dissenting.
I respectfully dissent because neither the record nor the case law supports the expansive reading of Rule 13 espoused by the majority. I am, therefore, unwilling to make the leap from the rule’s plain language — “opposing party” — to find that Transamerica should have leveled, its claims against IIC in the litigation brought by North River and U.S. Fire, to which IIC was never a party. If this ruling is left to stand, defendants will act at their peril in. not joining, so as to be able to counterclaim against, any person or entity that has a stake in, or will be bound by, the outcome. This greatly expands the term “opposing party” beyond its clear meaning. I would adhere to the statutory language, especially in the murky fact pattern presented here, and given that “privity” was not argued by the parties, and would reverse the District Court.
Of the few cases that interpret “opposing party,” the majority relies most heavily on Avemco Insurance Co. v. Cessna Aircraft Co., 11 F.3d 998 (10th Cir.1993), the only ease that comes remotely close to providing the basis for enlarging 13(a)’s scope. But the subrogation at issue there is clearly distinguishable from our facts. As subrogee, the insurer “stood in the shoes” of the insured once the claim was paid, a much closer case than the fact pattern here, in which we have no showing that North River and U.S. Fire were in the same position as IIC, or had identical rights and obligations.1
Further, I submit that Judge Holloway’s dissent in Avemco is most persuasive. “Party,” as he pointed out, means “a person whose name is designated on record as plaintiff or defendant,” and “[t]he very concept of a counterclaim presupposes the existence or assertion of a claim against the party filing it.” Id. at 1003 (Holloway, J., dissenting) (internal citations omitted). Moreover, he reasoned, a reading of “opposing party” that includes those not already named parties would impose mandatory intervention, which is not supported by case law or the Federal Rules of Civil Procedure. See id. (citing Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989) (holding that there is no obligation to intervene and pointing to Rule 24’s permissive language), and Montgomery Ward Dev. Corp. v. Juster, 932 F.2d 1378, 1383 (11th Cir.1991) (defendant who did not join and was not obligated to join a prior lawsuit could not “be barred now by a failure to have done so”)).
Curiously, the District Court based its ruling on two opinions of other courts that found that counterclaims were compulsory where they were against an entity that *395was in fact party to the original litigation., There, additional defendants or plaintiffs ■ were named in the second suit, but 13(a) still applied to the entity that was a named' defendant in the first and a named plaintiff in the second. See AMP Inc. v. Zacharias, No. 87 C 3244,1987 WL 12676 (N.D.Ill. June 15, 1987); Rohm & Haas Co. v. Brotech Corp., 770 F.Supp. 928 (D.De.1991). This is not the situation here, where IIC was never a party to the Texas litigation.
The majority further states that a broad reading of “opposing party” is justified by the policy of judicial economy that under- _ lies Rule 13. But I suggest that principles of claim preclusion generally provide suffi- , cient protection against re-litigation of an. adjudicated claim, and we need not turn, this federal rule into a rule of claim preclusion for the sake of judicial economy. While some claim preclusion results from a proper application of Rule 13(a), this prin- ■ ciple should not be employed to expand its . boundaries. The fact that the effect of, failing to plead a counterclaim can be explained in terms of claim preclusion does not mean that the rule’s language should ' be interpreted to equate the two.
Moreover, this is not a proper case in . which to expand, or expound on, the con-. cept of “opposing party” because the record is unclear as to the relationship among IIC, North River, and U.S. Fire. There is' a vague reference to an assignment of ■ rights, but it is not documented. What are • its limits? Is it an assignment for collection? Notwithstanding the majority’s assessment of the facts, namely that North River and U.S. Fire assigned their rights and obligations to IIC, and that IIC conducted the Texas litigation as attorney-in-fact for North River and U.S. Fire, the record fails to reflect the precise relationship among these entities, nor (contrary to the majority’s assertion) does it contain any evidence of “control of litigation” by IIC.2
In fact, IIC had the opportunity to clarify its role in the Texas litigation when Transamerica questioned whether IIC should have brought the action, but IIC, in response, did not join as plaintiff or intervene or indicate that it was an assignee or state that it was in control. Rather, it issued a “Ratification” that stated, “International hereby ratifies the commencement of the above-referenced action by Plaintiffs; authorizes its continuation; and agrees to be bound by the final, non-ap-pealable judgment or award.” Though it distanced itself then, IIC now argues that Transamerica should have counterclaimed against IIC — presumably after having joined it in those proceedings.
In sum, when a federal rule that regulates the way litigation is conducted uses the words “opposing party,” it means just that. In my view, none of the reasons put forth by the majority justifies departure from the plain language of the rule. Accordingly, I respectfully dissent.
. Banco Nacional de Cuba v. First National City Bank of New York, 478 F.2d 191 (2d Cir.1973), is similarly distinguishable. As the majority notes, the court there held that Cuba’s national bank and Cuba “acted as a single entity” and one was the "alter ego” of the other. Id. at 193-94. The court based this conclusion on the facts that a Cuban law declared that the banking function would be exercised only by the state, that the suing bank was occupied by militia commanded by the Banco Nacional, and that the Minister of State was the President of Banco Nacional. There is nothing approaching those circumstances in this case.
. Notably absent from the record is documen- • tation of an actual assignment. Instead, the only evidence is an affidavit from IIC's lawyer, a court order from a case involving IIC . and different parties, and correspondence among counsel. Even where these refer to some transfer of rights, they are unclear as to its precise contours. One letter from IIC's attorney states that IIC took financial responsibility for U.S. Fire and North River policies, but that the policies were not novated to IIC by the policyholders, while other correspondence indicates that certain North River and U.S. Fire policies were "novated or reinsured into IIC.” The evidence of IIC's control of the Texas litigation is similarly vague, consisting only of the affidavit of IIC’s attorney and a passing reference in the Joint Status Report in the Texas litigation.