TO: Joint Procedure Committee
FROM: Andy Forward
DATE: March 30, 2010
RE: Rule 13, N.D.R.Civ.P., Counterclaim and Crossclaim
Staff has prepared amendments to Rule 13 based on the December 1, 2009, amendments made to the federal rules. The amendment to Rule 13 deletes subdivision (f), which sets out standards for amending pleadings to add a counterclaim. The subdivision is redundant of Rule 15, which sets out standards for amending pleadings in general. The change codifies courts' practice of applying uniform standards to the amendment of pleadings.
The following is the Advisory Committee Note to Fed.R.Civ.P. 13:
Rule 13(f) is deleted as largely redundant and potentially misleading. An amendment to add a counterclaim will be governed by Rule 15. Rule 15(a)(1) permits some amendments to be made as a matter of course or with the opposing party's written consent. When the court's leave is required, the reasons described in Rule 13(f) for permitting amendment of a pleading to add an omitted counterclaim sound different from the general amendment standard in Rule 15(a)(2), but seem to be administered--as they should be--according to the same standard directing that leave should be freely given when justice so requires. The independent existence of Rule 13(f) has, however, created some uncertainty as to the availability of relation back of the amendment under Rule 15(c). See 6 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil 2d, § 1430 (1990). Deletion of Rule 13(f) ensures that relation back is governed by the tests that apply to all other pleading amendments.
The proposed amendments to Rule 13 are attached. The proposed amendments are highlighted.