TITLE THREE — PLEADINGS AND MOTIONS
Rule 13.1. Counterclaim and Crossclaim
Compulsory Counterclaim. A pleading shall state as a counterclaim any claim that, at the time of its filing, the pleader has against an opposing party if the claim arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim, and does not require adding another party over whom the court cannot acquire jurisdiction. A claim within this subdivision that is not pleaded is barred, and may not be asserted in a later action.
Exceptions. The pleader need not state the claim if:
when the action was commenced, the claim was the subject of another pending action; or
the opposing party sued on its claim by attachment or other process that did not establish jurisdiction over the person of the pleader on that claim, and the pleader does not assert any counterclaim under this rule.
Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory. The court may order a separate trial of a permissive counterclaim under Rule 29 where trying it with the original claim would prejudice a party or complicate the action.
Relief Sought in a Counterclaim. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party, subject to the maxima fixed by the statute creating each claim and by 7 R. Stat. § 122.003.
Crossclaim Against a Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party 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 cross-claim may include a claim that the co-party is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. A cross-claim is never compulsory.
Counterclaim Against the Government. These rules do not enlarge the right to assert a counterclaim, or to claim a credit, against the state government, a county government, a municipal government, or an agency, department, or officer thereof. Sovereign immunity under 7 R. Stat. § 122.002 applies to a counterclaim as it applies to an original claim, and a counterclaim against the government shall be pleaded in the manner required by Rule 9(8).
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 filing an earlier pleading. Leave shall be sought by motion under Rule 7.1 and, if granted, the supplemental pleading shall be filed within the period the court fixes.
Joining Additional Parties. Rules 15, 17.1, and 17.2 govern the addition of a person as a party to a counterclaim or a cross-claim. The electronic filing system permits a party to be added in a filing only by the clerk, a judge, or an attorney in good standing. A party appearing without counsel who seeks to join an additional party to a counterclaim or cross-claim shall move the court, and upon the granting of the motion the clerk shall add the party and issue a summons under Rule 4.
Form and Filing.
A counterclaim shall be stated in the answer, denominated as a counterclaim, and stated in a separate count under Rule 10(3). A cross-claim shall be stated in the answer or in a separate pleading, denominated as a cross-claim.
An answer containing a counterclaim or a cross-claim is transmitted under the filing code for an Answer. A separate pleading stating a cross-claim against a co-party is transmitted under the filing code for Other, unless another code more truly describes it.
Response. A reply to a counterclaim denominated as such, and an answer to a cross-claim, shall be filed within the period fixed by Rule 12(4)(3). A defense to a counterclaim or a cross-claim may be presented by motion in the manner allowed by Rule 12(1), and the periods of Rule 12(5) apply.
Effect Upon Voluntary Dismissal. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court, as provided by Rule 28(1)(2). A notice of dismissal filed by a plaintiff under Rule 28(1)(1) does not dismiss a pending counterclaim or cross-claim, which remains for adjudication. The provisions of Rule 28 apply to the dismissal of any counterclaim or cross-claim.
Separate Trials; Separate Judgments. If the court orders separate trials under Rule 29, it may enter judgment on a counterclaim or cross-claim when it has jurisdiction to do so, even if the claims of the opposing party have been dismissed or otherwise disposed of.
Default Upon a Counterclaim or Crossclaim. A party against whom a counterclaim or cross-claim is asserted and who fails to plead or otherwise defend is subject to default under Rule 37, which applies whether the party entitled to judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim.