Prof Joseph Glannon Civil Procedure: Rule 13 CounterClaims
Here is a case from my Civil Procedure course which explains the rule for issuing counterclaims. In this case, failing to file a counter-claim in time results in a waiver–even though the claim arises from the same events.
Case Name, Citation Number, Author
King v. Blanton, 735 S.E.2d 451 (final disposition reported); No. COA12-534, slip op. (N.C. Ct. App. Nov. 20, 2012)
Blanton filed suit against King for injuries in a car accident. Blanton entered agreement with King over cash settlement. One month later King filed a counterclaim in response to Blanton’s original complaint. Blanton files motion to dismiss. Trial court grants it and gives summary judgment to Blanton. King appeals.
–Car accident occurred on April 23, 2010
–Blanton filed a complaint on July 14, 2010
–Blanton entered agreement to dismiss the case May 3, 2011
–King filed a counterclaim on June 30, 2011
1) Whether the trial court erred in granting summary judgment in favor of Blanton?
2) Should a counterclaim in a second action be barred under Fed Rule 13a?
Failure to file a compulsory counterclaim constituted a waiver and estops her from bringing a new action for negligence based upon the same events that were the heart of the original complaint.
–Waiver/estoppel approach in Kemp v. Spivey. Rule 13a creates an estoppel or waiver to prevent multiplicity of actions and to achieve resolution in a single lawsuit
–King had more than 9 months to file a counterclaim
–King was unaware of her right to file a counterclaim.
–Rule 13(a)(1): a counterclaim is a claim for relief by a defending party against an opposing party. A “pleading shall state as a counter claim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter jurisdiction 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.”
–Rule 13(b): defendant can assert unrelated counterclaims against plaintiff
–A counterclaim is a claim for relief by a DEFENDING party against the party who is claiming relief from her
–A counterclaim is compulsory when it must be asserted in the same action.
–Cross-claims: Rule 13(g): A cross-claim is a claim against a co-party—a co-defendant or a co-plaintiff. Cross claims maybe asserted if they arise from the same transactions or occurrence as the main claim in the action. Cross claims are permissive
Do not file a counterclaim much later than expected.
To learn how I work from home and make money online go to http://www.livelikeanentrepreneur.com
All content is the property of Prince’s Daily Journal LLC, any use of distribution without express written permission is strictly prohibited. Copyright (c) 2013 All Rights Reserved.