Questions on Compulsory and Permissive Counterclaims

Questions Compulsory and Permissive Counterclaims

1) Think about the relationship between the compulsory counterclaim rule and the doctrine of claim preclusion (to the extent you can, since you haven't gotten much on claim preclusion at this point). If there were no compulsory counterclaim rule, would compulsory counterclaims still be barred by claim preclusion?

2) P, X and D get into a brawl. P sues D for battery.
May D counterclaim against P for breach of an unrelated contract?
Must he?
May D bring a counterclaim against P for D's damages in the brawl?
Must he?
Must D join X to his counterclaim against P?

3) P sues D in federal court. D fails to bring a cause of action against P that concerns the same transaction or occurrence (T or O) as P’s claim against D. D subsequently sues P in New York state court on the cause of action he refrained from bringing in the federal suit. New York has no compulsory counterclaim rule. Is D barred from bringing the cause of action anyway?

4) P sues D in NY state court. D fails to bring a cause of action against P that concerns the same T or O as P’s claim against D. (New York has no compulsory counterclaim rule.) D subsequently sues P in federal court on the cause of action he refrained from bringing in the New York suit. Is D barred from bringing the cause of action?

5) Why is Rule 13(b) so broad? Doesn't that mean that lots of irrelevancies could be brought up in a counterclaim?

6) What is the understanding of the "transaction or occurence" test for a compulsory counterclaim offered in the Williams v. Robinson case? Is it right? What would you recommend in its place? In answering this question try to figure out why certain counterclaims are made compulsory. What's the advantage of this rule?

7) P sues D in federal court in Cal. D makes pre-answer motion to dismiss for lack of PJ. D's motion is granted. Subsequently D sues P in federal court in NY on a cause of action that concerns same T/O as P’s earlier claim against D. P asserts defense that D is precluded from bringing action because it was a compulsory counterclaim in the earlier suit? Barred?

8) Officer X (NY) knows that he is likely to be sued under federal civil rights law by Y (NY). He feels that a New York state court would be more favorable to him than a federal court. How might X use the compulsory counterclaim rule (assuming it applies in NY state court) to ensure a NY state court forum for Y’s federal civil rights action?

9) Assume that D (Cal.) has contracted to buy a $45,000 car from P (NY). D has paid no deposit. D finds that the car is defective and refuses to pay. P sues D for the $45,000 in N.Y. state court. D brings a permissive counterclaim for breach of an unrelated contract for $45,000. May P remove to federal court? May D remove to federal court? Could D remove if his permissive counterclaim were for $80,000?

10) Assume that D (Cal.) has put $40,000 down to buy a $80,000 car from P (NY). D finds that the car is defective and refuses to pay the remaining $40,000. D also wants P to take the car and give D his deposit back. P sues D for the remaining $40,000 in N.Y. state court (which we can assume has a compulsory counterclaim rule). D brings his compulsory counterclaim for $40,000. May P remove to federal court? May D remove to federal court? Could D remove if the deposit was $76,000 and P was suing for the remaining $4000?

11) Can a plaintiff bring a motion to dismiss a compulsory counterclaim on PJ grounds? On venue grounds? What about if it is a permissive counterclaim and there would be no PJ over the plaintiff if the counterclaim were a free-standing lawsuit?

12) Assume that P sues D for battery in fed ct. D answers, asserting defense of insuff. service and joins a counterclaim for his own damages in the brawl. P argues that D has waived defense of insuff service by counterclaiming. Result? Is this questions answered by FRCP 12(b): "No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion"?

13) Same as 12, except D joins a counterclaim for breach of an unrelated contract.