Counterclaim Forum

[bissey]

CivPro help...

1. For a permissive counterclaim, D needs smj over the claim. If in Fed court for federal question and D counterclaims for non-fed claim, can't bring it if it doesn't meet either amount or if there's no diversity b/w P and D? I'm thinking D can't...

2. Also, if D is a resident of the state where the case is in Fed ct., even if diversity and amount is met (non-Fed permissive counterclaim), can D be precluded from bringing it for being a resident of the state? Almost positive the answer is no, just had a concern considering D can't bump the case to Fed. Ct. if he's from the state the suit is in.

3. Finally, an intervening party (R24) that is brought in that ruins diversity can't bring a claim b/c of 1367 and can't have claim brought against him; so he can only defend (intervening as a D)? Assuming he only has to defend, there is no SMJ to be met, right?

Thanks!

[romothesavior]

CivPro help...

1. For a permissive counterclaim, D needs smj over the claim. If in Fed court for federal question and D counterclaims for non-fed claim, can't bring it if it doesn't meet either amount or if there's no diversity b/w P and D? I'm thinking D can't...

2. Also, if D is a resident of the state where the case is in Fed ct., even if diversity and amount is met (non-Fed permissive counterclaim), can D be precluded from bringing it for being a resident of the state? Almost positive the answer is no, just had a concern considering D can't bump the case to Fed. Ct. if he's from the state the suit is in.

3. Finally, an intervening party (R24) that is brought in that ruins diversity can't bring a claim b/c of 1367 and can't have claim brought against him; so he can only defend (intervening as a D)? Assuming he only has to defend, there is no SMJ to be met, right?

Thanks!

Your sentences are difficult to understand, but I'm going to try to answer them based on what I think you're saying.

1. You're correct. The only way a D can counterclaim P is if one of the following is met: 1) there is a federal question under 1331 (there isn't in this case), 2) there is diversity under 1332, or 3) the claim arises under the same case or controversy to establish supplemental jurisdiction under 1367(a) by arising out of the "same nucleus of operative fact", which it doesn't sound like it can since it is a permissive counterclaim, which is by definition a separate transaction or occurrence.

2. Not sure what you mean by "can D be precluded from bringing it for being a resident of the state?" Are you still talking about a counterclaim? This question as you asked it is unclear. I think you're asking, "If D is attempting to permissively counterclaim a diverse party P in a federal court in which D is a resident, can he bring the counterclaim?" I'm almost positive the answer to this is going to be yes. It should be able to be brought because of diversity jurisdiction, but it would likely be separated for trial because it is a totally unrelated suit. Am I understanding your question properly?

3. Didn't study intervention.

[bissey]

You got it, thanks. Sorry for the confusion.

Anyone know the 3rd?

[random5483]

3. I will try to answer 3, but I am not quite sure what you are asking. Interventions are not allowed if they wreck diversity unless subject matter jurisdiction exists. Prior to 1367 intervention by right was allowed even if it wrecked complete diversity; however, since 1367 was passed interventions cannot be made if they wreck diversity unless you have an alternate means of subject matter jurisdiction. I don't see why intervening as a "defendant" would waive the subject matter jurisdiction requirement. Subject matter jurisdiction is over the entire case not the individual parties. Thus, if any intervening party wrecks diversity, and diversity is the form of subject matter jurisdiction the court has, the intervention will not be allowed.

[bissey]

cool, thank you.

[blsingindisguise]

At least in re the first Q, it helps to think about it commonsensically and take it out of the jargon. If I sue you for infringing my copyright, it makes sense that you not only could but must counterclaim against me in the same case on any related claims [edit: federal or state law], e.g., that you are in fact the copyright holder and I infringed YOUR copyright, or that I owe you money on the deal that the copyrighted work came out of (say a film script or something). It wouldn't make sense to let you bring these separately in another action.

It also makes sense that perhaps you could bring unrelated counterclaims that the court could hear anyway (permissive counterclaims) -- ones arising under other federal law or where there's diversity. Might as well put them all together and save the court time.

It does NOT make sense that the court could hear an unrelated STATE law cause of action, because it has nothing to do with the case and the court would have no power otherwise (e.g. you sue me for shooting your dog that I thought was a wolf)

[blsingindisguise]

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