(1) In General. A pleading must state as a counterclaim any claim that
at the time of its
service the pleader has against any opposing party
when the pleading is
served, if the
it 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
for its adjudication
the presence of third
parties of whom the court cannot acquire jurisdiction.
(2) Exceptions. The
But the pleader need not state the claim
(1) at the time (A) when the action was commenced, the
claim was the subject of another
pending action ,; or
(2) (B) the opposing party brought suit upon the
sued on its claim by attachment or other
process by which the court did not acquire personal jurisdiction to render a
judgment on the pleader on that claim, and the pleader is not stating
a does not assert any
counterclaim under this rule.
counterclaims Counterclaim. A pleading may state
as a counterclaim any
claim against an opposing party not arising out of the transaction or occurrence that is
subject matter of the opposing party's claim.
(c) Relief Sought in a Counterclaim
exceeding or less than opposing
claim. (1) A
counterclaim may or may need not diminish or defeat the recovery
sought by the opposing
party. It may claim request relief exceeding that
exceeds in amount or different differs in
kind from that the relief sought in the pleading of
by the opposing party.
(2) In an action upon contract for the recovery of money only, when the defendant
answer shall not deny the plaintiff's claim but shall set up a counterclaim amounting to less
than the plaintiff's claim, the plaintiff may have judgment as upon default for the excess of
his claim over such counterclaim. In such case, the plaintiff shall file with the clerk of the
court a statement admitting such counterclaim, which statement shall become a part of the
(d) Counterclaim Against the State. These rules
shall do not
be construed to enlarge beyond
the limits now fixed by law expand the right to assert
counterclaims a counterclaim or to
claim credits a credit against the state of North Dakota or
an a state officer or agency
(e) Counterclaim Maturing or Acquired after Pleading.
With permission of
the The court ,
may permit a party who has served a to file a supplemental
pleading may present as asserting
a counterclaim by supplemental pleading a claim that either
matured or was acquired by the
party after the serving an earlier pleading was
(f) Omitted Counterclaim.
By leave of The
court , may permit a pleader who fails to set up
party to amend a pleading to add a counterclaim if it was omitted through
inadvertence, or excusable neglect, or when if justice so
requires , may set up the
counterclaim by amendment.
Cross-claim Crossclaim Against a Coparty. A
pleading may state as a cross-claim
crossclaim any claim by one party against a coparty arising if the
claim arises out of the
transaction or occurrence that is the subject matter either of the original action
or of a
counterclaim therein, or relating if the claim
relates to any property that is the subject matter
of the original action. Such cross-claim The crossclaim may include a
claim that the party
against whom it is asserted coparty is or may be liable to the
for all or part of a claim asserted in the action against the cross-claimant
Joinder of Joining 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 govern the addition of a person as a party to a
(i) Separate trials
-; Separate judgment
Judgments. If the court orders separate trials as
provided in under Rule 42(b), it may enter judgment on a counterclaim
crossclaim may be rendered in accordance with the terms of
under Rule 54(b) when the court
it has jurisdiction to do so to do, even if the opposing
party's claims of the opposing party
have been dismissed or otherwise disposed of resolved.
Rule 13 was amended, effective March 1, 1990; ________________.
Rule 13 is
substantially identical to Rule based on Fed.R.Civ.P.
13 , FRCivP, with the
addition of subdivision (c)(2) and referring to counterclaims against the State, rather than
the United States, in subdivision (d). This rule prescribes procedure to be followed in
use of counterclaims and cross-claims crossclaims.
Rule 13 was amended, effective _______________, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
is derived from N.D.R.C. 1943 § 28-0907
was transferred to
Rule 55, effective ________________.
In 1971, subdivision (a)(2) was added and subdivision (h) was amended to include a reference to Rules 19 and 20.
Rule 13 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Sources: Joint Procedure Committee Minutes of January 24, 2008, pages 18-19;
20, 1989, page 2; December 3, 1987, page 11; September 20-21, 1979, pages 8-9,
Fed.R.Civ.P. 13 , FRCivP.