Federal Rule of Civil Procedure 13




Go to Rule 13 Essential Points

Rule 13. Counterclaim and Crossclaim

(a) COMPULSORY COUNTERCLAIM.

(1) 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

(B) does not require adding another party over whom the court cannot acquire jurisdiction.

(2) Exceptions. The pleader need not state the claim if:

(A) when the action was commenced, the claim was the subject of another pending action; or

(B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.

(b) PERMISSIVE COUNTERCLAIM. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.

(c) RELIEF SOUGHT IN A COUNTERCLAIM. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.

(d) COUNTERCLAIM AGAINST THE UNITED STATES. These rules do not expand the right to assert a counterclaim—or to claim a credit—against the United States or a United States officer or agency.

(e) COUNTERCLAIM MATURING OR ACQUIRED AFTER PLEADING. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading.

(f) [ABROGATED.]

(g) CROSSCLAIM AGAINST A COPARTY. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.

(h) JOINING ADDITIONAL PARTIES. Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.

(i) SEPARATE TRIALS; SEPARATE JUDGMENTS. If the court orders separate trials under Rule 42(b), it may enter judgment on a counterclaim or crossclaim under Rule 54(b) when it has jurisdiction to do so, even if the opposing party’s claims have been dismissed or otherwise resolved.

Essential Points

 

What is the difference between a counterclaim and a crossclaim?

In a counterclaim a party sues the opposing party that sued it first. Typically this is where a defendant sues the plaintiff. A crossclaim is where a plaintiff or defendant sues a fellow plaintiff or defendant.
  • Looking back at Rule 2, remember that the Federal Rules were designed to create a just, speedy, and inexpensive resolution of civil claims.   As part of this process, the Federal Rules encourage, and often require, claims involving the same parties, or claims that arise from the same underlying events, to be litigated in the same case.  The intention is to save time and money and also avoid inconsistent outcomes by having  the same judge and jury decide these all claims in one litigation.
  • Rule 13 concerns counterclaims and cross claims.
    • Counterclaims are where a party being sued turns around and sues the party that sued it.  For example, often if a plaintiff sues a defendant for breaching a contract then the defendant will counterclaim against the plaintiff for breaching the same contract.
    • Now the defendant is also a counterclaimant and the plaintiff is a counterclaim defendant.
    • The caption of the case will look something like this:

  • There are two types of counterclaims: compulsory and non-compulsory counterclaims.
    • Compulsory counterclaims must be asserted or they are lost forever.  A counterclaim is compulsory if it “…arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim. . . ”  For example, if plaintiff sues defendant for causing a car crash but defendant believes that plaintiff is liable to defendant for the car crash, then defendant must counterclaim against plaintiff.
    • A counterclaim is not compulsory if it would require adding another party over whom the court would not have personal jurisdiction.
    • Even if a counterclaim is permissive, meaning that it is not compulsory because it does not arise from the same underlying occurrence or transaction – – the counterclaim can usually be asserted in the same action.  For example, plaintiff could sue defendant over a car accident but the defendant may assert a counterclaim against the plaintiff for breach of an otherwise unrelated contract.
    • Keep in mind that in a US civil litigation the plaintiff might be sued by another plaintiff or one of the defendants.  In that case, the plaintiff as a counterclaim defendant may have to assert compulsory counterclaims.
  • Crossclaims are different from counterclaims.  In a crossclaim one plaintiff sues another plaintiff or one defendant sues another defendant.
  • Crossclaims are permissive.  A party can assert a crossclaim if the claim arises out of the same transaction or occurrence as a claim already asserted in the action, that is,  the original claim or any counterclaim.  For example, if plaintiff sues defendants A & B in connection with a car accident, A can sue B on grounds that if A is liable to the plaintiff then B is liable to A.
  • Below is a video on counterclaims:

Related Terms: