Opinion
CIVIL ACTION NO. 02-7087.
May 28, 2003
MEMORANDUM AND ORDER
Plaintiff is located in Southampton, Bucks County, Pennsylvania. The defendant PIO Import Export Company LLC is located in Metairie, Louisiana, and the defendant Anhui Light Industries is located in the Republic of China. Plaintiff alleges it made several purchases from the defendant PIO Import Export Company of various office supplies, which were to be supplied by the defendant Anhui Light Industries, and were to be shipped from China to plaintiff's customers in Brazil. Plaintiff claims the goods were defective in various respects, causing plaintiff to incur untoward expenses and loss of profits.
The defendants allege that the items shipped were, for the most part, not defective in any respect and are still being sold and advertised for sale by plaintiff's customers; that plaintiff has been duly credited with appropriate adjustments for defective items, and that plaintiff still owes defendants a lot of money. Defendants have filed a multi-count counterclaim. Count III of the counterclaim alleges claims for fraud against not only the plaintiff, but also another firm, Carmagic Comércio Importaçãoe E Exportação, which plaintiff has purportedly brought into the action as a third-party defendant, under F.R.Civ.P. 14. Plaintiff has filed a motion to dismiss Count III of the counterclaim, and also to dismiss all claims against the third-party defendant because it has not yet been served.
When read in conjunction with the entire pleading, Count III of the counterclaim can reasonably be viewed as asserting that plaintiff's claimed credits amounting to some $64,000, representing that the merchandise was defective; that these representations were knowingly false; and that defendants relied upon these misrepresentations by allowing the claimed credits. Given the low threshold requirements of F.R.Civ.P. 12(b)(6), I am not prepared to dismiss the counterclaim, as to the named plaintiff. It would seem, on the present state of the record, that the defendants' claims against the third-party defendant may be subject to dismissal, inasmuch as the third-party defendant has not been served with anything, and is not yet subject to in personam jurisdiction in this court (apparently, it is a Brazilian firm, located in that country). But it is also reasonably clear that plaintiff lacks standing to assert the rights of the third-party defendant. Plaintiff s motion will therefore be denied.
Plaintiff has effectively denied all of the allegations of Count III of the counterclaim, in response to other counts of the counterclaim. I see no need for further pleading in response to the third count, which will be deemed to have been denied by plaintiff.
An Order follows.
ORDER
_____ AND NOW, this day of May 2003, IT IS ORDERED:
1. Plaintiff's Motion to Dismiss Count III of Defendants' Counter-claim and to Dismiss Defendant's Third-Party Complaint is DENIED.
2. Plaintiff is deemed to have denied all allegations in Count III of the defendants' counterclaim; no further pleading in response will be required.
3. Defendants shall, within 20 days, show cause why the third-party complaint should not be dismissed for lack of personal jurisdiction and/or failure to achieve service of process.