Crivello v. Four Brothers, Inc.

DECISION AND ORDER MYRON L. GORDON, District Judge. The defendant in this anti-trust action seeks an order making John Mullarkey and Golden Chicken Operators Association, Inc. additional parties to the sixth, seventh, and eighth counterclaims contained in the defendant’s answer. The plaintiffs do not oppose the addition of Mullarkey as a party but object to the addition of Golden Chicken Operators Association, Inc. The seventh and eighth counterclaims allege a conspiracy between the named plaintiffs and Golden Chicken to infringe the defendant’s service mark, to engage in acts of unfair competition, and otherwise destroy the defendant’s business. The principal objections of the plaintiffs to the addition of Golden Chicken are (1) that Golden Chicken is a non-stock, nonprofit organization which has not yet technically qualified as a Wisconsin corporation; (2) that the incorporators of Golden Chicken are already parties to the action; and (3) that the addition of Golden Chicken will further complicate an already complex action. Rule 13(h), Federal Rules of Civil Procedure, authorizes the joinder of additional parties to an action in accordance with the provisions of Rules 19 and 20, Federal Rules of Civil Procedure. It is undisputed that Golden Chicken is a proper party under the provisions of Rule 20, Federal Rules of Cilvil Procedure, and that service could be accomplished under Wis.Stats. § 181.10 (1969). The conspiracy charged in the seventh and eighth counterclaims is asserted against all of the named plaintiffs and Golden Chicken. As such, Golden Chicken would appear to be a necessary party required to be joined under Rule 19, Federal Rules of Civil Procedure. Klinzing v. Shakey’s Incorporated, 49 F.R.D. 32 (E.D.Wis. 1970). Therefore, it is ordered that John Mullarkey and Golden Chicken Operators Association, Inc. be made parties to this action.