Sculpting the Lawsuit

COUNTERCLAIMS AND CROSSCLAIMS

You should be careful to distinguish Rule 20, which governs joinder of parties, from Rules 18 and 13, which authorize parties, once they are properly joined in a lawsuit, to assert additional claims against opposing parties. Rule 13 authorizes a defending party in a suit to assert claims back against a party who has claimed against him. Such counterclaims come in two shapes, compulsory (Rule 13(a)) and permissive (Rule 13(b)). If the defending party’s counterclaim arises from the same transaction or occurrence as the claim against him, it is compulsory, which essentially means that he must assert it in the original action or lose it. For example, if Volt sues Ellsworth for his injuries arising out of the accident and Ellsworth suffered injuries in the same accident, which she attributes to Volt’s negligence, Rule 13(a)(1) requires Ellsworth to assert her claim for these injuries in Volt’s action. This rule makes sense; it forces parties who are already adversaries to litigate all claims arising from the same set of facts in a single action.

Another Impromptu Question

2. Under Rule 20(a), the parties are never forced to bring parties into a particular suit. Rule 13(a)(1), by contrast, compels a party to assert some claims at a time and place not of his choosing. Why did the rulemakers choose to force parties to assert compulsory counterclaims?

Defending parties may also assert counterclaims that are completely unrelated to the original claim, under Rule 13(b). This cannot be justified on efficiency grounds, since (by definition) a permissive counterclaim will involve different events from the main claim, and the court will almost certainly order separate trial of the permissive counterclaim. See Rule 42(b). But the rule at least allows a defendant, once brought before the court, to settle all his claims against his opponent without having to file a separate lawsuit.

Yet another type of claim is addressed in Rule 13(g), which provides for assertion of crossclaims arising out of the same transaction or occurrence as the main claim. A crossclaim is a claim asserted by one party against a co-party; that is, someone on the same side of the “v” as the claimant. Suppose that Volt sues Wright and Ellsworth for injuries suffered in the accident. If Wright suffered injuries as well and believes that the accident was Ellsworth’s fault, she may crossclaim against Ellsworth for her injuries. This is called a crossclaim rather than a counterclaim because it is asserted by one defendant against a co-defendant, not against an opposing party.[1] The configuration would look like this:

Here again, allowing assertion of these claims in the main action promotes efficiency and consistency because the same underlying facts will be litigated on the main claim and on the crossclaim. Yet here again, the rule makes joinder optional, leaving Wright free to sue separately on her claim against Ellsworth if she prefers to do so.