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Civil procedure in the United States
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A counterclaim is made by the defendant to a civil proceeding, in a main action against the plaintiff or against the plaintiff and other people. This claim may be an attempt to offset or reduce the amount/implications of the plaintiff's original claim against the defendant, or it may be a different claim. Counterclaims did not exist at common law; they are an invention of modern civil procedure.

Examples of counterclaims include:

  • A bank sues a customer for an unpaid debt, while the customer counterclaims (sues back) against the bank for fraud in procuring the debt. The court will sort out the different claims in one lawsuit (unless the claims are severed).
  • Two cars collide. One person sues for damage to her car and personal injuries. The defendant counterclaims for similar property damage and personal injury claims.

Counterclaims are either compulsory or permissive. If the counterclaim is permissive, it may be brought, but no rights are waived if it is not. Courts rarely give permissive counterclaims the necessary supplemental jurisdiction to be brought.

If the counterclaim is compulsory, it must be brought in the current action or it is waived and lost forever. The only exceptions provided for are those mandatory counterclaims already filed in another case or counterclaims lacking personal jurisdiction; they are not waived. Under the United States Federal Rules of Civil Procedure, a counterclaim is compulsory if it involves only the parties currently part of the suit, and is from the same transaction or occurrence that the original suit is based on.[1] Various tests have been proposed for when a counterclaim arises from the same transaction or occurrence, including same issues of fact and law, use of the same evidence, and logical relation between the claims.[2]


  1. ^ Federal Rule of Civil Procedure 13(a).
  2. ^ 6 Wright & Miller, Federal Practice and Procedure Sec. 1410 at 42 (1971), as cited in Plant v. Blazer Financial Services 498 F.2d 1357, 1360 (5th Cir. 1979).


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