(dissenting).
While disagreement on so technical a subject as the application of the rule concerning compulsory counterclaim is not one to raise an emotional thermometer, Judge McLaughlin and I feel that we should set out the view opposed to the majority of the Court.
The center of the controversy is, of course, Rule 13(a). Moore tells us that the compulsory counterclaim rule has been given a liberal construction1 and the criterion to be applied is “any claim that is logically related to another claim that is being sued on is properly the basis for a compulsory counterclaim * * * ” 2. The “logical relationship” concept has been recently applied, with citation of numerous authorities, in United Artists Corp. v. Masterpiece Productions, 2 Cir., 1955, 221 F.2d 213, 216.
The appellants admit the “logical connection” rule, as indeed they must, but they say there is no logical connection here. Sentry’s suit is against Zion as counsel and director of Sentry and is based upon a claimed breach of fiduciary relationship. That, Zion says, has no logical connection with the ordinary claim for legal services brought by two partnerships in each of which Mr. Zion was a member and for services rendered subsequent to the alleged breach of duty on the part of one of the partners. The appellee responds that this analysis of the case omits the points raised in the Zion answer to Sentry’s suit. We quote the summary in Sentry’s words:
“(a) In consideration for the issuance to Zion of 25,000 shares, Zion agreed that Sentry should be relieved of part of the sum owing for legal services.
“(b) Sentry, recognizing that the issuance of the said 25,000 shares did not compensate Zion in full for legal services voted to issue to Zion and other members of his law firm 100,000 shares of Sentry’s common stock in payment of the balance owed to Zion and the other members of his law firm.
“(c) Zion agreed on behalf of himself and the other members of his law firm to accept said 100,000 shares in payment of the balance due them for compensation for services rendered to Sentry.
“(d) Zion and the other members of his firm agreed upon a division of the 100,000 shares of Sentry’s stock.”
We think we are entitled to look at all the pleadings in endeavoring to give an answer to the question whether there is logical connection between the opposing claims. E. J. Korvette Co. v. Parker Pen Co., D.C.S.D.N.Y.1955, 17 F.R.D. 267, 269. On this issue we are convinced that there is such logical connection and for the very reason given by the appel-lee, Sentry.
The appellants urge another point. They say that the suits removed from state courts should not be dismissed for failure to assert them as counterclaims because they were started under a state practice in which a partnership claim is not a compulsory counterclaim to an action brought against a partner as an individual. So, it is argued, that being the situation in the state court, we should consider the situation to have “jelled” there and when the suits by the partnerships are removed to federal court, willy-nilly, their respective positions in litigation should not be changed thereby.
Rule 81(c), Fed.R.Civ.P. is urged in support of this position. But we are dealing here with the effect of things which occur after removal, namely, motions to dismiss for failure to assert a counterclaim. As to such matters the *36federal rules govern. Kuenzel v. Universal Carloading & Distributing Co., D.C. E.D.Pa.1939, 29 F.Supp. 407. Rule 81, therefore, is being followed in this case.
As to the members of the Zion partnership not yet in federal court, there is no difficulty. As Judge Kirkpatrick pointed out, the other partners to the two Zion partnerships may be joined under the liberal provisions for which the federal rules provide and they are subject to the jurisdiction of the court.
Judge McLAUGHLIN authorizes me to say that he agrees with this dissent.
. 3 Moore, Federal Practice 34 (2d Ed. 1948).
. Moore, op. cit. supra at 33.