Crossclaim or Counterclaim? Forum

[g3.sneaks]

P1 serves P2 with a crossclaim. P2 responds with... a crossclaim? or a counterclaim? Matters b/c crossclaims are permissive but some counterclaims are mandatory or they will be barred from being brought up in future suits. I believe that it is a counterclaim because after the crossclaim the parties are now considered opposing parties, even though they are both plaintiffs. Just posting here to make completely sure.

[BVest]

P1 serves P2 with a crossclaim. P2 responds with... a crossclaim? or a counterclaim? Matters b/c crossclaims are permissive but some counterclaims are mandatory or they will be barred from being brought up in future suits. I believe that it is a counterclaim because after the crossclaim the parties are now considered opposing parties, even though they are both plaintiffs. Just posting here to make completely sure.

P2 would be responding with a cross-claim that is also a counterclaim.

BTW, a counterclaim to a cross-claim is almost always compulsory. Why?

First take a look at what is allowed in terms of cross-claims:

13(g) Crossclaim Against a Coparty. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.

Then look back at compulsory Counterclaims:
13(a) Compulsory Counterclaim.
(1) In General. 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; and
(B) does not require adding another party over whom the court cannot acquire jurisdiction.

[g3.sneaks]

Thanks for the reply. While I agree with you, I also think it is not so cut and dry. I recently e-mailed my professor and he told me that the issue has not been completely resolved by the FRCP. It is safer to consider them counterclaims, but there have been courts that considered replies to crossclaims as other crossclaims. This means that some courts do not consider related claims P2 may have to be mandatory (as they would be if claims in response were considered counterclaims [would be a mandatory counterclaim in this instance]).

I think the ambiguity arises from the term "opposing party" in R13(a). If the ct. considers a party that has a crossclaim filed against it an "opposing party" to the claimant, responses will be considered counterclaims and subject to their rules. However, if the ct. considers a party that has a crossclaim filed against it not an "opposing party", then responses will be considered crossclaims and related claims would not need to be filed.

I'm surprised you knew as much as you did on a whim; if you're a 1L you're doing great!

[03152016]

re: t/o in counterclaims/cross-claims
you have to ask whether t/o is being used as a "door opener", as in tenet, or a "door closer" (preclusive context) as in heywood
my prof, at least, expects us to distinguish the two