RULE 13. COUNTERCLAIM AND CROSS-CLAIM

Effective Date: 9/20/1979

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.

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