RULE 13. COUNTERCLAIM AND CROSSCLAIM

Effective Date: 3/1/2011

(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 any 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 by which the court did not acquire 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 any claim against an opposing party.

(c) Relief Sought in a Counterclaim.

(1) In General. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount differs in kind from the relief sought by the opposing party.
(2) Contract Action. In a contract action for the recovery of money only, when the defendant's answer does not deny the plaintiff's claim but asserts a counterclaim for an amount less than the plaintiff's claim, the plaintiff may have default judgment for the money claimed that exceeds the counterclaim amount.

(d) Counterclaim Against the State. These rules do not expand the right to assert a counterclaim—or to claim a credit—against the State of North Dakota or a state 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) [Deleted]

(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, even if the opposing party's claims have been dismissed or otherwise resolved.

Rule 13 was amended, effective March 1, 1990; March 1, 2011.

Rule 13 is based on Fed.R.Civ.P. 13. This rule prescribes procedure to be followed in the use of counterclaims and crossclaims.

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.

Subdivision (c)(2) was derived from Section 28-0907, NDRC 1943.

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; Fed.R.Civ.P. 13.

CROSS REFERENCE: N.D.R.Civ.P. 7 (Pleadings Allowed-Form of Motions), N.D.R.Civ.P. 8 (General Rules of Pleading), N.D.R.Civ.P. 12 (Defenses and Objections-When and How Presented-By Pleading or Motion-Motion for Judgment on Pleadings), N.D.R.Civ.P. 14 (Third-Party Practice), N.D.R.Civ.P. 15 (Amended and Supplemental Pleadings), N.D.R.Civ.P. 18 (Joinder of Claims and Remedies), N.D.R.Civ.P. 19 (Joinder of Persons Needed for Just Adjudication), N.D.R.Civ.P. 20 (Permissive Joinder of Parties), N.D.R.Civ.P. 42 (Consolidation-Separate Trials), N.D.R.Civ.P. 54 (Judgment-Costs), and N.D.R.Civ.P. 56 (Summary Judgment).

Effective Date Obsolete Date
03/01/2011 View
09/20/1979 03/01/2011 View