PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SSMC, INCORPORATED, N.V.,
Plaintiff-Appellee,

v.

TERRI STEFFEN,
Defendant-Appellant,

SINGER FURNITURE ACQUISITION
CORPORATION,
Defendant & Third Party
Plaintiff-Appellant,

and

SINGER FURNITURE COMPANY; DENNIS
                                                    No. 95-3054
AMMONS; CHARLES SHAUGHNESSY;
WILLIAM JOHNSON; EUGENE
MATTHEWS; WILLIAM FOSTER; JOHN
DOES I-XX,
Defendants,

v.

JAMES TING; PHILIP WATSON; SEMI-
TECH GLOBAL, LIMITED (Bermuda);
INTERNATIONAL SEMI-TECH
MICROELECTRONICS, INCORPORATED;
SHINWA COMPANY, LIMITED,
Third-Party Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Chief District Judge.
(CA-93-952-R)

Argued: October 31, 1996
Decided: December 13, 1996

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Williams and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: William Beverly Poff, WOODS, ROGERS & HAZLE-
GROVE, P.L.C., Roanoke, Virginia, for Appellants. John Lawrence
Gardiner, SKADDEN, ARPS, SLATE, MEAGHER & FLOM, New
York, New York, for Appellee. ON BRIEF: Frank K. Friedman, Sara
Bugbee Winn, WOODS, ROGERS & HAZLEGROVE, P.L.C., Roa-
noke, Virginia, for Appellants. Lea Haber Kuck, SKADDEN, ARPS,
SLATE, MEAGHER & FLOM, New York, New York; Dennis P.
Brumberg, BRUMBERG, MACKEY & WALL, P.L.C., Roanoke,
Virginia, for Appellee.

_________________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

This case arises from one aspect of the complex commercial trans-
actions entered into by two sophisticated businessmen, Paul Bilzerian
and James Ting. The parties have presented us with massive filings
detailing their interwoven financial interests. For purposes of this
appeal, however, we set forth only those facts necessary to determine
the issues presented.

I.

James Ting (Ting) is the chairman, president, and chief executive
officer of Semi-Tech Microelectronics (Far East) Limited (STM).

                    2
During the period relevant to this case, SSMC, Inc., a Delaware cor-
poration, and its successor, SSMC, Inc. N.V., a Netherlands Antilles
corporation, were Ting-controlled entities. Ting, through STM, also
owned all of the common stock of the Singer Furniture Company, a
Delaware company (SFC(Del.)) engaged in manufacturing furniture
bearing the Singer trademark.

In May 1989, STM agreed to sell SFC(Del.) to the Singer Furniture
Acquisition Company (SFAC). SFAC was controlled by Paul
Bilzerian (Bilzerian) and his wife, Terri Steffen (Steffen). To effect
this sale, SSMC and SFAC entered into a Share Purchase Agreement.
Under this Agreement, SSMC agreed to sell all of the common stock
of SFC(Del.) to SFAC. On August 2, 1989, SFAC financed the trans-
action by issuing a Promissory Note in the amount of $44.6 million
in favor of SSMC. That Promissory Note was secured by a Stock
Pledge Agreement in which SFAC pledged all of the then-issued
shares of SFC(Del.), as well as "all additional shares of stock." The
Stock Pledge Agreement also provided that SFAC would not "sell or
otherwise dispose of, or grant any option with respect to, any of the
Pledged Collateral." Consistent with the security interest created by
the Agreement, SSMC held the only existing stock certificate for
SFC(Del.).

Under the terms of the Promissory Note, SFAC was to pay SSMC
the entire $44.6 million by March 31, 1990. However, on May 14,
1990, the parties agreed to refinance the Note. Under the Refinancing
Agreement, SFAC would pay $25 million of outstanding debt at a
"First Closing," occurring on the day of the Agreement, May 14,
1990. The remaining balance was to be split into two notes: the origi-
nal Promissory Note, amended to reflect a reduced value of $15 mil-
lion; and a Contingent Promissory Note worth $4.6 million. The
Refinancing Agreement further stated that:

          The Old Note shall become immediately due and payable,
          at the option of the holder, in the event that: (i) less than
          51% of the aggregate of the equity securities (including
          securities exercisable or convertible into equity securities)
          of SFC or of the voting securities of SFC shall be owned of
          record and beneficially by SFAC; or (ii) all or a majority of

                    3
          the assets of SFC shall be sold or a merger or consolidation
          of SFAC or SFC shall occur.

The Refinancing Agreement also provided that a "Second Closing"
would occur, unless agreed otherwise, on the fifth business day fol-
lowing the "Effective Date of the Settlement Agreement."

The "Settlement Agreement" involved an accord among two
Bilzerian-controlled entities, Bicoastal Corporation and Bicoastal
Royalties Corporation, and the Ting-controlled STM and SSMC. This
Agreement, as subsequently amended, resolved some outstanding dis-
putes between the parties subsequent to Bicoastal's bankruptcy filing.
The Agreement addressed the obligations of the parties arising under
previous accords, including a royalties agreement.

Pursuant to the Refinancing Agreement, if the Second Closing had
occurred, the Promissory Note would have been cancelled and
replaced by two Subordinated Notes in the aggregate amount of $15
million. SFAC also would have been released from its obligations
under the Stock Pledge Agreement. But, if no Second Closing
occurred, the Refinancing Agreement provided that the Promissory
Note would be due on August 14, 1993.

The First Closing occurred on schedule in May 1990 and the prin-
cipal amount of the Note was reduced to $15 million. But the Settle-
ment Agreement, the prerequisite for a Second Closing, never became
effective. SFAC contends this was due to SSMC's"lack of good faith
efforts" to obtain bank approval as required in the Settlement Agree-
ment. Brief of Appellants at 29. Regardless of the reason, with no
"Effective Date of the Settlement Agreement," the Second Closing
under the Refinancing Agreement never occurred. As a result, SFAC
was not released from its obligations under the original Promissory
Note.

In the fall of 1991, the board of SFC(Del.), consisting of Bilzerian
and Steffen, formed a subsidiary, Singer Furniture Company of Vir-
ginia (SFC(Va.)). Bilzerian and Steffen became board members of
that subsidiary. After merging SFC(Del.) into SFC(Va.), they dis-
solved SFC(Del.). Although SSMC was the record owner of, and held
a valid stock certificate for, all of the outstanding SFC(Del.) stock,

                    4
and despite the fact that SFAC had pledged not to dispose of the col-
lateral under the Stock Pledge Agreement, SFAC exchanged the
pledged shares for 4,000,000 shares of SFC(Va.) stock. The SFC(Va.)
board, consisting of Steffen and Bilzerian, then voted to redeem
3,900,000 of these 4,000,000 shares held by SFAC. A new share cer-
tificate was issued to SFAC for 100,000 shares. SFC(Va.) subse-
quently redeemed these shares and issued new shares in the name of
individual members of the Board of Directors of SFC(Va.). When all
transactions were completed, reportedly 84 percent of the stock was
held by Steffen, and SSMC's security interest was eliminated.

Because the Second Closing never occurred, SFAC still owed $15
million to SSMC on the $44.6 million Promissory Note, due on
August 14, 1993. SSMC was also entitled to interest on the $15 mil-
lion as provided in § 5.2(b) of the Refinancing Agreement, and in the
Promissory Note. In August 1993, SFAC did not pay SSMC the
remaining $15 million plus interest. SSMC demanded payment, as
well as financial information. SFAC supplied financial reports that
revealed the merger and the elimination of SSMC's security interest
in SFC(Del.). Shortly thereafter, in December 1993, SSMC filed this
action, based on diversity of citizenship against SFAC, Terri Steffen,
and various other officers of SFC (Va.). SSMC alleged that, by means
of the above transactions, SFAC committed fraud, breach of contract,
unjust enrichment, tortious interference with contract, conversion, and
conspiracy. All allegations, save breach of contract, were also lodged
against Steffen. SSMC sought injunctive and declaratory relief, com-
pensatory damages in the amount of "at least $15 million dollars,"
punitive damages, and attorney's fees.

On May 3, 1995, SFAC notified the district court that it had filed
a Chapter 11 petition in the bankruptcy court for the Middle District
of Florida. After a pretrial conference, on May 4, 1995, the district
court issued an order declaring the merger of SFC(Del.) with
SFC(Va.) a "legal nullity." It also declared that SFC(Del.) still
existed, and that all shares of SFC(Del.) belonged to SSMC. In
response to SSMC's request, on May 5, 1995, the court issued a tem-
porary restraining order preventing Steffen from placing SFC(Va.) in
bankruptcy.

Subsequently, SFAC wrote a letter to the court indicating what it
believed to be errors in the May order. In August 1995, SSMC

                    5
responded with its own letter, which set forth its proposal as to how
to resolve outstanding issues. SFAC did not respond to that letter. On
September 1, 1995, the district court held a status conference on the
case. At that conference, SSMC requested that the court enter an
order granting SSMC summary judgment against SFAC on the claim
of breach of the Stock Pledge Agreement and the Promissory Note,
and against Steffen on the conversion claim. Additionally, SSMC
stated that, as its sole remedy for all claims set forth in its Complaint,
it was willing to accept an injunction and declaration that it owned all
SFC(Del.) stock. In response, SFAC indicated that although it
objected to the court's May rulings and reserved those objections, it
offered no objection to SSMC's proposed implementation of the
court's May rulings.

On October 30, 1995, the district court entered a final order, con-
cluding the case as SSMC had proposed. The court granted SSMC
summary judgment against SFAC on the claims of breach of the
Promissory Note and Stock Pledge Agreement and against Steffen on
the conversion claim. The court declared: (1) the attempted merger of
SFC(Del.) into SFC(Va.) was a legal nullity; (2) SSMC was the legal
and beneficial owner of SFC(Del.); and (3) the shares of SFC(Va.)
issued to Steffen were null and void. The court also dismissed
SFAC's compulsory counterclaim.

On appeal, appellants raise a number of issues. We address each in
turn.

II.

SFAC and Steffen maintain that the district court's decision con-
flicts with the Uniform Commercial Code (U.C.C.). Specifically, they
maintain that in holding SSMC to be the owner of SFC(Del.), the dis-
trict court violated Article 9 of the U.C.C. by permitting SSMC "to
have the benefit of a `foreclosure' . . . without complying with the
requirements" of Article 9. Brief of Appellants at 24. At oral argu-
ment before us, SFAC presented a variation of this claim, asserting
that even if the remedy imposed by the district court did not violate
the letter of Article 9, it violated its spirit, because SFAC had no
notice of this remedy. We reject both contentions.

                     6
A.

SFAC asserts that the district court could not declare SSMC the
owner of SFC(Del.) because this remedy is not found in, or sanc-
tioned, by Article 9 of the U.C.C., which governs enforcement of
security interests. Specifically, SFAC contends that the district court
should have limited its remedy to one permitted by the U.C.C., as
interpreted in New York (the choice of law set forth in the Stock
Pledge Agreement).

However, as the Supreme Court noted long ago: "[s]tate law cannot
define the remedies which a federal court must give simply because
a federal court in diversity jurisdiction is available as an alternative
tribunal to the State's courts." Guaranty Trust Co. v. York, 

, 106 (1945). Moreover, a court's equitable powers can extend to
setting aside or enjoining the enforcement of rights purportedly cre-
ated by a tainted transaction. See, e.g., Mills v. Electric Auto-Lite Co.,

, 385 (1970).

There are several other difficulties with SFAC's argument. First,
SSMC did not merely seek to enforce a security interest. Instead,
SSMC pursued eleven causes of action against SFAC, Steffen, and
the other defendants, including non-Article 9 claims such as conver-
sion and unjust enrichment. Although SSMC also brought a claim for
breach of contract on the Stock Pledge Agreement, it did not limit its
remedies to Article 9. Indeed, although SSMC ultimately confined its
request to equitable relief and received only equitable relief, it origi-
nally sought compensatory and punitive damages as well as the equi-
table relief.

Even if SSMC had proceeded solely on the basis of its security
interest under Article 9, the U.C.C. would not prevent SSMC from
pursuing other remedies. Section 9-501(1) of the U.C.C., which sets
forth default procedures, clearly provides that a debtor "may reduce
his claim to judgment, foreclose or otherwise enforce the security
interest by any available judicial procedure." U.C.C. § 9-501 (1972).
This provision does not exclude non-Code remedies. See Ronald A.
Anderson, 9A The Uniform Commercial Code§ 9-501:37 (3rd ed.
rev. vol. 1994) (noting that "[t]he remedies given the creditor by
[Article 9 of] the Code do not exclude non-Code remedies"); 68A

                     7
Am. Jur. 2d, Secured Transactions, § 574 (1993) (same); National
Bank of South Carolina v. Daniels, 

, 691 (S.C. Ct.
App. 1984) (stating that "pre-Code remedies are still available to the
secured party" who seeks to move against collateral in the event of
default).

In fact, since Article 9 creates no substantive cause of action in
favor of the secured party, that party must turn elsewhere to determine
what remedies are available other than foreclosing or securing a judg-
ment. See U.C.C. § 9-501(1); 68A Am. Jur. 2d § 574. In this respect,
Article 9 remedies are cumulative to remedies otherwise available to
the secured party. U.C.C. § 9-501(1); 68A Am. Jur. 2d § 575. This
approach is also consistent with the treatment of remedies in other
portions of the Code. See, e.g., U.C.C.§ 2-719, comment 2 (1977).
(The provision on available remedies "creates a presumption that
clauses prescribing remedies are cumulative rather than exclusive. If
the parties intend the term to describe the sole remedy under the con-
tract, this must be clearly expressed.").

Although a secured party may agree to limit its recourse to certain
remedies, see U.C.C. § 9-501(3), SSMC agreed to no such limitation
in its agreement with SFAC. Rather, the Stock Pledge Agreement
states:

          The Pledgee may exercise in respect of the Pledged Collat-
          eral, in addition to other rights and remedies provided for
          herein or otherwise available to it, all the rights and reme-
          dies of a secured party on default under the Uniform Com-
          mercial Code (the "Code") in effect in the State of New
          York at that time.

(emphasis added). When a creditor such as SSMC does not agree to
waive its non-U.C.C. remedies, it retains those remedies. U.C.C. § 9-
501(1).

Moreover, a federal court's power to enforce a security interest
under Article 9 of the U.C.C. with an equitable remedy is well estab-
lished. See, e.g., Riblet Tramway Co. v. Monte Verde Corp., 

, 319 (10th Cir. 1972) (finding that in a repossession action
enforcing a security interest, "the judge has broad equitable powers

                    8
in designing his judgment"); Bookout v. Atlas Fin. Corp., 395 F.
Supp. 1338, 1339-40 (N.D. Ga. 1974) (In a diversity action to recover
for alleged defaults on notes issued as part of a reinsurance agree-
ment, the court found it within its powers to adjudicate an action
which was "primarily an effort to envoke [sic] the equitable jurisdic-
tion of [the] court to enforce certain security agreements executed to
secure payment of the notes."), aff'd, 

(5th Cir. 1975).1

Thus, the district court did not err in adopting an equitable remedy
that was not specifically set forth in the Uniform Commercial Code.

B.

At oral argument before us, SFAC virtually conceded that the
U.C.C. did not prohibit the district court from imposing the remedy
it chose, but SFAC then pressed a related argument. It asserted that
it was not given notice that the district court intended to allow SSMC
to take possession of SFC(Del.). According to SFAC, for this reason,
the district court's order was at odds with the spirit of the U.C.C.

This argument ignores the facts in this case, which demonstrate
that substantial notice of the proposed remedy was provided to SFAC.
The district court issued its order and memorandum opinion in early
May of 1995. Thus, from that time until the final order was issued on
October 30, 1995, almost six months later, SFAC was on notice
regarding the court's intended action. Moreover, in an August 1995
letter, SSMC set forth its proposed relief. SFAC could have opposed
the proposed relief in writing or at the September 1 status conference.
Instead, when specifically asked for its views by the court at that sta-
tus conference, SFAC did not dispute the resolution proposed in
SSMC's August letter but rather stated "the matters set forth in the
_________________________________________________________________
1 The very cases on which SFAC relies are in accord with these princi-
ples. See, e.g., MTI Sys. Corp. v. Hatziemanual, 

(1989) (The court discussed how a lender, consistent with Article 9, can
retain the collateral in satisfaction of a debt, but never stated that only
U.C.C. remedies apply.); Monroe Capital Corp. v. Pom-Pom Lunch &
Restaurant, Inc., 

(N.Y. Sup. Ct. 1967) (The security
agreement specifically provided that remedies on default were limited to
those provided for in the U.C.C.).

                    9
letter were an accurate reflection of the matters that yet remain."
Although SFAC maintained that it should not have been divested of
its SFC(Del.) stock, it never suggested that the district court should
hold a hearing to determine the value of the SFC(Del.) stock.

Thus, despite SFAC's notice of the court's intended action in the
court below, SFAC never asked that the court assess the value of
SFC(Del.), nor maintained that the court erred in failing to make such
an assessment. Barring exceptional circumstances,"questions not
raised and properly preserved in the trial forum will not be noticed on
appeal." Skippy, Inc. v. CPC Int'l, Inc., 

, 215 (4th Cir.),
cert. denied, 

(1982). No exceptional circumstances are
suggested here.

Even if we were to find SFAC's argument properly preserved for
appellate review, we would conclude that it is doomed by appellants'
own admissions. Bilzerian testified in deposition that as of 1991 the
stock of SFC was worthless. In response to this testimony, SFAC now
asserts that the value of SFC as of 1991 is irrelevant to any determina-
tion of its value at the time of the district court's order in 1995. How-
ever, Steffen's deposition testimony forecloses this argument. She
testified that SFC was losing millions of dollars in 1994, the last
period for which any records were available. Having proclaimed that
SFC was worthless and unprofitable in 1991 and 1994, appellants
cannot now assert that the district court erred in not assessing the
Company's value, particularly when they never requested such a valu-
ation.

III.

SFAC briefly asserts that if this case is not remanded for a valua-
tion hearing, the district court's order should be deemed a recision ab
initio of the transaction in which SFC(Del.) was sold to SFAC.
According to SFAC, the district court actually voided "the $44.6 mil-
lion note . . . for lack of consideration," and so "the $25 million which
SSMC received from the `First Closing' was wrongly received and
should be returned to SFAC." Brief of Appellants at 27-28.

The sheer audacity of this argument is breathtaking. Its merit does
not, however, match that audacity. SFAC is entitled to no refund

                     10
because: (1) the district court did not rescind the original sale and (2)
SSMC did not wrongly receive $25 million.

STM agreed to sell SFC(Del.) to SFAC for $44.6 million. In pay-
ment, SFAC gave SSMC a promissory note for this amount and
pledged all of the stock of SFC(Del.) to SSMC. When SFAC was
unable to pay the entire sum when due, the parties agreed to refinance
the note. As part of this refinancing, SFC caused SFC(Del.) to borrow
$25 million to pay SSMC. This borrowing, of course, diminished the
value of SSMC's collateral. SSMC never received any payment from
any source on the $15 million due on the $44.6 million note. Instead,
when according to Bilzerian, SFC(Del.) was worthless, Bilzerian and
Steffen merged this entity into SFC(Va.), and eliminated SSMC's
security interest in the stock. Then SFAC, Bilzerian, and Steffen
caused SFC to pay hundreds of thousands of dollars in salary and
bonuses to Steffen, although the company was losing money.

In light of these undisputed facts, the district court hardly erred in
refusing to order SSMC to pay SFAC $25 million.

IV.

SFAC next claims that the district court erred in determining that
the Second Closing had not occurred. If the Second Closing had
occurred, the original Promissory Note would no longer have been
valid, and there would have been no SSMC security interest in SFC
stock. SFAC contends that a reasonable jury could have concluded
that the Second Closing did occur.

The basis for this assertion is SFAC's allegation that the Second
Closing did not occur because of SSMC's fraud. Specifically, SFAC
maintains that the Settlement Agreement, and the subsequent Amend-
ment to the Settlement Agreement, never were implemented because
the Amendment required approval from STM's (SSMC's parent com-
pany) banks, and STM never sought such approval. Brief of Appel-
lants at 16. SFAC argues that because SSMC's nonperformance
"contributes materially to the non-occurrence of a condition of one of
[SSMC's] duties, the non-occurrence is excused." 

(citing
Restatement (Second) of Contracts § 245). In other words, since
SSMC assertedly breached its good faith obligations to obtain bank

                     11
approval, and as a result, the Second Closing did not occur, SFAC
maintains that it was allowed to proceed as if bank approval were
obtained and the Second Closing had occurred.

The argument is meritless. STM's asserted fraud may provide the
other partners to the Settlement Agreement, Bicoastal Corporation
and Bicoastal Royalties Corporation, with a breach of contract claim
under the Settlement Agreement against STM.2 However, STM's
asserted fraudulent refusal to implement the Settlement Agreement
does not create a Second Closing when none ever occurred. In deposi-
tion, Bilzerian and other SFAC executives admitted that the Second
Closing never occurred. At oral argument, SFAC's counsel also con-
ceded that the Second Closing did not occur.

The district court did not err in treating as undisputed the fact that
the Second Closing did not occur.

V.

SFAC also contends that the district court erred in determining that
Steffen converted stock of the newly created SFC(Va.). SFAC argues
that Steffen could not be guilty of converting SFC(Va.) stock because
the district court found that the attempted merger of SFC(Del.) with
SFC(Va.) was a "legal nullity." Since the stock of SFC(Va.) was void
as a matter of law, according to SFAC, Steffen could not have been
held liable for converting it.

SFAC mischaracterizes the district court's holding. The court did
not find that Steffen had converted SFC(Va.) stock. Rather, it found
that "defendant Terri Steffen converted SSMC's interest in Singer
Furniture Company, A Delaware corporation." The court never sug-
gested that SFC(Del.) was a "legal nullity."
_________________________________________________________________
2 SFAC itself cannot obtain any relief under the Settlement Agreement
because SFAC was neither a third party beneficiary to the Settlement
Agreement, nor a successor in interest to one of the signing parties.
Bilzerian stated in his deposition that Bicoastal's parent company, BPLP
1, sold SFAC in 1990.

                     12
Nor was there any error in the court's ruling that Steffen converted
the stock of SFC(Del.). Under Virginia law, a conversion is defined
as:

          [A]ny wrongful exercise or assumption of authority . . . over
          another's goods, depriving him of their possession;[and
          any] act of dominion wrongfully exerted over property in
          denial of the owner's right, or inconsistent with it.

United Leasing Corp. v. Thrift Ins. Corp., 

, 905 (Va.
1994) (quoting Universal C.I.T. Credit Corp. v. Kaplan, 

, 365 (Va. 1956)). A "pledgee cannot be deprived of [its] security
by the substitution of other stock for that pledged without [its] con-
sent" and if it is, it may sue for the conversion of the pledged stock.
See 12A William M. Fletcher, Fletcher Cyclopedia of the Law of Pri-
vate Corporations §§ 5645, 5651 (perm. ed. rev. vol. 1993). That
Steffen, without SSMC's knowledge, purported to merge all the stock
of SFC(Del.) into SFC(Va.) and eliminate SSMC's security interest
which was held in 100% of the SFC(Del.) stock, is undisputed. Those
uncontroverted facts provided a sound basis for the district court's
conclusion that Steffen converted SSMC's interest in the SFC(Del.)
stock.

VI.

Finally, SFAC asserts that the district court erred in its ruling
regarding SFAC's amended counterclaim. SFAC itself moved to dis-
miss its counterclaim so it does not complain about the dismissal per
se. But SFAC does contend that the court's ruling that SFAC's coun-
terclaim was compulsory had the effect of a dismissal with prejudice,
and so the court's dismissal of the counterclaim, without prior notice,
was error. See Fed. R. Civ. P. 41(a)(1); Andes v. Versant Corp., 

(4th Cir. 1986). This argument too is meritless.

SFAC had notice of the court's intended action; at the status con-
ference, the court discussed the fact that it proposed to dismiss the
counterclaim. The court indicated that it was dismissing the counter-
claim without prejudice but noted that since SFAC's claim was a
compulsory counterclaim, it had to be pursued in this case. SFAC's
attorney did not object to this characterization of SFAC's counter-

                    13
claim or this legal analysis of the effect of dismissal of a compulsory
counterclaim. This may be because in two earlier pleadings, SFAC
itself had asserted its counterclaim was compulsory. Given that
SFAC's counterclaim was, as it repeatedly stated, compulsory, the
district court was correct in concluding that "a dismissal without prej-
udice [would] have the same effect as a dismissal with prejudice." See
Fed. R. Civ. P. 13(a) advisory committee's note (stating that "[i]f the
action proceeds to judgment without the interposition of a counter-
claim as required by [the rule on compulsory counterclaims], the
counterclaim is barred").

VII.

For all of these reasons, the district court's order is in all respects

AFFIRMED.

                      14