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
judgment on the over the pleader on that claim, and the pleader
is not stating a does not
assert any counterclaim under this rule.
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
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.
an action upon a contract
action for the recovery of money only, when the defendant
by his defendant's answer shall does not
deny the plaintiff's claim but shall set up asserts a
counterclaim amounting to for an amount less than the plaintiff's
claim, the plaintiff may
have default judgment as upon default for the excess of his claim over
such for the money
claimed that exceeds the counterclaim amount. 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 judgment roll.
(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
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
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
judgment Judgments. If the court orders separate trials
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
Rule 13 was amended, effective March 1, 1990; March 1, 2011.
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
Rule 13 was amended, effective March 1, 2011, 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 deleted, effective March 1, 2011, to track the 2009 federal amendment. The subdivision was redundant of Rule 15, which sets out standards for amending pleadings in general.
is was derived
from N.D.R.C. 1943 § 28-0907.
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 September
23-24, 2010, page 10;
January 24, 2008, pages 18-19; April 20, 1989, page 2; December 3, 1987, page 11;
September 20-21, 1979, pages 8-9,
13 , FRCivP.