RULE 13. COUNTERCLAIM AND CROSS-CLAIM

Obsolete Date: 3/1/2011

(a) Compulsory Counterclaims. A pleading must state as a counterclaim any claim the pleader has against any opposing party when the pleading is served, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if

(1) at the time the action was commenced, the claim was the subject of another pending action, or

(2) the opposing party brought suit upon the claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on the claim, and the pleader is not stating a counterclaim under this rule.

(b) Permissive Counterclaims. 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) Counterclaim Exceeding or Less Than Opposing Claim.

(1) A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of 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 judgment roll.

(d) Counterclaim Against the State. These rules shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims or to claim credits against the State of North Dakota or an officer or agency thereof.

(e) Counterclaim Maturing or Acquired After Pleading. With permission of the court, a party who has served a pleading may present as a counterclaim by supplemental pleading a claim that either matured or was acquired after the pleading was served.

(f) 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.

(g) Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

(h) Joinder of 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.

(i) Separate Trials-Separate Judgment. If the court orders separate trials as provided in Rule 42(b), judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of Rule 54(b) when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of.