in this action is a wage claim and allowing the counterclaims asserted by Madison River would complicate the litigation and cause him undue prejudice. The plaintiff further contends that Madison River has unduly delayed in filing its counterclaims and that the counterclaims are not meritorious. Thus, the plaintiff contends that a separate proceeding should be ordered for Madison River's counterclaims.
II Analysis
Madison River filed the instant motion pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. Generally, Federal Rule of Civil Procedure 15 governs amendments to pleadings, however, Madison River seeks to amend its original answer by asserting several counterclaims against the plaintiff. Such motions are governed by Rule 13. See Fed.R.Civ.P. 13.
The plaintiff contends that Madison River's motion is governed by Rule 13(f). While Rule 13(f) generally applies to counterclaims which were omitted from the original pleading, see Fed.R.Civ.P. 13(f), Rule 13(e) allows a party to supplement its answer, with the Court's permission, to add counterclaims which had either not yet been acquired or had not yet matured at the time of the original pleading. See Fed.R.Civ.P. 13(e). Here, because Madison River claims to have not been aware of the facts giving rise to the counterclaim at the time the original answer was served, the Court finds that Rule 13(e), rather than Rule 13(f) applies. The Court will conduct its analysis accordingly.
Rule 13(f) addresses omitted counterclaims and provides as follows: "[w]hen a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment." Fed.R.Civ.P. 13(f).
A. Compulsory Counterclaims
Rule 13(e) provides that "[a] claim which either matured or was acquired by the pleader after serving a pleading, may, with the permission of the Court, be presented as a counterclaim by supplemental pleading." Fed.R.Civ.P. 13(e). Rule 13 should be read in conjunction with Rule 15 of the Federal Rules of Civil Procedure. See Inline Corp. v. Tricon Restaurants, Int'l., 2002 WL 1331885, *2 (N.D.Tex. 2002). Although the grant or denial of an opportunity to amend is within the Court's discretion, it is well-settled that pursuant to Rule 15, leave to amend should be granted liberally. See Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998). The liberal amendment policy of Rule 15 also applies to requests to add counterclaims pursuant to Rule 13(e). See Inline Corp., 2002 WL at *2.
Despite this liberal approach, a party does not have an absolute right to assert new compulsory counterclaims after having filed its responsive pleadings in the same way that it had a right to assert such compulsory counterclaims in its original answer. See Chrysler Corp. v. Fedders Corp. (S.D.N.Y. 1982) 540 F. Supp. 706, 713. A counterclaim is compulsory "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." Fed.R.Civ.P. 13(a); Tupperware Home Parties v. Stewart, 1993 WL 165773, *3 (E.D.La. 1993).
Further, in order to qualify as compulsory, a counterclaim must be, among other things, a claim that the pleader had at the time it served its original pleading. Nordco, A. S. v. Ledes, 1999 WL 1243883, *10 (S.D.N.Y. 1999). Since a counterclaim filed under Rule 13(e) does not mature until after a party has served his pleading, it is technically not a compulsory counterclaim. Skaro v. Eastern Savings Bank, 866 F. Supp. 229, 233 (W.D.Pa. 1994) (emphasis added); see also Young v. City of New Orleans, 751 F.2d 794, 801 (5th Cir. 1985) ("a counterclaim acquired by the defendant after he has answered will not be considered compulsory even if it arises out of the same transaction as does the plaintiff's claim"); Branch-Hines v. National Tea, Co., 1990 WL 3139 (E.D.La. 1990); see Hilfiger Licensing, Inc. v. Bradlees, Inc., 2001 WL 1702151, *6 (S.D.N.Y. 2001) (citing 3 J.WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 13.14[1] (3d ed. 1999) for the proposition that "A counterclaim that arose from the same transaction or occurrence as the primary claim, but did not accrue or mature until after service of the responsive pleading (i.e. the answer), is not compulsory in the action . . . once the claim matures, however, the pleader may have the option, with leave of court, to bring the claim as a permissive counterclaim."). Here, because Madison River's claims were acquired after it served its original Answer, they are permissive in nature and not compulsory counterclaims that Madison River is automatically entitled to raise. See Hilfiger Licensing, 2001 WL at *5; Branch-Hines, 1990 WL at *2.
The Court notes that even if Madison River was entitled to raise these counterclaims, they fail to meet the compulsory counterclaim test as provided in Tank Insulation Int'l, Inc. v. Insultherm, Inc., 104 F.3d 83 (5th Cir. 1997). To determine whether a counterclaim is compulsory, a court must ask whether: (1) the issues of fact and law raised by the claim and counterclaim largely are the same; (2) resjudicata would bar a subsequent suit on the defendant's claim absent the compulsory counterclaim rule; (3) substantially the same evidence will support or refute plaintiff's claim as well as defendant's counterclaim; and (4) there is any logical relationship between the claim and the counterclaim. See id. at 85-86
A logical relationship exists when the same operative facts serve as the basis of both claims or the aggregate core of facts upon which the claim rests activates additional legal rights, otherwise dormant, in the defendants or when. separate trials on each of the respective claims would involve a substantial duplication of effort and time by the parties and the Courts. Tupperware. 1993 WL at 3 (citing Montgomery Elevator Co. v. Building Engineering Services Co., Inc., 730 F.2d 377, 380 (5th Cir. 1984)).
The plaintiffs claims and Madison River's counterclaims do not involve the same aggregate of operative facts. Although both claims involve the employee — employer relationship, that is the extent of the similarity. The plaintiff's claim involves a claim for back wages while Madison River's claims involve allegations of fraud, unfair trade practices, and breach of fiduciary duties resulting from the plaintiff's handling of the Digicomm account. Thus, these claims involve discrete issues of law and fact. Further, there is no indication that the same evidence will support both claims, particularly since Madison River does not allege that the plaintiffs dealings with the Digicomm account resulted in its withholding the plaintiff's wages.
Thus, although the two incidents are tenuously connected, they involve separate transactions and occurrences and do not have the logical relationship sufficient to convert Madison River's claim into a compulsory counterclaim under Rule 13(a). The Court thus finds that Madison River's counterclaims are permissive.
Having conclusively determined that Madison River's counterclaims are permissive, the Court will consider whether Madison River's claims may be added as permissive counterclaims.
B. Permissive Counterclaims
A permissive counterclaim is one which does not arise out of the transaction or occurrence that is the subject matter of the opposing party's claim. Fed.R.Civ.P. 13(b). While a compulsory counterclaim falls within the supplemental jurisdiction of the federal courts, a permissive counterclaim must have an independent jurisdictional basis. Zurn Industries, Inc. v. Acton Const. Co., Inc., 847 F.2d 234, 237 (5th Cir. 1988); Pouncey v. Government Employees Insurance Co., 2000 WL 628739, *2 (E.D.La. 2000).
A permissive counterclaim in the form of a setoff, if used defensively rather than as the basis for affirmative relief, does not need independent jurisdictional grounds even though the claim is unconnected with the transaction or occurrence on which the main claim is based. Pouncey v. Government Employees Insurance Co., 2000 WL 628739, *3 (E.D.La. 2000). A setoff is a demand asserted to diminish or extinguish a plaintiff's demand that arises out of a transaction different from the one on which the plaintiff has sued. . . . It applies to permissive counterclaims.' Id. A Court may exercise its jurisdiction over a permissive counterclaim alleging a setoff only' when that claim is used defensively, i.e., to reduce or defeat plaintiff's damages award. Id. Here, Madison has not asserted its counterclaim in the form of a setoff. Rather, it has raised its counterclaim as a basis for affirmative relief. Thus, the setoff exception does not apply and the Court must determine whether Madison River's claims rest on an independent jurisdictional basis.
The jurisdictional basis here is diversity. The plaintiff is a resident of Louisiana while Madison River is incorporated under the laws of Delaware and is headquartered and has its principal place of business in North Carolina. However, when asserting a claim based on diversity, to establish federal court jurisdiction the claimant must also satisfy the amount-in-controversy requirement. See 28 U.S.C. § 1332(a). At the time Madison asserted its counterclaims, the amount-in-controversy required was in excess of $75,000, exclusive of interests and costs. See 28 U.S.C. § 1332(a).
The Court notes that as a counterclaim must have an independent basis for jurisdiction, the defendant cannot meet the amount-in-controversy requirements simply because the plaintiff's claim exceeds the amount in controversy requirement. Because a defendant's permissive counterclaim is unrelated to the plaintiff's claim, the counterclaim must also satisfy the requirement. See Curtis v. J.E. Caldwell, 86 ERD. 454, 457 (E.D.Pa. 1980).
The burden of alleging jurisdiction is on the party asserting the claim. Iglesias v. Mutual Life Ins. Co. of New York, 156 F.3d 237, 242 (1st Cir. 1998). However, Madison River has not satisfied this burden. Madison River has not alleged that its claim exceeds any specified sum, nor is its amount ascertainable from the record. Madison River has merely stated that it seeks to recover its economic damages proximately caused by plaintiff's wrongful conduct, including but not limited to: (a) commissions paid to plaintiff for his dealings with Digicomm; (b) expenses it has incurred as a result of Digicamm's attempts to terminate its contractual relationship; and (c) lost profits it would have earned had plaintiff not engaged in the wrongful conduct.
Rec. Doc. No. 12.
Therefore, Madison River has failed to satisfy the amount-in-controversy requirement and no independent jurisdictional basis for its counterclaims exist. Accordingly,
IT IS ORDERED that the Motion for Leave to Amend Answer (doc. # 12) is DENIED.