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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1028
`
`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1028
`
`

`

`
`
`Black’s Law Dictionary®
`
`Seventh Edition
`
`Bryan A. Garner
`Editor in Chief
`
`A W
`
`?
`
`WES
`GROUP
`
`ST. PAUL, MINN., 1999
`
`
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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1028
`
`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1028
`
`

`

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`“BLACK'S LAW DICTIONARY" is a registered trademark of WesI
`n U.S. Patent and Trademark Office.
`Group. Registered i
`o. 1933.1951. 1957. 1968. 1979. 1990 WEST PUBLISHING CO.
`COPYRIGHT ©1891.191
`COPYRIGHT © 1999 By WEST GROUP
`610 Opperman Drive
`PO. BOX 64526
`SI Paul. MN 55164—0526
`1—800—32879352
`
`All rights reserved
`Printed in the United StaIes of America
`ISBN 04314-228644
`ISBN 0—314—24130772—deluxe
`
`
`
`
`
`® TEXTIS PRINTED ON 10% POST
`
`CONSUMER RECYCLED PAPER
`
`
`
`RUIZ FOOD PRODUCTS. INC.
`Exhibit 1028
`
`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1028
`
`

`

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`counterclaim
`
`352
`
`y u
`
`usu. also a
`
`nsel.
`
`irney hired to
`)out a lawsuit
`stigation; esp.,
`governmental
`e alleged mis-
`r agency. See
`:UTOR. Cf. spe-
`
`'e lawyers em-
`termed house
`
`iger or lower—
`1eys employed
`esp. someone
`mt aspects of
`barrister who
`
`INSEL.
`
`highly ranked
`led; the lawyer
`case or cases,
`idistrict
`litiga-
`unsel; attorney
`JSEL. — Also
`
`yed by a party
`.hough not the
`is employed to
`management of
`on appeal. 2. A
`1 a law firm,
`:ner, or associ-
`
`l COUNSEL.
`
`counsel. 2. See
`iEL.
`
`y employed by
`in to assist in a
`)lic interest so
`at attorney. Cf-
`
`iey who is ap-
`resent a pro se
`ifendant’s self-
`tandby counse1
`and guidance to
`self-representa-
`'ounsel.
`
`ho represents"1
`1 often used in
`sel. 2. Military
`as a case on the
`
`353
`
`counsel, assistance of. See ASSISTANCE OF
`COUNSEL.
`
`counsel, right to. See RIGHT TO COUNSEL.
`
`counsel and procure. See AID AND ABET.
`
`counsel of record. See ATTORNEY OF RECORD.
`
`counselor. See COUNSEL (2).
`
`count, n. Procedure. 1. The part of an indict-
`ment charging the suspect with a distinct of-
`fense. 2. In a complaint or similar pleading, the
`statement of a distinct claim. Cf. DECLARATION
`(7).
`
`. is in our old law-books used synonymous-
`.
`“This word .
`1y with declaration .
`.
`.
`. But when the suit embraces two
`or more causes of action (each of which of course re-
`quires a different statement), or when the plaintiff
`makes two or more different statements of one and the
`same cause of action, each several statement is called a
`count, and all of them, collectively, constitute the decla-
`ration." 1 John Bouvier, A Law Dictionary 245 (1839).
`
`common count. Hist. In a plaintist plead-
`ing in an action for debt, boilerplate language
`that is not founded on the circumstances of
`the individual case but is intended to guard
`against a possible variance and to enable the
`plaintiff to take advantage of any ground of
`liability that the proof may disclose. O In the
`action for indebitatus assumpsit, the common
`count stated that defendant had failed to pay
`a debt as promised. See indebitatus assumpsit
`under ASSUMPSIT.
`
`general count. A count that states the plain-
`tiff’ 5 claim without undue particularity.
`money count. Hist. A count, usu. founded on
`a simple contract, giving rise to a claim for
`payment of money.
`"Simple contracts, express or implied, resulting in mere
`debts, are of so frequent occurrence as causes of action,
`that certain concise forms of counts were devised for
`suing upon them. These are called the ‘indebitatus' or
`‘money c0unts.‘ " 2 Stewart Rapalje & Robert L. Law-
`rence, A Dictionary of American and English Law 833
`(1883).
`
`multiple counts. Several separate causes of
`action or charged offenses contained in a sin-
`gle pleading or indictment.
`
`Omnibus count (ahm-ni-bes). A count that
`Combines in into one count all money claims,
`Clalms for goods sold and delivered, claims for
`work and labor, and claims for an account
`stated.
`
`selliarate count. One of two or more crimi-
`na Chai'ges contained in one indictment, each
`
`
`
`
`
`charge constituting a separate indictment for
`which the accused may be tried.
`several count. One of two or more counts in
`a pleading, each of which states a different
`cause of action.
`
`special count. A section of a pleading in
`which the plaintiff’s claim is stated with great
`particularity — usu. employed only when the
`pleading rules require specificity.
`
`3. Hist. The plaintiff’s declaration, or initial
`pleading, in a real action. See DECLARATION (7).
`4. Patents. The part of a patent application
`that defines the subject matter in a priority
`contest (i.e., an interference) between two or
`more applications or between one or more ap-
`plications and one or more patents. See INTER-
`FERENCE (2).
`
`count, vb. 1. In pleading, to declare or state; to
`narrate the facts that state a claim. 2. Hist. To
`plead orally; to plead or argue a case in court.
`
`counter. Hist. An advocate or professional
`pleader; one who counts (i.e., orally recites) for
`a client, 0 Counters had coalesced into an iden-
`tifiable group practicing before the Common
`Bench by the beginning of the 13th century.
`They were the leaders of the medieval
`legal
`profession, and over time came to be known as
`serjeants at law. — Also spelled counter; cantor;
`countcur. See SERJEANT AT LAW.
`
`counteraction. See COUNTERCLAIM.
`
`counteraffidavit. See AFFIDAVIT.
`
`counterbond. See BOND (2).
`
`counterclaim, n. A claim for relief asserted
`against an opposing party after an original
`claim has been made; esp., a defendant’s claim
`in opposition to or as a setoff against the plain-
`tiff’s claim. — Also termed counteraction; coun-
`tersuit; cross-demand. -— counterclaim, vb. —
`counterclaimant, n. Cf. CROSS-CLAIM.
`“Under [Fed R. Civ. P.] Rule 13 the court has broad
`discretion to allow claims to be joined in order to expe-
`dite the resolution of all controversies between the par-
`ties in one suit. Rule 13(c) specifically provides that the
`counterclaimant is not limited by recovery sought by the
`opposing party but may claim relief in excess of that
`amount. Further, the general
`legal rule is that it
`is
`immaterial whether a counterclaim is legal or equitable
`hr purposes of determining whether
`it properly is
`brought under Rule 13. .
`.
`. The expectation is that this
`liberal joinder policy will further the elimination of circu-
`ity of action and multiple litigation." 6 Charles Alan
`Wright et al., Federal Practice and Procedure § 1403, at
`15—16 (2d ed. 1990).
`
`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1028
`
`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1028
`
`

`

`compulsory counterclaim. A counterclaim
`that must be asserted to be cognizable, usu.
`because it relates to the opposing party’s
`claim and arises out of the same subject mat—
`ter. 0 If a defendant fails to assert a compul-
`sory counterclaim in the original action, that
`claim may not be brought in a later, separate
`action (with some exceptions).
`permissive counterclaim. A counterclaim
`that need not be asserted to be cognizable,
`usu. because it does not arise out of the same
`subject matter as the opposing party’s claim
`or involves third parties over which the court
`does not have jurisdiction. 0 Permissive coun-
`terclaims may be brought in a later, separate
`action.
`
`counterdeed. See DEED.
`
`counterfeisance (kown—tar-fee-zents). Archaic.
`The act of counterfeiting.
`
`imitate
`copy, or
`counterfeit, vb. To forge,
`(something) without a right to do so and with
`the purpose of deceiving or defrauding; esp, to
`Ina-inuiacl'nrc lake money (or other security)
`that might be used in place of the genuine
`article. 9 Manufacturing fake food stamps is
`considered
`counterfeiting. — counterfeit,
`n. — counterfeit, adj.
`“Literally a counterfeit is an imitation intended to pass
`for an original. Hence it is spurious or false, and to
`counterfeit is to make false. For this reason the verbs
`counterfeit and forge are often employed as synonyms
`and the same is true to some extent of the corresponding
`nouns. No error is involved in this usage but
`it
`is
`important to distinguish between the words as far as
`possible when used as the labels of criminal offenses. In
`the most restricted sense, [clounterfeiting is the unlaw-
`ful making of false money in the similitude of the genu-
`ine. At one time under English statutes it was made
`treason. Under modern statutes it is a felony.” Rollin M.
`Perkins & Ronald N. Boyce, Criminal Law 431—32 (3d
`ed. 1982).
`
`counterfeiter. A person who makes an unau-
`thorized imitation of something (esp. a docu-
`ment, currency, or another’s signature) with
`the intent to deceive or defraud.
`
`(kown-ter-foyl), n. A detachable
`counterfoil
`part of a writing on which the particulars of
`the main part are summarized. O The most
`common example is a Check stub, on which the
`date, the payee, and the amount are typically
`noted.
`
`,_ _
`
`_
`
`354
`
`Counterletters are used when the property is to
`be reconveyed after a period. See simulated
`contract under CONTRACT.
`
`countermand [kown—ter-mand), n. An action
`that has the efftct of voiding something previ-
`ously ordered; a revocation. —— counter-mend
`(kown-l.ar-mand or [mum-J, ob.
`
`counteroffer, n. Contracts. An offeree’s new
`offer that varies the terms of the original offer
`and that therefore rejects the original offer. K
`counteroffer, vb. — counterofferor, n. See
`MIRROR-IMAGE RULE.
`
`counterpart. 1. In conveyancing, :1 correspond-
`ing part of an instrument (the other half of
`the indenture —— the counterpart 7 could not
`be found}. 2. One of two or more copies or
`duplicates of a legal
`instrument (this lease
`may be executed in any number of counter-
`parts, each of which is considered an original>.
`“Formerly ‘part’ was used as the opposite of ‘counter-
`part,‘ in respect to covenants executed in duplicate. but
`now each copy is called a ‘counterpart."’ 2 Stewart
`Rapalje & Robert L. Lawrence, A Dictionary ofArncrican
`and English Law 927 (1883).
`
`counterpart writ. See WRIT.
`
`counterpromise, n. A promise made in ex-
`change for another party‘s promise <a promise
`supported by a counterpromisc is binding in its
`inception>. —- counterpromjse. ob.
`
`counter-roll. Hist. A record kept by an officer
`as a check on another officer’s record. esp. the
`rolls maintained by a sheriff and a coroner.
`
`countersig‘n, vb. To write one’s own name next
`to someone else’s to verify the other signer’s
`identity. — countersig‘nature, n.
`
`countersuit. See COUNTERCLAIM.
`
`countertrade. A type of international trade in
`which purchases made by an importing nation
`are linked to offsetting purchases made by the
`exporting nation.
`“Countertrade is barter in modern clothes. It developed
`rapidly as a form of doing business with the USSR and
`Eastern European nations in the 1970s and 1980s, before
`the major economic and political reforms tended to di-
`minish its emphasis as a means of doing business.”
`Ralph H. Folsom & Michael W. Gordon, International
`Business Transactions § 2.1, at 46 (1985)
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`counterletter. Civil law. A document by which
`a record owner of real property acknowledges
`countervailable subsidy (kown—tar-vayl-a-bel
`V
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`that another actually owns the property. 0
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`sob—se-dee). A foreign government’s subsidy on
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`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1028
`
`RUIZ FOOD PRODUCTS, INC.
`Exhibit 1028
`
`