Civ Pro & The Cross-claim Forum

[Mauve Velociraptor]

So, I know that cross-claims are permissive in federal court, and if they are asserted, they MUST arise out of the some transaction or series of transactions. So with that in mind, if D1 decides to assert a cross-claim against D2 (assuming it arises out of the same transaction), MUST D2 assert his 13(a) Compulsory counterclaim against D1 or would D2's claims against D1 technically be considered a cross-claim, regardless of whether a cross-claim was asserted against him?

My confusion stems from 13(a):
A pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim:

(A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim

Would the D who asserted a cross claim become an opposing party once he does so or does that D remain a "co-party?"

[uwb09]

So, I know that cross-claims are permissive in federal court, and if they are asserted, they MUST arise out of the some transaction or series of transactions. So with that in mind, if D1 decides to assert a cross-claim against D2 (assuming it arises out of the same transaction), MUST D2 assert his 13(a) Compulsory counterclaim against D1 or would D2's claims against D1 technically be considered a cross-claim, regardless of whether a cross-claim was asserted against him?

My confusion stems from 13(a):
A pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim:

(A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim

Would the D who asserted a cross claim become an opposing party once he does so or does that D remain a "co-party?"

a 13(g) cross-claim is in itself a separate complaint for relief, and the defendant in the claim must exhaust all compulsory claims, or lose them to claim preclusion upon a judgment on the merits

[Mauve Velociraptor]

Your answer to my question makes sense, and that's what I thought the answer was. Just a heads up though, if you fail to assert a compulsory counter-claim, you WAIVE it as a violation of rule 13(a). Res Judicata doesn't apply. For Res Judicata to apply it has to be the same CLAIMANT against the same DEFENDANT and in the hypo i made, the D who had a cross claim asserted against him would not have been the one asserting a claim.

[uwb09]

Your answer to my question makes sense, and that's what I thought the answer was. Just a heads up though, if you fail to assert a compulsory counter-claim, you WAIVE it as a violation of rule 13(a). Res Judicata doesn't apply. For Res Judicata to apply it has to be the same CLAIMANT against the same DEFENDANT and in the hypo i made, the D who had a cross claim asserted against him would not have been the one asserting a claim.

but by having a claim asserted against him, in the form of a 13(g) cross-claim, D2 now becomes a "defendant" to D1's cross-claim, in which D1 is now a "claimant," in relation to the cross-claim.

If D2 fails to file any compulsory counterclaims under 13(a) against D1, in relation to the transaction/occurrences of which the 13(g) cross-claim is based, he loses those claims forever against D1 doesn't he? Or another way to put it, he is "precluded" from filing those "claims" against D1 in the future?

[Mauve Velociraptor]

You're absolutely right but for the wrong reasons. Let's say D1 forgets to assert a compulsory counterclaim after having a permissive cross-claim asserted against him. Now D1 tries to sue D2 in a SEPARATE action. Let's go through Freer's requirements for Res Judicata. I say Freer because I'm not sure if other hornbooks have the requirements stated differently.

For a claim to be precluded from being asserted 3 requirements must be met:
(1) The same claimant (or someone in privity) from Case 1 must be asserting a claim against the same defendant (or someone in privity) from Case 1
*Here, since D1 never asserted the claim in Case 1 this requirement would not be met.

(2) Case 1 ended in a valid + final judgment on the merits
*Here, we assume this requirement.

(3) It must be the same claim
*In federal court the same claim, is one arising out of the same transaction, so this requirement is met.

In conclusion, 2/3 requirements for Res Judicata are met, so if D1 decided to bring his claim against D2 in a separate lawsuit after CASE 1 was over, technically under Res Judicata it would not be precluded. Nevertheless it can't be asserted. Why? He failed to assert it in CASE 1 because RULE 13(a) dictates that he must, hence, it's precluded because it was a violation of Rule 13(a) not because Res Judicata precludes it.