JEANNE PACE and DAN PACE v. Timmermann’ S Ranch and Saddle Shop Inc.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1940
J EANNE P ACE and D AN P ACE ,
Plaintiffs-Appellants,
v.
T IMMERMANN’ S R ANCH AND SADDLE SHOP
INC., et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Northern Division.
No. 1:13-cv-00818 — James B. Zagel, Judge.
____________________
A RGUED OCTOBER 29, 2014 — D ECIDED A UGUST 4, 2015
____________________
Before R IPPLE , KANNE , and SYKES , Circuit Judges.
R IPPLE , Circuit Judge. In 2011, Timmermann’s Ranch and
Saddle Shop (“Timmermann’s”) brought an action against its
former employee, Jeanne Pace, for conversion, breach of
fiduciary duty, fraud, and unjust enrichment. It alleged that
Ms. Pace had stolen merchandise and money from the
company. Ms. Pace filed her answer and a counterclaim in
early 2011.

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2 No. 14-1940
In 2013, Ms. Pace and Dan Pace, her husband, filed a
separate action against Timmermann’s and four of its
employees, Dan Timmermann, Carol Timmermann,
Dawn Manley, and Tammy Rigsby (collectively “the
individual defendants”). They alleged that these defendants
had conspired to facilitate Ms. Pace’s false arrest. Ms. Pace
alleged that, as a result of their actions, she had suffered
severe and extreme emotional distress. Mr. Pace claimed a
loss of consortium.
Ms. Pace filed a motion to consolidate these two actions.
The court granted the motion with respect to discovery, but
denied the motion with respect to trial and instructed
Ms. Pace that she should request consolidation for trial after
the close of discovery. In the midst of discovery, however,
the district court dismissed Ms. Pace’s 2013 action after
concluding that her claims were actually compulsory
counterclaims that should have been filed with her answer
to the company’s 2011 complaint. Ms. Pace appeals the
dismissal of her 2013 action and the court’s denial of her
motion to consolidate.
We hold that Ms. Pace’s claims against parties other than
Timmermann’s were not compulsory counterclaims because
Federal Rules of Civil Procedure 13 and 20, in combination,
do not compel a litigant to join additional parties to bring
what would otherwise be a compulsory counterclaim. We
also hold that because Ms. Pace’s claim for abuse of process
against Timmermann’s arose prior to the filing of her
counterclaim, it was a mandatory counterclaim. We
therefore affirm in part and reverse in part the judgment of
the district court and remand the case for further
proceedings.

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No. 14-1940 3
I
BACKGROUND
A.
The issues in this case present a somewhat complex
procedural situation. For ease of reading, we first will set
forth the substantive allegations of each party. Then, we will
set forth the procedural history of this litigation in the
district court.
1.
Timmermann’s boards, buys, and sells horses, as well as
operates both a ranch and a “saddle shop,” in which it sells
merchandise for owners and riders of horses. When this
dispute arose, Carol and Dale Timmermann managed
Timmermann’s. Dawn Manley and Tammy Rigsby were
employees of Timmermann’s.
In its 2011 complaint, Timmermann’s alleged that, while
employed as a bookkeeper at Timmermann’s, Ms. Pace had
embezzled funds and stolen merchandise. According to the
complaint, beginning at an unknown time, Ms. Pace
regularly began removing merchandise from Timmermann’s
without paying; she would then sell those articles on eBay
for her personal benefit. Timmermann’s further alleged that
it discovered that Ms. Pace was selling items on eBay
through a private sting operation.
According to the complaint, in February 2011, a
Timmermann’s employee discovered some of the company’s
merchandise in Ms. Pace’s car. At this point, Timmermann’s

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4 No. 14-1940
fired Ms. Pace. Thereafter, during a review of its records,
including the checking account maintained by Ms. Pace,
Timmermann’s discovered that a check that Ms. Pace had
represented as being payable to a hay vendor actually had
been made payable to cash. Timmermann’s also discovered
that, on at least eight occasions, Ms. Pace had utilized the
company’s business credit card to make personal purchases.
2.
In her 2013 complaint, Ms. Pace alleged that her conduct
while working at Timmermann’s was consistent with its
usual course of business. She stated that Timmermann’s had
a practice of allowing employees to use cash to purchase
merchandise at cost or, alternatively, by deducting the
merchandise’s value from the employee’s pay. She maintains
that she had purchased the company’s merchandise under
that established practice. She also alleged that
Carol Timmermann, her supervisor, knew that she had sold
the company’s merchandise at flea markets and never had
objected.
Ms. Pace also maintained that she was instructed to write
corporate checks out to cash and to note the payee in the
check records. Pursuant to those instructions, Ms. Pace had
written checks to cash and recorded the payee and purpose
of the check in the check records. Ms. Pace further alleged
that Carol Timmermann had instructed her to use Carol’s
credit card, which was used as the corporate credit card, for
personal purchases and to reimburse Carol, and not
Timmermann’s, for those purchases.

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No. 14-1940 5
According to Ms. Pace’s complaint, on February 14, 2011,
Dale Timmermann called the Lake County, Illinois, Sheriff’s
Office and accused Ms. Pace of stealing over $100,000 in
merchandise from Timmermann’s. On February 14 and 15,
Dale Timmermann took affirmative steps to convince the
Sheriff’s Office to arrest Ms. Pace by stating that Ms. Pace
had stolen approximately $100,000 in merchandise and that
Ms. Pace had been changing inventory on the computer.
Ms. Pace was taken into custody by the Lake County
Sheriff’s Office on February 15, 2011, and released on
February 16.
Following her release from custody, the individual
defendants continued to provide the Sherriff’s Office with
information about Ms. Pace’s allegedly unlawful conduct.
On March 13, 2012, the State’s Attorney brought charges
against Ms. Pace premised on the information provided by
the company’s employees. Ms. Pace was charged with theft,
forgery, and unlawful use of a credit card.
B.
We turn now to the procedural history of this litigation in
the district court, a history that produced the situation
before us today.
On March 3, 2011, Timmermann’s filed its civil complaint
against Ms. Pace, alleging conversion, breach of fiduciary
duty, fraud, and unjust enrichment. It sought to recover the
value of the merchandise and money that Ms. Pace allegedly
had stolen. Ms. Pace filed her answer and counterclaims on
April 5, 2011.

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6 No. 14-1940
On February 1, 2013, Ms. Pace and Mr. Pace (collectively
“the Paces”) filed a complaint against Timmermann’s and
the individual defendants, alleging that they had conspired
to facilitate Ms. Pace’s false arrest. Ms. Pace alleged that she
had suffered severe and extreme emotional distress; Mr.
Pace claimed a loss of consortium. Specifically, the Paces’
complaint included seven counts: “false arrest/false
imprisonment/in concert liability” (Count I); “abuse of
process” (Count II); “intentional infliction of emotional
distress” (Count III); “conspiracy to commit abuse of process
and intentional infliction of emotional distress” (Count IV);
“in concert activity” (Count V); “aiding and abetting abuse
of process and intentional infliction of emotional distress”
(Count VI); and “loss of consortium” (Count VII). 1 Only four
counts, Counts I–III and Count VII, listed Timmermann’s as
a defendant. The remaining counts were directed at Dale
and Carol Timmermann or the other individual defendants.
On March 15, 2013, Ms. Pace filed a motion to consolidate
the two cases. On April 2, 2013, the district court
consolidated the cases for the purpose of discovery and
pretrial practice. The court denied without prejudice the
motion to consolidate the cases for trial; it stated that it
would rule on a motion to consolidate for trial after
discovery.
On May 2, 2013, Timmermann’s and the individual
defendants moved to dismiss Ms. Pace’s action under
Federal Rules of Civil Procedure 12(b)(6) and 13(a). They
contended that her allegations should have been filed as
1 R.1 at 24, 26–30.

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No. 14-1940 7
compulsory counterclaims in the 2011 action. Thereafter, Ms.
Pace moved to amend her 2011 counterclaim and to
consolidate the cases for trial. The district court set a briefing
schedule for the company’s motion to dismiss and held Ms.
Pace’s motion to consolidate in abeyance.
In December 2013, the district court granted the
company’s motion to dismiss. The court concluded that
Ms. Pace’s separate claims were barred because they were
compulsory counterclaims that should have been brought in
the 2011 action because the claims arose out of the same
transaction or occurrence. Noting that her 2013 complaint
had indicated that the fear of being indicted caused her
emotional distress, the court held that Ms. Pace’s claims
were in existence when the 2011 action was filed; it therefore
rejected Ms. Pace’s argument that her abuse-of-process claim
was not in existence until she was charged. In the district
court’s view, the absence of Mr. Pace and the individual
defendants from the 2011 action did not preclude the court’s
conclusion that Ms. Pace’s claims were compulsory
counterclaims because Mr. Pace and the individual
defendants could have been joined in the 2011 action under
Federal Rule of Civil Procedure 20. 2
II
DISCUSSION
2 Because the court granted the company’s motion to dismiss, the court
denied Ms. Pace’s motion to consolidate without discussion. Ms. Pace
filed a motion for reconsideration of the dismissal, which the court de-
nied on April 10, 2014.

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8 No. 14-1940
The Paces now appeal the dismissal of the 2013 action.
They concede that Ms. Pace’s false arrest and emotional
distress claims against Timmermann’s were compulsory
counterclaims and therefore properly dismissed. They
contend, however, that Ms. Pace’s claims against the
individual defendants and Mr. Pace’s claims for loss of
consortium were not compulsory counterclaims. They also
submit that Ms. Pace’s abuse of process claim against
Timmermann’s did not “exist” when the 2011 action was
filed and therefore could not have been a compulsory
counterclaim.
“We review de novo [a] district court’s grant of a motion
to dismiss.” Thulin v. Shopko Stores Operating Co., LLC, 771
F.3d 994, 997 (7th Cir. 2014); see also Transamerica Occidental
Life Ins. Co. v. Aviation Office of Am., Inc., 292 F.3d 384, 389 (3d
Cir. 2002) (“[W]e review de novo the District Court’s
determination that [the] suit should have been pursued as a
compulsory counterclaim in the [prior] action.”).
A.
Federal Rule of Civil Procedure 13 governs compulsory
counterclaims. Rule 13(a)(1) provides:
In General. A pleading must state as a
counterclaim any claim that—at the time of its
service—the pleader has against an opposing
party if the claim:
(A) arises out of the transaction or
occurrence that is the subject matter of
the opposing party’s claim; and

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No. 14-1940 9
(B) does not require adding another party
over whom the court cannot acquire
jurisdiction.
The text of this subsection limits the definition of
compulsory counterclaim to those claims that the pleader
has against an opposing party; it does not provide for the
joinder of parties. Instead, in a later subsection, it expressly
incorporates the standards set out for the required joinder of
parties under Rule 19 and the permissive joinder of parties
under Rule 20. Specifically, subsection 13(h) provides:
“Rules 19 and 20 govern the addition of a person as a party
to a counterclaim or crossclaim.”
Rule 19 requires that a party be joined if, “in that person’s
absence, the court cannot accord complete relief among
existing parties,” or if proceeding in the party’s absence may
“impair or impede the person’s ability to protect [his]
interest” or “leave an existing party subject to a substantial
risk of incurring double, multiple, or otherwise inconsistent
obligations.” Fed. R. Civ. P. 19(a)(1). In contrast, Rule 20
allows for parties to be joined if “any right to relief is asserted
against them jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence,
or series of transactions or occurrences; and … any question
of law or fact common to all defendants will arise in the
action.” 3 Fed. R. Civ. P. 20(a)(2).
3 Rule 20 also allows for the joinder of plaintiffs if “they assert any right
to relief jointly, severally, or in the alternative with respect to or arising
out of the same transaction.” Fed. R. Civ. P. 20(a)(1).

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10 No. 14-1940
The district court did not hold, and Timmermann’s does
not contend, that the individual defendants named in
Ms. Pace’s complaint were opposing parties under Rule
13(a) in the 2011 action. 4 Nor does the company’s claim that
the individual defendants were required parties under Rule
19. Instead, Timmermann’s submits that, because the district
court could have acquired jurisdiction over the individual
defendants and could have joined them under Rule 20, it was
appropriate to treat Ms. Pace’s claims as compulsory
counterclaims. In essence, Timmermann’s combines the
permissive joinder rule under Rule 20 with the compulsory
counterclaim requirement in Rule 13 to create a rule for
compulsory joinder.
The text of the rules, however, do not permit such an
arrangement. Timmermann’s relies on the text of Rule
13(a)(1)(B), which provides that a claim is not a compulsory
counterclaim if it “require[s] adding another party over
whom the court cannot acquire jurisdiction.” Fed. R. Civ. P.
13(a)(1)(B). From this statement, Timmermann’s devises that,
because the district court could have exercised jurisdiction
over the individual defendants, the claims against them
4 Even if Timmermann’s had argued that the individual defendants were
opposing parties under Rule 13, we would be hesitant to reach that
conclusion. See Transamerica Occidental Life Ins. Co. v. Aviation Office of
Am., Inc., 292 F.3d 384, 391 (3d Cir. 2002) (noting courts have generally
limited their interpretation of “opposing party” to three circumstances:
“[w]here parties are functionally equivalent…, where an unnamed party
controlled the litigation, or where…an unnamed party was the alter ego
of the named party”).

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No. 14-1940 11
must be brought as compulsory counterclaims.
5 Rule 13,
however, does not require the joinder of parties. Its scope is
limited to the filing of counterclaims. Although Rule
13(a)(1)(B), like Rule 19, encourages that all claims be
resolved in one action with all the interested parties before
5 Timmermann’s also invites our attention to Assett Allocation &
Management Co. v. Western Employers Insurance Co., 892 F.2d 566 (7th Cir.
1989). The propositions in that case on which Timmermann’s relies,
however, are dicta. See id. at 571 (noting that, because we concluded that
the district court’s “opinion [did] not establish that the district court had
jurisdiction over Western,” “[w]e could stop”); see also id. at 575
(Ripple, J., concurring). In any event, it is not clear that Asset Allocation
supports the company’s position. Our focus in that case was on the effect
of the additional counterclaim defendants on the counterclaim. We held
that the joinder of additional counterclaim defendants did not make the
otherwise compulsory counterclaim permissive. See id. at 574 (majority
opinion) (“Nor is it material that the counterclaim named additional
parties, besides Asset’s three partners, as counterclaim defendants.”). We
noted that “Rule 13(h) allowed [the additional counterclaim defendants]
to be joined pursuant to Rule 20(a).” Id. Although our opinion does not
state that the additional counterclaim defendants already had been
joined in the action under Rule 20, it is clear that the court, and the
parties, contemplated that they would be joined. See id. at 568, 574
(noting that the counterclaim named the additional defendants). We
went on to note that, in the event that the court did not have personal
jurisdiction over one or more of the additional counterclaim defendants,
the counterclaim would be “permissive as to that defendant.” Id. at 574.
Although our opinion indicates that the counterclaims against the
additional defendants were compulsory, see id.; accord 6 Charles Alan
Wright et al., Federal Practice and Procedure § 1404 (3d ed. 2010) (“An
additional party brought in under Rule 13(h) for the purpose of
responding to a counterclaim also becomes an opposing party.”), we did
not hold that a counterclaim would be compulsory against a defendant
that was not a party to the litigation.

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12 No. 14-1940
the court,
6 Rule 13 fulfils this objective by allowing, not
mandating, that a defendant bring counterclaims that
require additional parties.
7 Whether a party must be joined in
an action continues to be governed only by Rule 19. Rule
13(a)(1)(B) does not transform Rule 20 into a mandatory
joinder rule.
The history of Rule 13 supports our conclusion that Rule
13 does not provide for compulsory joinder. Prior to 1966,
Rule 13(h) read:
When the presence of parties other than
those to the original action is required for the
granting of complete relief in the
determination of a counterclaim or cross-claim,
the court shall order them to be brought in as
defendants as provided in these rules, if
jurisdiction of them can be obtained and their
joinder will not deprive the court of
jurisdiction of the action.
6 Compare Fed. R. Civ. P. 13(a)(1)(B), with Fed. R. Civ. P. 19(a)(1); see also 3
James Wm. Moore et al., Moore’s Federal Practice § 13.16(2) (3d ed. 1997 &
Supp. 2014) (acknowledging the parallels between Rule 13(a)(1)(B) and
Rule 19).
7 See Fed. R. Civ. P. 13 advisory committee’s note to 2007 amendment
(noting that “a party may state as a permissive counterclaim a claim that
does grow out of the same transaction or occurrence as an opposing par-
ty’s claim even though one of the exceptions in Rule 13(a) means the
claim is not a compulsory counterclaim”). The counterclaimant thus can
elect to litigate its claim in a separate forum with all required parties or
as a permissive counterclaim in one forum and as a separate claim in
another forum.

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No. 14-1940 13
As then written, Rule 13(h) was interpreted as an
additional mandatory joinder rule, similar to Rule 19, which
required that necessary parties be joined.
8 To correct this use
of Rule 13, subdivision (h) was amended in 1966 to provide:
“Joinder of Additional Parties. Persons other than those
made parties to the original action may be made parties to a
counterclaim or cross-claim in accordance with the
provisions of Rules 19 and 20.” In the note accompanying
the amendment, the committee noted that Rule 13(h) had
previously failed to reference that Rule 20 allows for the
permissive joinder of parties. The committee continued:
The amendment of Rule 13(h) supplies the
latter omission by expressly referring to Rule
20, as amended, and also incorporates by direct
reference the revised criteria and procedures of
Rule 19, as amended. Hereafter, for the
purpose of determining who must or may be
joined as additional parties to a counterclaim
or cross-claim, … amended Rules 19 and 20 are
to be applied in the usual fashion.
Fed. R. Civ. P. 13 advisory committee’s note to 1966
amendment. 9 The committee note thus highlights the limited
8 See, e.g., United Artists Corp. v. Masterpiece Prods., Inc., 221 F.2d 213, 216–
17 (2d Cir. 1955) (noting that courts require joinder under Rule 13(h) of
necessary or indispensable parties).
9 See also 6 Charles Alan Wright et al., Federal Practice and Procedure § 1434
(3d ed. 2010) (noting that “the Advisory Committee completely redrafted
Rule 13(h) in 1966, making it clear that if a counterclaim or crossclaim
has been properly asserted, then any person whose joinder in the
original action would have been possible under Rule 20, which deals
(continued…)

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14 No. 14-1940
nature of Rule 13, which operates only with regard to claims
and does not mandate or otherwise influence the joinder of
parties. The rule, supported by its accompanying note,
directs litigants to the framework under Rules 19 and 20,
respectively, if they wish to join parties. To hold that Rule 13
compels the joinder of additional parties through the use of
Rule 20 would read the term “opposing party” out of Rule
13(a).
10
(…continued)
with permissive joinder, may be added as a party to the counterclaim or
crossclaim” (emphasis added)).
10 Indeed, during the drafting of the amendments to Rule 13, the drafters
considered the suggestion that more counterclaims be made mandatory
and that “opposing party” be removed from Rule 18. See Benjamin
Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the
Federal Rules of Civil Procedure (II), 81 Harv. L. Rev. 591, 597 (1968). The
drafters replied that “[it] may come to that before long, but rulemakers
must not march too far ahead of the parade.” Id. The drafters never have
adopted such an expansive amendment. See also Elmo Hunter, One Year
of Our Federal Rules, 5 Mo. L. Rev. 1, 9 (1940) (“There was some sugges-
tion to the Advisory Committee that all counterclaims of whatever na-
ture, whether arising out of the same transactions or not, be treated as
compulsory. Since this would force a party to submit all his claims to a
forum of his opponent’s choosing, often complicate pleadings, and force
a party to choose while he may still be in doubt as to the existence of cer-
tain claims and the advisability of litigating them at that time, it was de-
cided best to allow him to use his own judgment as to whether unrelated
claims should be pleaded.”).
We have recognized that Rule 18, which generally governs the join-
der of claims, operates independently from Rule 20. See Intercon Research
Assocs., Ltd. v. Dresser Indus., Inc., 696 F.2d 53, 56–57 (7th Cir. 1982). In
Intercon, we affirmed the district court’s decision “reject[ing] the plain-
tiff’s argument that if the requirements of Rule 18(b) are met with respect
(continued…)

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No. 14-1940 15
Requiring Ms. Pace to bring the claims against the
individual defendants as a counterclaim in the initial action
might well serve judicial economy, but the Federal Rules of
(…continued)
to joinder of a certain claim, then a fortiori joinder of the party against
whom that claim is asserted is permissible under Rule 20(a).” Id. at 56.
We recognized “that Rule 18(b), which deals with joinder of claims, acts
independently of Rule 20(a) which pertains to joinder of parties.” Id. at
57 (footnote omitted). “Thus, joinder of claims under Rule 18 becomes
relevant only after the requirements of Rule 20 relating to joinder of par-
ties has been met with respect to the party against whom the claim is
sought to be asserted.” Id.; see also Charles Alan Wright et al., Federal
Practice and Procedure § 1655 (3d ed. 2001) (“Rule 20 deals solely with
joinder of parties and becomes relevant only when there is more than
one party on one or both sides of the action. It is not concerned with
joinder of claims, which is governed by Rule 18. Therefore, in actions
involving multiple defendants Rule 20 operates independently of Rule
18. Indeed, as is discussed more fully elsewhere, both of these rules were
amended in 1966 to eliminate language that lower courts had interpreted
as restricting the joinder of multiple claims against multiple defend-
ants.”); 4 James Wm. Moore et al., Moore’s Federal Practice § 20.02(6)(a)
(3d ed. 1997 & Supp. 2007) (“Rule 18, governing joinder of claims, per-
mits a claimant to assert all claims that it has against a defending party.
The claims joinder rule does not require that the claims share a common
question or that they be transactionally related. It is, in short, a rule of
unlimited claim joinder. The permissive party joinder rule, on the other
hand, governs party joinder, and, as we have seen, imposes requirements
of transactional relatedness and commonality. These Rules operate inde-
pendently, and party joinder is the antecedent inquiry. Once parties are
properly joined under Rule 20, then Rule 18 permits any claimant to take
advantage of its unlimited joinder provision. (emphasis in original)
(footnotes omitted) (citations omitted)). This distinction, between claims
and parties, is implicit in subsection 13(h) and controls our interpretation
of Rules 13 and 20.

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16 No. 14-1940
Civil Procedure do not require such a result.
11 The Rules
strike a delicate balance between (1) a plaintiff’s interest in
structuring litigation, (2) a defendant’s “wish to avoid
multiple litigation, or inconsistent relief,” (3) an outsider’s
interest in joining the litigation, and (4) “the interest of the
courts and the public in complete, consistent, and efficient
settlement of controversies.” Provident Tradesmens Bank & Tr.
Co. v. Patterson, 390 U.S. 102, 109–11 (1968).
12 The rules
generally allow for a plaintiff to decide who to join in an
action. See Applewhite v. Reichhold Chems., Inc., 67 F.3d 571,
574 (5th Cir. 1995). A plaintiff’s interest in structuring
litigation is overridden only when the prejudice to the
defendant or an absent party is substantial and cannot be
avoided. See Fed. R. Civ. P. 19(b); see also Provident
11 In Martin v. Wilks, 490 U.S. 755 (1989), the Supreme Court rejected
similar policy arguments. The petitioners contended that “[j]udicial
resources will be needlessly consumed” if mandatory intervention was
not imposed under Rules 24 and 19. Id. at 767. In rejecting this
contention, the Court recognized that it was bound by the Federal Rules,
which simply did not require that a party intervene or risk forfeiting
their claim. See id. at 766–67. The Court explained that to accept the
petitioners’ arguments “would require a rewriting rather than an
interpretation of the relevant Rules.” Id. at 767. The Court went on to
note “that the system of joinder presently contemplated by the Rules best
serves the many interests involved in the run of litigated cases.” Id. at
768.
12 See also John W. Reed, Compulsory Joinder of Parties in Civil Actions, 55
Mich. L. Rev. 327, 330 (1957) (stating that “[t]here are three classes of in-
terests which may be served by requiring the presence of additional par-
ties in an action: (1) the interest of the present defendant; (2) the interests
of potential but absent plaintiffs and defendants; (3) the social interest in
the orderly, expeditious administration of justice”).

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No. 14-1940 17
Tradesmens Bank & Tr. Co., 390 U.S. at 124–25. Otherwise, the
threat of duplicative litigation generally is insufficient to
override a plaintiff’s interest in this regard.
Indeed, if Ms. Pace had brought her claim before
Timmermann’s filed suit, she could have chosen to file
separate actions against Timmermann’s and the individual
defendants. See Temple v. Synthes Corp., 498 U.S. 5, 7 (1990)
(per curiam) (noting that “[i]t has long been the rule that it is
not necessary for all joint tortfeasors to be named as
defendants in a single lawsuit”); see also Fed. R. Civ. P. 19
advisory committee’s note to 1966 amendment (stating that
the rule “is not at variance with the settled authorities
holding that a tortfeasor with the usual ‘joint-and-several’
liability is merely a permissive party to an action against
another with like liability” and that the “[j]oinder of these
tortfeasors continues to be regulated by Rule 20”).
13 It makes
13 We note that, in certain factual scenarios, an additional unnamed
counterclaim defendant may be so closely related to the named
counterclaim defendant that the unnamed party should be deemed an
“opposing party” under Rule 13(a). See Transamerica Occidental Life Ins.
Co., 292 F.3d at 390–91. For example, it may have been appropriate to
characterize the individual defendants as opposing parties if the district
court had found that they had been in privity with Timmermann’s. See
id. at 393 (noting that “there is privity between IIC and the Texas
plaintiffs because the Texas plaintiffs assigned IIC their rights with
respect to this litigation”); see also Avemco Ins. Co. v. Cessna Aircraft Co., 11
F.3d 998, 1001 (10th Cir. 1993) (holding that a defendant’s insurer was an
opposing party because “the insurer has controlled the defense in both
actions[ and] there is little to commend allowing the insurer to sit idly by
during the subsequent litigation, only to bring a separate action against
the very same defendant at a later date”). But see Ponderosa Dev. Corp. v.
Bjordahl, 787 F.2d 533, 536 (10th Cir. 1986) (holding that the chief
(continued…)

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18 No. 14-1940
little sense to require Ms. Pace to join the individual
defendants under Rule 20 in order to bring all of her claims
in the same action when, if she initially had been the
plaintiff, she would not have been required to join those
same parties.
14
(…continued)
executive officers of savings and loan associations were not opposing
parties under Rule 13(a) in an action in which the associations were
plaintiffs and counterclaim defendants). We reiterate, however, that
Timmermann’s does not suggest that the individual defendants were
opposing parties under the rule, and the district court did not reach such
a conclusion.
Although a broader interpretation of “opposing party” under Rule
13 might further the policy of judicial economy, such an interpretation
interferes with a plaintiff’s ability to structure litigation in a manner of
his choosing. See Applewhite v. Reichhold Chems., Inc., 67 F.3d 571, 574 (5th
Cir. 1995) (“Generally, permissive joinder of plaintiffs under Federal
Rule of Civil Procedure 20 is at the option of the plaintiffs, assuming they
meet the requirements set forth in Rule 20.”); Hefley v. Textron, Inc., 713
F.2d 1487, 1499 (10th Cir. 1983) (noting that the “joinder of defendants
under rule 20 is a right belonging to plaintiffs” and that “a defendant can
not use rule 20 to join a person as an additional defendant”); 4 James
Wm. Moore et al., Moore’s Federal Practice § 20.02(2)(a)(i) (3d ed. 1997 &
Supp. 2014) (“The defendant has no right to insist that the plaintiff join
all persons who could be joined under the permissive party joinder
rule.”); see also Richard D. Freer, Avoiding Duplicative Litigation:
Rethinking Plaintiff Autonomy and the Court’s Role in Defining the Litigative
Unit, 50 U. Pitt. L. Rev. 809, 826–27 (1989). Interpreting the term
“opposing party” broadly would require that parties be added under
Rule 20, effectively transforming the permissive joinder rule into one of
compulsory joinder. As previously noted, Rule 13(h) was amended to
correct and avoid such an interpretation.
14 See James Wm. Moore et al., Moore’s Federal Practice § 20.02(2)(b)(i) (3d
ed. 1997 & Supp. 2013) (“On the other hand, a defendant who files a
(continued…)

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No. 14-1940 19
Timmermann’s recognizes that Rule 20 does not require a
litigant to join additional parties. 15 Therefore, because a party
is not required to join additional parties under Rules 13 or 20,
the district court erred by barring Ms. Pace’s claims against
the individual defendants and Mr. Pace’s claims for failing
to join them when she brought her counterclaim.
(…continued)
counterclaim or crossclaim in the pending case is treated as a plaintiff for
purposes of permissive party joinder. The Rule puts defendant-claimants
on the same footing as original plaintiffs in choosing party structure.”
(footnotes omitted)).
15 One commentator has explained:
In either event, [Rule 20] is a permissive rule. Although
universal employment of the permissive party joinder
rule, by joining all interested parties, would virtually
eliminate duplicative litigation, the plaintiff is not
required to join all potential litigants. Moreover, the
defendant has no right to insist that the plaintiff join all
persons who satisfy the permissive party joinder
standard. This is why such parties are referred to as
“proper” parties—they may be joined, but need not be.
The fact that the plaintiff has the choice of whether (and
to what extent) to use the permissive party joinder rule
creates tension between a respect for plaintiff autonomy
in structuring litigation and the systemic interest in
judicial economy. While the permissive party joinder
rule embraces plaintiff autonomy, other joinder
provisions of the Rules may permit a defendant to
override the plaintiff’s structuring of the litigation.
4 James Wm. Moore et al., Moore’s Federal Practice § 20.02(1)(b) (3d ed.
1997 & Supp. 2014) (footnote omitted) (citations omitted).

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20 No. 14-1940
B.
We turn now to whether the district court appropriately
characterized Ms. Pace’s claim against Timmermann’s for
abuse of process as a compulsory counterclaim. Ms. Pace
submits that her abuse of process claim did not exist until
there was “process” in the form of an information or
indictment. She contends that the facts alleged in the 2013
complaint that occurred before she was charged only
demonstrated one element of the claim, the defendants’
mens rea. “In order to be a compulsory counterclaim, Rule
13(a) requires that a claim … exist at the time of pleading….”
Burlington N. R.R. Co. v. Strong, 907 F.2d 707, 710 (7th Cir.
1990). Thus, “a party need not assert…a compulsory
counterclaim if it has not matured when the party serves his
answer.” Id. at 712.
Under Illinois law, “[t]he only elements necessary to
plead a cause of action for abuse of process are: (1) the
existence of an ulterior purpose or motive and (2) some act
in the use of legal process not proper in the regular
prosecution of the proceedings.” Kumar v. Bornstein, 820
N.E.2d 1167, 1173 (Ill. App. Ct. 2004) (emphasis in original).
Although neither an indictment nor an arrest is a necessary
element to bring an abuse of process claim under Illinois
law, a plaintiff is required to plead some improper use of
legal process. See id. To satisfy this requirement, a plaintiff
must plead facts that “show that the process was used to
accomplish some result that is beyond the purview of the
process.” Id. In most circumstances, this requirement is met
through an arrest or physical seizure of property. See id.
(noting that “the relevant case law generally views an actual

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No. 14-1940 21
arrest or seizure of property as a sufficient fact to state a
claim of abuse of process” (emphasis in original)).
Ms. Pace was arrested on February 15, 2011. The
company’s 2011 complaint was filed on March 3, 2011, and
Ms. Pace filed her answer and counterclaim on April 5, 2011.
Consequently, the only fact not in Ms. Pace’s possession at
the time she filed her answer was the March 13, 2012
information. Illinois courts are clear, however, that an arrest
is sufficient to bring an abuse of process claim. See id. Ms.
Pace’s abuse of process claim therefore matured when she
was arrested, which occurred before she filed her responsive
pleading. Her failure to raise the abuse of process claim as a
counterclaim along with her answer therefore contravenes
Rule 13.
Indeed, in alleging an abuse of process, Ms. Pace
primarily relies on her 2011 arrest, and not on the fact that
she was charged. The complaint alleges that the defendants
intentionally injured and caused injury to Ms. Pace by giving
“false information to law enforcement and explicitly or
implicitly urg[ing] the arrest and/or the indictment of
[Ms. Pace].”
16 The complaint makes it clear that Ms. Pace
could have brought her claim following her 2011 arrest, and
thus, her abuse of process claim matured at that time.
Because we conclude that the district court erred in
dismissing both Ms. Pace’s claims against the individual
defendants and Mr. Pace’s claims, we need not address the
party’s arguments about Ms. Pace’s motion to consolidate.
16 R.1 at 25.

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The district court will have the opportunity to consider the
motion to consolidate on remand.
Conclusion
We conclude that the district court erred in dismissing
the Paces’ 2013 complaint in its entirety. Because neither Rule
13 nor Rule 20 provide for compulsory joinder, Ms. Pace’s
claims against the individual defendants and Mr. Pace’s
claims for loss of consortium were not compulsory
counterclaims. Ms. Pace’s abuse of process claim against
Timmermann’s was in existence when Ms. Pace filed her
2011 answer and counterclaim, and therefore the district
court was correct to bar her subsequent abuse of process
claim against Timmermann’s. The judgment of the district
court is therefore affirmed in part and reversed in part and
the case is remanded for proceedings consistent with this
opinion. Ms. Pace may recover her costs in this appeal.
AFFIRMED IN PART, REVERSED AND
REMANDED IN PART

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