NOTES TO RULE 13

HISTORY: (Amended Mar. 19, 1948; July 1, 1963; July 1, 1966; Aug. 1, 1987)

Notes of Advisory Committee on Rules.

1. This is substantially former Equity Rule 30 (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, rr 2 and 3, and O 21, rr 10--17; Beddall v Maitland, LR 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; NJ Comp Stat (2 Cum Supp 1911--1924), NYCPA (1937) §§ 262, 266, 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 82 (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 LJ 393, 410 et seq.

6. This rule does not affect such statutes of the United States as USC, Title 28, former § 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.

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 US 360, 43 S Ct 149 (1922); Marconi Wireless Telegraph Co. v National Electric Signalling Co.  206 Fed 295 (ED NY, 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 USC, Title 26, § 3772(a)(1)(2)(b)(Suits for refunds of internal revenue taxes--limitations); USC, Title 28, former § 774 (now § 2406) (Suits by United States against individuals; credits), former § 775 (Suits under postal laws; credits); USC, Title 31, § 227 (Offsets against judgments and claims against United States).

Notes of Advisory Committee on 1946 amendments to Rules.

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 DC 1943, 77 US App DC 144, 134 F2d 16, 33--34, cert den, 1943, 319 US 745, 63 S Ct 1033. 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 13(g).

Subdivision (i).

The change clarifies the interdependence of Rules 13(i) and 54(b).

NOTES of Advisory Committee on 1963 amendments to Rules.

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 13(a).  Clause (2), added by amendment to Rule 13(a), carries out this idea. It will apply to various cases described in Rule 4(e), 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 1966 amendments to Rules.

Rule 13(h), dealing with the joinder of additional parties to a counterclaim or cross-claim, has partaken of some of the textual difficulties of Rule 19 on necessary joinder of parties. See Advisory Committee's Note to Rule 19, 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 13(h) 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 20 are satisfied.

The amendment of Rule 13(h) supplies the latter omission by expressly referring to Rule 20, as amended, and also incorporates by direct reference the revised criteria and procedures of Rule 19, 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 19 and 20 are to be applied in the usual fashion.  See also Rules 13(a) (compulsory counterclaims) and 22 (interpleader).

The amendment of Rule 13(h), like the amendment of Rule 19, does not attempt to regulate Federal jurisdiction or venue. See Rule 82. 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 1987 amendments to Rules.

The amendments are technical. No substantive change is intended.