COUNTERCLAIM AND CROSS-CLAIM

A. COMPULSORY COUNTERCLAIMS. A pleading shall state as a counterclaim 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 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 his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim pursuant to this section.

B. PERMISSIVE COUNTERCLAIMS; CONTINGENT COUNTERCLAIMS.

1. 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.

2. A pleading may state as a counterclaim against an opposing party a contingent claim that the opposing party may be liable to the counterclaimant for all or part of a claim asserted in the action against the counterclaimant.

C. COUNTERCLAIM EXCEEDING OPPOSING CLAIMS; STATUTES OF LIMITATION. 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. Where a counterclaim and the claim of the opposing party arise out of the same transaction or occurrence, the counterclaim shall not be barred by a statute of limitation notwithstanding that it was barred at the time the petition was filed, and the counterclaimant shall not be precluded from recovering an affirmative judgment. Where a counterclaim and the claim of the opposing party:

1. Do not arise out of the same transaction or occurrence;

2. Both claims are for money judgments;

3. Both claims had accrued before either was barred by a statute of limitation; and

4. The counterclaim is barred by a statute of limitation at the time that it is asserted, whether in an answer or an amended answer, the counterclaim may be asserted only to reduce the opposing party's claim.

Where a counterclaim was barred by a statute of limitation before the claim of the opposing party arose, the barred counterclaim cannot be used for any purpose.

D. COUNTERCLAIMS AGAINST ASSIGNED CLAIMS. A party, other than a holder in due course, who acquires a claim by assignment or otherwise, takes the claim subject to any defenses or counterclaims that could have been asserted against the person from whom he acquired the claim, but the recovery on a counterclaim may be asserted only to reduce the recovery of the opposing party.

E. CLAIM MATURING OR ACQUIRED AFTER PLEADING. A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading.

F. OMITTED COUNTERCLAIM. When a pleader fails to set up an omitted counterclaim by amendment within twenty (20) days after service as authorized by subsection A of Section 2015 of this title, he may with leave of court or by written consent of the adverse party set up the counterclaim by amendment where the failure to assert it was due to oversight, inadvertence, excusable neglect, or where justice requires.

G. CROSS-CLAIMS. A pleading may state as a cross-claim any claim by one party against any party who is not an opposing party arising out of the transaction or occurrence that is the subject matter either of the original action or of a claim therein or relating to any property that is the subject matter of the original action. A cross-claim may assert 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 Sections 2019 and 2020 of this title.

I. SEPARATE TRIALS; SEPARATE JUDGMENTS. A court may order separate trials of a counterclaim or a cross-claim. A counterclaim or a cross-claim may proceed to trial and judgment thereon may be rendered even if the claim of the opposing party has been dismissed or otherwise disposed of.

Added by Laws 1984, c. 164, § 13, eff. Nov. 1, 1984. Amended by Laws 1986, c. 227, § 6, eff. Nov. 1, 1986; Laws 1988, c. 181, § 2, eff. Nov. 1, 1988.