American Triticale, Inc., an Idaho Corporation, Plaintiff-appellant, v. Nytco Services, Inc., a Minnesota Corporation; Steven Franz,an Individual and a Resident of the State of Oklahoma; J. H.minet & Company, a Canadian Corporation, Authorized to Dobusiness in the United States with Service Agents in Newyork; Lloyd's Underwriters and Insurance Companies, Abritish Corporation, Authorized to Do Business in the Unitedstates with Service Agents in New York; Excess Insurancecompany, Ltd., Harbor Insurance Company, Turegum Insurancecompany Ltc., Union America Insurance Company, Bellefonteinsurance Company, Mentor Insurance Company, Yasuda Fire &marine Insurance, North Atlantic Insurance Company,insurance Company of the State of Pennsylvania, St. Paulfire and Marine Insurance Company; Various Insurancecompanies Authorized to Do Business in the United Stateswith Service Agents in New York; Insurance Companies Ithrough Xx; John Does I Through Xx, Defendants-appellees, 664 F.2d 1136 (9th Cir. 1981)

American Triticale, Inc. (hereinafter "American") appeals the district court's order of partial summary judgment for Nytco Services, Inc. (hereinafter "Nytco") and Steven Franz on several counts in American's third amended complaint.¹  In granting partial summary judgment the court concluded that: (1) American was not the real party in interest pursuant to Fed. R. Civ. P. 17(a)²  and, therefore, was not the proper party to maintain the action; (2) American had agreed contractually to indemnify Nytco against the losses alleged in the suit; and (3) the action was barred by the doctrines of res judicata and collateral estoppel. The district court had jurisdiction on the basis of diversity of citizenship pursuant to 28 U.S.C. § 1332 (1976). For the reasons stated below we reverse the judgment of the district court.

FACTUAL BACKGROUND

On February 1, 1974, American, an Idaho corporation with its principal place of business in Idaho, and Nytco, a Minnesota corporation authorized to do business in Oklahoma, entered into a contract for the "field warehousing"³  of American's grain at a warehouse facility in Turpin, Oklahoma. The purpose of this field warehousing arrangement was to secure a portion of American's grain inventory as collateral for a $750,000 commercial line of credit which American sought from the Irving Trust Company (hereinafter "Irving Trust"), a New York banking corporation.

The contract consisted of several documents⁴  which, collectively, enumerated the duties and responsibilities of the parties. American agreed to sublease to Nytco certain storage facilities in Turpin, Oklahoma, which American had leased from Howard and Dorothy Franz. Nytco agreed to operate a public warehouse at those facilities, accept the grain deposited for storage by American, and issue warehouse receipts covering that grain to Irving Trust. American agreed to undertake the daily operation of the warehouse, supply the labor necessary for the handling, storage, and safekeeping of the grain and bound itself to pay a schedule of storage charges to Nytco.⁵  American also agreed to "indemnify and hold harmless (Nytco) from any financial loss or any other loss, damage, claim, legal liability or expense resulting directly or indirectly from any of the acts of (American), its officers, agents or employees...."⁶ 

In exchange for non-negotiable warehouse receipts issued upon American's grain stored at the Oklahoma warehouse, Irving Trust provided American with a $750,000 line of credit. American actually borrowed $450,000 of this line but defaulted on repayment of the loan. Consequently, Irving Trust filed suit for repayment in the United States District Court for the Southern District of New York on June 10, 1975, and obtained a judgment on September 8, 1976.

On April 1, 1975, Howard and Dorothy Franz, the owners of the Oklahoma warehouse, filed a petition in the district court of Beaver County, Oklahoma, against American and Nytco for failure to pay rent. They sought attachment of the grain stored in the warehouse as satisfaction for the judgment. Nytco answered the petition, denying generally the allegations in the complaint and cross-claimed, seeking to restrain the Franzes from interfering with the possession of the stored grain. Nytco also interpleaded Irving Trust as holder of the warehouse receipts.

American answered and cross-claimed against Howard and Dorothy Franz. It denied generally the allegations in the complaint, alleged that the Franzes defrauded American and converted large amounts of stored grain worth more than $755,000, and demanded an accounting. Irving Trust appeared and contested any attempt to cancel the warehouse receipts.

On May 23, 1979, the Beaver County District Court entered a judgment which dismissed the claims of Howard and Dorothy Franz and those of American for failure to appear. The remaining claims were dismissed upon stipulation of the Franzes, Nytco and Irving Trust. Furthermore, it was stipulated by those same parties that Irving Trust was entitled to receive all funds derived from a judicial sale of the grain at the Oklahoma warehouse.⁷ 

American instituted the present action in the United States District Court for the District of Idaho on February 18, 1976. In its third amended complaint American sought punitive damages and alleged that Nytco and Steven Franz: (1) negligently and intentionally lost or permitted to be removed substantial portions of the stored grain; (2) refused to account for the grain and overcharged American for storage; (3) negligently and in breach of contract permitted American's grain to be co-mingled and rendered unfit for seed purposes; and (4) interfered with an advantageous business relationship. American also alleged that subsequent to the discovery of the grain losses, Steven Franz purchased the remaining grain in breach of his fiduciary duty to American. Nytco and Steven Franz moved for partial summary judgment on May 29, 1979. On October 16, 1979, the district court granted partial summary judgment for Nytco and Franz from which American now appeals.

REAL PARTY IN INTEREST

The district court concluded that pursuant to Article 7 of the Uniform Commercial Code, (hereinafter "U.C.C."), title to the grain accompanied transfer of the non-negotiable warehouse receipts and was held by Irving Trust.⁸  The court held that American was not a real party in interest and could not maintain an action against Nytco or Franz for alleged breach of the field warehousing agreement or tortious conduct involving the stored grain.

Whether American is the real party in interest under Fed. R. Civ. P. 17(a) in this federal diversity suit is dependant upon whether American is a proper party to maintain this action under applicable state law. See Peters v. Lines, 275 F.2d 919, 928 (9th Cir. 1960); Iowa Public Service Co. v. Medicine Bow Coal Co., 556 F.2d 400, 404 (8th Cir. 1977); Virginia Electric & Power Co. v. Westinghouse Electric Corp., 485 F.2d 78, 83 (4th Cir. 1973); 6 C. Wright and A. Miller, Federal Practice & Procedure § 1544, p. 647 (1971). It is well settled that a federal court exercising diversity jurisdiction must apply substantive state law. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Motschenbacher v. R. J. Reynolds Tobacco Co., 498 F.2d 821, 823 (9th Cir. 1974).

Although this action was filed in the Federal District Court in Idaho, the complaint alleges a breach of contract to be performed in Oklahoma and tortious actions which, if true, occurred in Oklahoma. Well-established principles of jurisprudence require that a federal court exercising diversity jurisdiction must apply the conflict-of-laws-rules of the state in which the federal court is located when the laws of more than one jurisdiction arguably apply to the issue to be decided. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021, 85 L. Ed. 1477 (1941); Sarlot-Kantarjian v. First Pennsylvania Mortgage Trust, 599 F.2d 915, 917 (9th Cir. 1979); Strassberg v. New England Mutual Life Insurance Co., 575 F.2d 1262, 1263 (9th Cir. 1978).

We are thus required to consult Idaho conflict-of laws-rules to decide whether the law of Idaho or Oklahoma applies to the question of whether American is a proper party to maintain this suit. We are unaware of any Idaho law which provides an appropriate conflict-of-laws rule with respect to causes of action sounding in contract or tort which arise in a foreign state. We therefore apply general choice of law principles to determine which state's law governs in this situation. See Commercial Insurance Co. of Newark v. Pacific-Peru Construction Corp., 558 F.2d 948, 952 (9th Cir. 1977); Dashiell v. Keauhou-Kona Co., 487 F.2d 957, 960 (9th Cir. 1973) (absent appropriate state law, the Restatement (Second) of the Conflict of Laws provide guidance as to general conflicts principles). Under Section 196 of the Restatement (Second) of the Conflict of Laws (1971),⁹  we apply Oklahoma law to determine whether American has the right to maintain a suit against Nytco and Franz because Oklahoma is the situs of the warehouse facilities where the contract was to have been performed. Similarly, under Section 147 of the Restatement,¹⁰  we apply Oklahoma law to the question of whether American may maintain an action against Nytco and Franz for alleged tortious conduct involving storage of the grain because any intentional or negligent loss of or damage to the grain occurred, if at all, at the Oklahoma warehouse.

In analyzing whether American could maintain this action under state law, the district court recognized that some jurisdictions permit an assignor to remain a real party in interest capable of suing on its own behalf if an assignment of title to the underlying goods has been made to provide a lender with security. See 3A J. Moore, Federal Practice, P 17.09(1.1) (2d ed. 1979). The court concluded, however, that based upon Marker v. Gillam, 54 Okl. 766, 154 P. 351 (1916), Oklahoma was not one of those jurisdictions. We believe that the court erred in its interpretation of Oklahoma law.

In Gillam, George Marker and Francis Garretson contracted for the sale of Marker's land, the conveyance of which was to occur two years later. Shortly after signing the land-sale contract with Marker, Garretson assigned his right under this agreement to Gillam as security for the faithful performance by Garretson of his promise to construct a residence for Gillam. Gillam, as assignee of the land-sale contract, sued Marker for breach of contract when the latter sold the property to another person prior to the conclusion of the two-year period. Gillam prevailed in the trial court. On appeal Marker argued, inter alia, that as assignor of the contract, Garretson was a necessary party to a suit for breach of that contract. The Oklahoma Supreme Court disagreed. In affirming the judgment of the lower court, the Supreme Court held that Garretson was not a necessary party to the action instituted by Gillam, the assignee, because Gillam was the owner of the contract of sale until full completion of the building. In the instant case the district court construed the holding of Gillam as compelling it to hold that an assignor of goods for security is precluded from maintaining an action against a warehouseman for alleged loss of or damage to the collateral. We believe that the district court erred in so broadly construing Gillam.

The Supreme Court of Oklahoma simply did not address the issue of whether one who assigns the title to his property to another as security may maintain an action against a third person for loss of or damage to the assigned property. Nor have the parties been able to point to any Oklahoma Supreme Court decision which directly addresses that issue. Absent such authority, a federal court is obligated to follow a decision of the Oklahoma Court of Appeals "in the absence of convincing evidence that the highest court of the state would decide differently." Stoner v. New York Life Ins. Co., 311 U.S. 464, 467, 61 S. Ct. 336, 337, 85 L. Ed. 284 (1940); see Community National Bank v. Fidelity & Deposit Co. of Maryland, 563 F.2d 1319, 1321 n.1 (9th Cir. 1977).

Although we are unaware of an Oklahoma Court of Appeals decision which has addressed specifically the question at issue, i. e., transfer of field warehouse receipts, that court has addressed an issue so close on point that we find it to be dispositive of the question in the instant case.¹¹  In Kellenberger v. Bob Meyers Moving & Storage Co., 595 P.2d 1229 (Okl.App.1979), the plaintiff stored personal household goods, including furniture, appliances and clothing with a storage company. When Ms. Kellenberger failed to pay storage fees for eight months, the Company notified her that her property would be sold at public auction if her account was not settled by a specified date. Kellenberger thereafter borrowed sufficient funds from a friend and executed an agreement whereby she "sold or assigned" all of her "rights and ownership" in the property to her friend. The agreement provided that "(a)ll future storage and expenses (are) to be paid by the purchaser until satisfactory settlement is made in full, at which time ownership (in the warehoused goods) reverts to Janie E. Kellenberger." 595 P.2d at 1231.

After the storage company refused to accept payment of the tardy fees and sold her property, Ms. Kellenberger instituted an action for conversion against the company. The trial court found for the company and Ms. Kellenberger appealed. On appeal the company contended that Kellenberger was not the real party in interest in the lawsuit because the agreement which she executed affected a transfer to her friend of all of her rights and ownership in the stored property until she repaid the loan. The Oklahoma Court of Appeals reversed the judgment of the trial court. The appellate court held that the plaintiff was the real party in interest and was entitled to prosecute the action because the agreement between Kellenberger and her friend "was not to sell the goods, but rather merely to grant a security interest in them to the plaintiff's friend. (citations omitted)." 595 P.2d at 1231.

In the instant case, none of the parties contend that the purpose of the field warehousing arrangement was to provide for a sale of the grain from American to Irving Trust. Indeed, Nytco and Franz concede that the purpose of the arrangement was to provide security to Irving Trust for the line of credit it offered to American. Nytco and Franz contend, however, that notwithstanding the secured transaction between Irving Trust and American, Article 7 of the Uniform Commercial Code provides that the non-negotiable warehouse receipts issued to Irving Trust transferred title and rights in the underlying grain to the bank.¹²  They assert that a warehouseman owes its obligation and duty of safekeeping only to the holder of the warehouse receipts. Accordingly, Nytco and Franz maintain that the district court was correct in its conclusion that Irving Trust was the entity to whom delivery of the grain was to be made and that only Irving Trust had the right to sue Nytco for non-delivery, loss or damage to the grain.

American contends that the district court erred. American characterizes the agreement between itself and Irving Trust as a pledge of inventory grain as collateral for a commercial line of credit. It asserts that Article 9 of the U.C.C., which governs the creation and perfection of security interests in documents of title and in goods, is applicable to the field warehousing arrangement because that arrangement is a secured transaction.¹³  American argues that under Article 9 it would remain the real party in interest regardless of the transfer of title.¹⁴  We believe that American's position is consistent with Oklahoma law.

In Kellenberger, the Oklahoma Court of Appeals cited 12A Okla.Stat. § 9-102(2) as authority for its holding that Ms. Kellenberger remained a real party in interest even though she transferred title in the warehoused goods to her lender to provide him with security. Although we recognize the differences in the underlying purposes between a field warehousing arrangement and the storage agreement which existed in Kellenberger, we do not find those differences to be of material significance.¹⁵  In both Kellenberger and the instant case, transfer of title to goods occurred to provide a lender with security for a loan. In each case the debtor, who had transferred title in the collateral to the creditor, alleged that the warehouseman unlawfully converted the collateral. Although technically both the creditor in Kellenberger and in the instant case held title to the goods, the debtor in each case maintained a substantial interest in those goods.

We find unpersuasive the argument of Nytco and Franz that Article 7 of the Uniform Commercial Code precludes the suit in the instant case. Article 7 does provide that a warehouseman is liable to "a party to ... a document of title ... for damages caused by the nonreceipt or misdescription of the goods." 12A Okla.Stat. § 7-203.¹⁶  That Article also provides that a warehouseman has a duty to exercise reasonable care in the storage of goods. 12A Okla.Stat. § 7-204.¹⁷  We are unable to find any Oklahoma authority, however, for the proposition that a field warehouseman owes a duty of care only to the creditor to the exclusion of the debtor. Nor does the Article by it terms preclude a suit by the debtor against the warehouseman. Indeed, the "Comment to Official Text" following 12A Okla.Stat. § 7-101 states: "(t)he Article (Chapter) does not attempt to define the tort liability of bailees, except to hold certain classes of bailees to a minimum standard of reasonable care. For important classes of bailees, liabilities in case of loss, damage or destruction, as well as other legal questions associated with particular documents of title, are governed by federal statutes, international treaties, and in some cases regulatory state laws, which supersede the provisions of the Article (Chapter) in case of inconsistency."

Conversely, Article 9 applies "to any transaction (regardless of its form) which is intended to create a security interest in personal property or fixtures including goods, documents, instruments, general intangibles, chattel paper or accounts." 12A Okla.Stat. § 9-102. The Official Comment to that section provides that Article 9 "sets out a comprehensive scheme for the regulation of security interests in personal property and fixtures..." Furthermore, the Comment states, "(t)his Article (9) does not determine whether 'title' to collateral is in the secured party or in the debtor and adopts neither a 'title theory' nor a 'lien theory' of security interests. Rights, obligations and remedies under the Article do not depend on the location of title." (Emphasis added). The principal test whether a transaction comes under Article 9 is whether the transaction is intended to have effect as a security interest. 12A Okla.Stat. § 9-102, Official Comment. Given the material similarities between Kellenberger and the instant case, the fact that the Kellenberger court allowed the assignor of title for security to maintain the action under Article 9 against the warehouseman, and the fact that the Uniform Commercial Code as adopted in Oklahoma does not specifically preclude such a suit, we conclude that Oklahoma law would permit American to maintain this action against Nytco and Franz. Consequently, American is a real party in interest pursuant to Fed. R. Civ. P. 17(a).

INDEMNITY

The district court also granted summary judgment to Nytco and Franz on the basis that American had agreed to indemnify Nytco against liability for the alleged losses pursuant to several indemnity clauses in the written warehousing agreement.¹⁸  American contends that those indemnity clauses do not prevent it from suing Nytco and Franz for intentional tortious conduct such as conversion. Nytco and Franz assert that the parties contemplated that all storage functions would be performed by American and that the agreements provided that American had responsibility for protecting and safekeeping the stored grain. Furthermore, Nytco argues that American agreed to indemnify Nytco for any liability and agreed that persons performing the storage and safekeeping functions would be deemed to be agents of American. Nytco asserts that if any conversion was committed by Stephen Franz, liability would not fall upon Nytco because, pursuant to the agreement, Franz was American's agent.

Franz asserts that he was an employee and agent of Nytco, not American. He argues that he was never a regular employee of American, had never previously been employed as a field warehousing manager, and was specifically hired by Nytco. Franz contends that the broad indemnity provisions of the warehousing agreement which protect Nytco also insulate him from liability as Nytco's agent. We believe that the district court erred in granting summary judgment to Nytco and Franz on the basis of indemnification.

We recognize that the indemnity provisions are broad and extensively protect Nytco from all liability. In Page v. Allison, 173 Okl. 205, 47 P.2d 134 (1935), the Oklahoma Supreme Court held that a warehouseman could not limit its liability for goods which had been deposited and unlawfully converted.

In the instant case the parties agreed that Nytco would be held harmless for "all liability" arising out of the warehousing agreement. Such a provision has a significant business purpose in protecting the warehouseman from liability for damage to or loss of the grain that might be occasioned by American, who had primary responsibility for the storage and handling of the grain. We cannot support the suggestion, however, that Nytco, as the warehouseman, is to be held harmless for intentional torts, including conversion, which it allegedly committed. The risk of loss of or damage to the stored grain from fire, water, natural catastrophe or even negligence can be considered to be within the ordinary contemplation of the parties when they negotiated the indemnity protection for Nytco. Nothing in the agreement, however, supports the conclusion that an intentional conversion by Nytco was intended to be an object of indemnity.¹⁹  We conclude that the indemnity provision in the warehousing agreement does not protect Nytco from liability for intentional torts involving the stored grain.

We also believe that the district court erred in granting summary judgment to Stephen Franz. American and Franz contend that Franz is an employee and agent of Nytco. Nytco contends that Franz is an employee and agent of American. At this stage of the proceedings the nature of Franz's employment relationship is a genuine issue of material fact for which summary judgment is inappropriate. Stansifer v. Chrysler Motors Corp., 487 F.2d 59, 63 (9th Cir. 1973); Fed. R. Civ. P. 56(c).

RES JUDICATA AND COLLATERAL ESTOPPEL

As a third ground for granting summary judgment to Nytco,²⁰  the district court concluded that the doctrine of res judicata precluded American from maintaining this action because of the previous litigation in the district court of Beaver County, Oklahoma. We believe that the district court was in error.

The related doctrines of collateral estoppel and res judicata form a fundamental precept that a "right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction ... cannot be disputed in a subsequent suit between the same parties or their privies...." Southern Pacific R. Co. v. United States, 168 U.S. 1, 48-49, 18 S. Ct. 18, 27, 42 L. Ed. 355 (1897); see Montana v. United States, 440 U.S. 147, 153, 99 S. Ct. 970, 973, 59 L. Ed. 2d 210 (1979). The doctrine of res judicata provides that a final judgment on the merits bars further claims by parties or their privies based on the same cause of action. Montana v. United States, supra, 440 U.S. at 153, 99 S. Ct. at 973; Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S. Ct. 865, 867, 99 L. Ed. 1122 (1955); 1B J. Moore, Federal Practice P 0.405(1), pp. 621-624 (2d ed. 1980); Restatement (Second) of Judgments § 47 (Tent. Draft No. 1, Mar. 28, 1973) (merger); id., § 48 (bar). A judgment in a previous suit is conclusive in a second suit between the same parties or their privies on the same cause of action not only of matters actually litigated but also as to every other ground which the parties might have litigated incident to and within the rubric of the subject matter of the first suit. Mirin v. State of Nevada ex rel. Public Service Commission, 547 F.2d 91, 94 (9th Cir. 1976), cert. denied, 432 U.S. 906, 97 S. Ct. 2952, 53 L. Ed. 2d 1079 (1977); Scoggin v. Schrunk, 522 F.2d 436, 437 (9th Cir.), cert. denied, 423 U.S. 1066, 96 S. Ct. 807, 46 L. Ed. 2d 657 (1975).

To determine if application of res judicata is appropriate in the instant case, we must scrutinize the Beaver County, Oklahoma, litigation and inquire whether the same parties or their privies are attempting to relitigate the same cause of action in the instant case. Whether a person was a party to the prior suit must be determined as a matter of substance and not of mere form. "The essential consideration is that it is the right of the (same person) which was presented and adjudicated in both courts." Chicago, R. I. & P. Ry. Co. v. Schendel, 270 U.S. 611, 46 S. Ct. 420, 70 L. Ed. 757 (1926); 1B J. Moore, Federal Practice P 0.411(1), p. 1253 (2d ed. 1980).

A review of the record demonstrates that although American and Nytco were parties to the Oklahoma suit, they were both defendants to the action filed by Howard and Dorothy Franz; neither American nor Nytco filed a cross-claim against the other.²¹  Accordingly, there was no adjudication of a cause of action between those parties. Res judicata, therefore, is inapplicable to the present action because there was no adjudication between the same parties on any cause of action let alone the same cause of action. See Montana v. United States, supra, 440 U.S. at 153, 99 S. Ct. at 973.

The doctrine of collateral estoppel provides that a determination of an issue actually and necessarily determined by a court of competent jurisdiction is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5, 99 S. Ct. 645, 649, 58 L. Ed. 2d 552 (1979); Montana v. United States, supra, 440 U.S. at 153, 99 S. Ct. at 773; Restatement (Second) of Judgments § 68 (Tent. Draft No. 4, Apr. 15, 1977) (issue preclusion). Nytco contends that the issue of shortages, conversion and breach of duty which are raised in the instant suit, were raised by American in its cross-claim against Howard and Dorothy Franz and adjudicated against American in the Oklahoma suit. Nytco argues that even though the issue of Nytco's culpability for shortages, conversion and breach of duty was not raised by American previously, the fact that American raised the issue in the Oklahoma litigation, albeit with respect to Howard and Dorothy Franz, "necessarily negatives" the claims raised by American in the instant action. We find Nytco's argument unpersuasive.

Even though the issues raised by American in its cross-claim against Howard and Dorothy Franz were adjudicated, we see nothing in that judgment which adjudicated the issue of whether Nytco was responsible for shortages, conversion or breach of duty. If the Oklahoma court had made a finding that no conversion or shortages occurred at all, Nytco could arguably utilize the doctrine of collateral estoppel to prevent relitigation of that issue in a suit by American which alleged that Nytco unlawfully converted the grain. The Oklahoma court made no such finding, however. The most that can be said of the judgment in that case is that Howard and Dorothy Franz did not unlawfully convert the grain. The issue of whether any grain was unlawfully converted or any shortages occurred has not yet been determined.

Nytco also contends that the litigation between Irving Trust and American in the United States District Court for the Southern District of New York precludes the instant suit on the basis of res judicata.²²  We disagree. In the New York litigation, Irving Trust sued American for default of American's obligation to repay the $450,000 which it had borrowed from Irving Trust. Neither Nytco nor Steven Franz was a party to that litigation. Res judicata, therefore, does not prevent American's present suit against Nytco and Steven Franz because the instant suit is not a second suit between the same parties or their privies on the same cause of action. See Montana v. United States, supra, 440 U.S. at 153, 99 S. Ct. at 973.

We also reject Nytco's contention that American is barred by the doctrine of collateral estoppel from asserting damage claims against Nytco. Nytco argues that American was obligated to present allegations of losses of or damage to the grain by way of a compulsory counterclaim under Fed. R. Civ. P. 13(a)²³  in the New York litigation. Nytco maintains that failure to assert this counterclaim precludes the assertion of these claims in the instant case.

Rule 13(a) requires a defendant to file a counterclaim against any "opposing party" if the claim arises out of the transaction or occurrence that is the subject matter of the opposing party's claim. In the New York litigation, Irving Trust was the only opposing party for purposes of deciding whether a counterclaim was mandatory because Irving Trust was the only party which had submitted itself to the jurisdiction of the Federal District Court. See 3 J. Moore, Federal Practice, P 13.06 (2d ed. 1980). Neither Nytco nor Franz was a party to that suit and the court had no jurisdiction over them. Furthermore, the alleged breach of contract and tortious conduct of Nytco and Franz was not related to American's default of its loan obligation to Irving Trust, which was the subject matter of the New York litigation. Because American was not obligated to make a compulsory counterclaim in the New York litigation with respect to the issues involved in the instant case, we will not construe the New York litigation to have adjudicated those issues. We thus conclude that collateral estoppel does not prevent the present suit by American against Nytco.

The judgment is REVERSED.