Questions on Counterclaims

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 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.

14) The issue of statutes of limitations in connection with counterclaims is complex. Consider the following scenarios:

a) Doctor sues patient within the statute of limitations for breach of contract (because the patient has not paid for services). Patient joins as a recoupment (see F&K 1196) an action for malpractice. If pursued as an independent action, the malpractice action would be outside the statute of limitations. Is it nevertheless saved if it would have been within the statute of limitations if it had been brought as an independent action at the time that doctor brought his contract action? Is it nevertheless saved if it would NOT have been within the statute of limitations if it had been brought as an independent action at the time that doctor brought his contract action?

b) P sues D within the statute of limitations concerning a breach of contract. D brings as a setoff (see F&K 1197) an unrelated action against P for breach of a different contract. If pursued as an independent action, D's setoff would be outside the statute of limitations. Is D's setoff nevertheless saved if it would have been within the statute of limitations if it had been brought as an independent action at the time that P brought his contract action? Is D's setoff nevertheless saved even if it would have NOT been within the statute of limitations if it had been brought as an independent action at the time that P brought his contract action?

c) Same as b, except D brings a counterclaim for affirmative relief, not a setoff. If pursued as an independent action, D's counterclaim would be outside the statute of limitations. Is D's counterclaim nevertheless saved if it would have been within the statute of limitations if it had been brought as an independent action at the time that P brought his contract action? Is D's counterclaim nevertheless saved even if it would have NOT been within the statute of limitations if it had been brought as an independent action at the time that P brought his contract action?

d) P sues D in the S.D.N.Y. (in diversity) for battery under New York law concerning a brawl that P and D got into in New York City. P’s suit is filed 1 year after the brawl, which is at the very end of the statute of limitations for tort actions under New York law. A few weeks later D counterclaims for defamation against P for scurrilous remarks that P made concerning D during the brawl. If pursued as an independent action, D's counterclaim would be outside the statute of limitations. Is D's counterclaim nevertheless saved if it would have been within the statute of limitations if it had been brought as an independent action at the time that P brought his battery action? Is D's counterclaim nevertheless saved even if it would have NOT been within the statute of limitations if it had been brought as an independent action at the time that P brought his battery action?