RULE 13. COUNTERCLAIM AND
(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 if: (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 personal
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 the
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 by his
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
(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 served.
Omitted Counterclaim. By leave of court, a pleader who fails to set up a counterclaim
through oversight, inadvertence, or excusable neglect, or when justice 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 cross-claimant crossclaimant
for all or part of a claim asserted in the action against the cross-claimant crossclaimant.
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 counterclaim
(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 or cross-claim
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 the
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.
Subdivision (f), which set out standards for amending pleadings to add a counterclaim, was abrogated, effective ______________, to track the 2009 federal amendment. The subdivision was redundant of Rule 15, which sets out standards for amending pleadings in general.
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; April 20, 1989, page 2; December 3, 1987, page 11; September 20-21, 1979, pages 8-9,
Rule Fed.R.Civ.P. 13 , FRCivP.