Rule 313. Counterclaim and Cross Claim

(a) Compulsory Counterclaims. If at the time the action is commenced the defendant possesses a counterclaim against the plaintiff that is within the jurisdiction of the county court, exclusive of interest and costs, arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim, does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction, and is not the subject of another pending action, the defendant shall file such counterclaim in the answer or thereafter be barred from suit on the counterclaim. The defendant may also elect to file a counterclaim not arising out of the transaction or occurrence.

(b) Alternate. If at the time the action is commenced the defendant possesses a counterclaim against the plaintiff that is not within the jurisdiction of the county court, exclusive of interest and costs, the defendant may:

(1) File the counterclaim in the pending county court action, but, unless the defendant follows the procedure set forth in section (2) below, any judgment in the defendant's favor shall be limited to the jurisdictional limit of the county court, exclusive of interest and costs, and suit for the excess due the defendant over that sum will be barred thereafter; or

(2) File the counterclaim together with the answer in the pending county court action and request in the answer that the action be transferred to the district court. Upon filing the answer and counterclaim, the defendant shall tender the district court filing fee for a complaint. Upon compliance by the defendant with the requirements of this section, all county court proceedings shall be discontinued and the clerk of the county court shall certify all records in the case and forward the docket fee to the district court. In the event the counterclaim which caused the removal is subsequently dismissed, the case may be remanded to the county court for further proceedings.

(c) Counterclaim Maturing or Acquired after Pleading. A claim which either matured or was acquired by the defendant after the answer was filed may, with the permission of the court, be presented as a counterclaim by supplemental pleading. If the counterclaim exceeds the jurisdiction of the county court, upon request of the defendant to transfer the case to district court and the tendering of the district court filing fee for a complaint, all county court proceedings shall be discontinued and the clerk of the county court shall certify all records in the case and forward the docket fee to the district court. If it is determined that the defendant's request for transfer was made for the purpose of delaying the trial of the plaintiff's claim, the district court shall award the plaintiff any costs, including reasonable attorney fees, occasioned by the delay.

(d) Omitted or Amended Counterclaim. When a defendant fails to file a counterclaim or request that the case be transferred to the district court through oversight, inadvertence, or excusable neglect, or when justice requires, the counterclaim may be pled by amendment, subject to Rule 315. If this omitted or amended counterclaim exceeds the jurisdiction of the county court, upon request of the defendant to transfer the case to district court and the tendering of the district court filing fee for a complaint, all county court proceedings shall be discontinued and the clerk of the county court shall certify all records in the case and forward the docket fee to the district court. If it is determined that the defendant's request for transfer was made for the purpose of delaying the trial of the plaintiff's claim, the district court shall award the plaintiff any costs, including reasonable attorney's fees, occasioned by the delay.

(e) Cross Claim against Co-party. An answer may state a cross claim against a codefendant arising out of the same transaction or occurrence that is the subject matter of 1333 Counterclaim and Cross Claim Rule 313 the original action or relating to any property that is the subject matter of the original action. Such cross claim may include a claim that a party against whom it is asserted is or may be liable to the cross claimant for all or part of a claim asserted in the action against the cross claimant. A claim which either matured or was acquired by the defendant after filing the answer may, with the permission of the court, be presented as a cross claim by supplemental pleading. Any cross claim shall be limited to the jurisdictional limit of the county court, but the cross claimant shall have the right to dismiss the cross claim without prejudice at any time prior to trial, except that a dismissal operates as an adjudication upon the merits when requested by the cross claimant who has once dismissed in any court an action based on or including the same claim.

(f) Joinder of Additional Parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross claim in accordance with the provisions of Rules 319 and 320.

(g) Claims against Assignor or Assignee. Except as otherwise provided by law as to negotiable instruments, any claim, counterclaim, or cross claim which could be asserted against an assignor at the time of or before notice of an assignment, may be asserted against an assignee of the assignor, to the extent that such claim, counterclaim, or cross claim does not exceed recovery upon the claim of the assignee.

Committee Notes

Source: (a), the introductory portion to (b), and (b)(2) amended and effective July 1,