(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Notes of Advisory Committee on Rules—1937
1. This is substantially [former] Equity Rule
(Answer—Contents—Counterclaim), broadened to include legal as well as equitable counterclaims.
2. Compare the English practice, English Rules Under the Judicature Act (The Annual Practice, 1937) O. 19, r.r. 2 and 3, and O. 21, r.r. 10—17; Beddall v. Maitland, L.R. 17 Ch.Div. 174, 181, 182 (1881).
3. Certain States have also adopted almost unrestricted provisions concerning both the subject matter of and the parties to a counterclaim. This seems to be the modern tendency. Ark.Civ.Code (Crawford, 1934) §§ 117 (as amended) and 118; N.J.Comp.Stat. (2 Cum.Supp. 1911–1924), N.Y.C.P.A. (1937) §§ 262,
267 (all as amended, Laws of 1936, ch. 324), 268, 269, and 271; Wis.Stat. (1935) § 263.14 (1)(c).
4. Most codes do not expressly provide for a counterclaim in the reply. Clark, Code Pleading (1928), p. 486. Ky.Codes (Carroll, 1932) Civ.Pract. § 98 does provide, however, for such counterclaim.
5. The provisions of this rule respecting counterclaims are subject to Rule
(Jurisdiction and Venue Unaffected). For a discussion of Federal jurisdiction and venue in regard to counterclaims and cross-claims, see Shulman and Jaegerman, Some Jurisdictional Limitations in Federal Procedure (1936), 45 Yale L.J. 393, 410 et seq.
6. This rule does not affect such statutes of the United States as U.S.C., Title
, § 41(1) [now 1332, 1345, 1359] (United States as plaintiff; civil suits at common law and in equity), relating to assigned claims in actions based on diversity of citizenship.
7. If the action proceeds to judgment without the interposition of a counterclaim as required by subdivision (a) of this rule, the counterclaim is barred. See American Mills Co. v. American Surety Co., 260 U.S. 360 (1922); Marconi Wireless Telegraph Co. v. National Electric Signalling Co., 206 Fed. 295 (E.D.N.Y., 1913); Hopkins, Federal Equity Rules (8th ed., 1933), p. 213; Simkins, Federal Practice (1934), p. 663
8. For allowance of credits against the United States see U.S.C., Title
, §§ 1672–1673 [see 7442] (Suits for refunds of internal revenue taxes—limitations); U.S.C., Title
, §§ 774 [now 2406] (Suits by United States against individuals; credits), [former] 775 (Suits under postal laws; credits); U.S.C., Title
, § 227 [now 3728] (Offsets against judgments and claims against United States).
Notes of Advisory Committee on Rules—1946 Amendment
Subdivision (a). The use of the word “filing” was inadvertent. The word “serving” conforms with subdivision (e) and with usage generally throughout the rules.
The removal of the phrase “not the subject of a pending action” and the addition of the new clause at the end of the subdivision is designed to eliminate the ambiguity noted in Prudential Insurance Co. of America v. Saxe (App.D.C. 1943) 134 F.(2d) 16, 33–34, cert. den. (1943) 319 U.S. 745. The rewording of the subdivision in this respect insures against an undesirable possibility presented under the original rule whereby a party having a claim which would be the subject of a compulsory counterclaim could avoid stating it as such by bringing an independent action in another court after the commencement of the federal action but before serving his pleading in the federal action.
Subdivision (g). The amendment is to care for a situation such as where a second mortgagee is made defendant in a foreclosure proceeding and wishes to file a cross-complaint against the mortgagor in order to secure a personal judgment for the indebtedness and foreclose his lien. A claim of this sort by the second mortgagee may not necessarily arise out of the transaction or occurrence that is the subject matter of the original action under the terms of Rule
Subdivision (h). The change clarifies the interdependence of Rules
Notes of Advisory Committee on Rules—1963 Amendment
When a defendant, if he desires to defend his interest in property, is obliged to come in and litigate in a court to whose jurisdiction he could not ordinarily be subjected, fairness suggests that he should not be required to assert counterclaims, but should rather be permitted to do so at his election. If, however, he does elect to assert a counterclaim, it seems fair to require him to assert any other which is compulsory within the meaning of Rule
. Clause (2), added by amendment to Rule
, carries out this idea. It will apply to various cases described in Rule
, as amended, where service is effected through attachment or other process by which the court does not acquire jurisdiction to render a personal judgment against the defendant. Clause (2) will also apply to actions commenced in State courts jurisdictionally grounded on attachment or the like, and removed to the Federal courts.
Notes of Advisory Committee on Rules—1966 Amendment
, dealing with the joinder of additional parties to a counterclaim or cross-claim, has partaken of some of the textual difficulties of Rule
on necessary joinder of parties. See Advisory Committee’s Note to Rule
, as amended; cf. 3 Moore’s Federal Practice, Par. 13.39 (2d ed. 1963), and Supp. thereto; 1A Barron & Holtzoff, Federal Practice and Procedure § 399 (Wright ed. 1960). Rule
has also been inadequate in failing to call attention to the fact that a party pleading a counterclaim or cross-claim may join additional persons when the conditions for permissive joinder of parties under Rule
The amendment of Rule
supplies the latter omission by expressly referring to Rule
, as amended, and also incorporates by direct reference the revised criteria and procedures of Rule
, as amended. Hereafter, for the purpose of determining who must or may be joined as additional parties to a counterclaim or cross-claim, the party pleading the claim is to be regarded as a plaintiff and the additional parties as plaintiffs or defendants as the case may be, and amended Rules
are to be applied in the usual fashion. See also Rules
(compulsory counterclaims) and 22 (interpleader).
The amendment of Rule
, like the amendment of Rule
, does not attempt to regulate Federal jurisdiction or venue. See Rule
. It should be noted, however, that in some situations the decisional law has recognized “ancillary” Federal jurisdiction over counterclaims and cross-claims and “ancillary” venue as to parties to these claims.
Notes of Advisory Committee on Rules—1987 Amendment
The amendments are technical. No substantive change is intended.
Committee Notes on Rules—2007 Amendment
The language of Rule
has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
The meaning of former Rule
is better expressed by deleting “not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” Both as a matter of intended meaning and current practice, a party may state as a permissive counterclaim a claim that does grow out of the same transaction or occurrence as an opposing party’s claim even though one of the exceptions in Rule
means the claim is not a compulsory counterclaim.