Permissive counterclaim and PJ

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Apple Tree
Posts: 419
Joined: Sat Nov 08, 2008 2:19 pm

Permissive counterclaim and PJ

Postby Apple Tree » Wed Nov 23, 2011 12:37 pm

If the answer is the defendant's first response, and he raised the PJ challenge in the answer but also asserted a permissive counterclaim (unrelated to the original claim) at the same time (or even at a later time), does it mean he has in effect waived the PJ challenge? I'm asking because it seems like defendant asserting a permissive counterclaim is like the plaintiff asserting the original claim, and the plaintiff has waived any PJ by asserting that claim. Hopefully this made sense.

zomginternets
Posts: 547
Joined: Mon Jan 17, 2011 1:59 pm

Re: Permissive counterclaim and PJ

Postby zomginternets » Wed Nov 23, 2011 2:19 pm

PJ=Permissive Joinder?

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vertex
Posts: 239
Joined: Wed Jun 23, 2010 4:22 pm

Re: Permissive counterclaim and PJ

Postby vertex » Wed Nov 23, 2011 2:34 pm

Apple Tree wrote:If the answer is the defendant's first response, and he raised the PJ challenge in the answer but also asserted a permissive counterclaim (unrelated to the original claim) at the same time (or even at a later time), does it mean he has in effect waived the PJ challenge? I'm asking because it seems like defendant asserting a permissive counterclaim is like the plaintiff asserting the original claim, and the plaintiff has waived any PJ by asserting that claim. Hopefully this made sense.


The personal jurisdiction defense is not waived under the Federal Rules of Civil Procedure by asserting a permissive counterclaim as long as you include the defense in your initial answer (as you noted).

However, not all states use the federal rules, and ones that do not often have what is known as special appearance. Under this regime, asserting a permissive counterclaim, making a 12(b)(6), or really doing anything at all other than specially appearing for the purpose of contesting personal jurisdiction will waive your personal jurisdiction defense, even if you raise the personal jurisdiction defense right at the beginning.

Apple Tree
Posts: 419
Joined: Sat Nov 08, 2008 2:19 pm

Re: Permissive counterclaim and PJ

Postby Apple Tree » Wed Nov 23, 2011 6:45 pm

vertex wrote:
Apple Tree wrote:If the answer is the defendant's first response, and he raised the PJ challenge in the answer but also asserted a permissive counterclaim (unrelated to the original claim) at the same time (or even at a later time), does it mean he has in effect waived the PJ challenge? I'm asking because it seems like defendant asserting a permissive counterclaim is like the plaintiff asserting the original claim, and the plaintiff has waived any PJ by asserting that claim. Hopefully this made sense.


The personal jurisdiction defense is not waived under the Federal Rules of Civil Procedure by asserting a permissive counterclaim as long as you include the defense in your initial answer (as you noted).

However, not all states use the federal rules, and ones that do not often have what is known as special appearance. Under this regime, asserting a permissive counterclaim, making a 12(b)(6), or really doing anything at all other than specially appearing for the purpose of contesting personal jurisdiction will waive your personal jurisdiction defense, even if you raise the personal jurisdiction defense right at the beginning.

Thanks!




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