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Asserting a Counterclaim Against the Plaintiff

A counterclaim is a claim by the defendant against the plaintiff. Under the Federal Rules of Civil Procedure, as well as under certain state court rules, certain counterclaims must be asserted in the answer itself. Otherwise, they may be barred by the doctrine of claim preclusion. Claims that must be filed with the answer are referred to as "mandatory" counterclaims. Generally, a counterclaim is "mandatory" if it relates to the transaction that is the subject of the plaintiff's complaint.

In most instances, a defendant is able to raise any claim that he or she has against the Plaintiff. If it is not related to the subject matter of the complaint, the counterclaim is referred to as "permissive".

The filing of a counterclaim is oftentimes done by a defendant to gain leverage in a lawsuit. Once the defendant interposes his or her counterclaim, the plaintiff then faces the risk that defendant will end up recovering damages against the plaintiff. For many plaintiffs, facing the risk of liability is an unpleasant surprise that motivates them to drop their claims or settle for less than the amount demanded in the complaint.

Typically, a counterclaim should be served with the defendant's answer form. Sometimes, a counterclaim is served later in the lawsuit. In such instances, the defendant may need to file a motion requesting permission of the court to interpose the counterclaim.

The form of a counterclaim is similar to the basic form of a complaint. Typically, the counterclaim is included in the same document at the answer, and is inserted after the defendant's denials and affirmative defenses. The counterclaimant's initial allegations should set forth the basis for the court's jurisdiction and venue. In addition, a counterclaimant should include basic allegations describing the parties, basic facts and the relief that is sought.

Counterclaims may be asserted by defendants in virtually the entire spectrum of civil cases. For example, in divorce cases, a defendant will frequently include, at the end of his or her divorce answer form, a counterclaim that requests a judgment of divorce and/or other relief, such as custody or visitation with minor children. In breach of contract cases, a defendant may allege in a counterclaim that it was the Plaintiff who breached the agreement. In credit card collection cases, many consumers file counterclaims alleging that the credit card company and/or collection agency violated state and federal debt collection statutes.

A defendant should carefully consider whether to file a counterclaim at the very outset of the litigation. Although counterclaims can increase the complexity of a litigation, they give leverage to defendants that can be high beneficial and dramatically alter the outcome of a civil lawsuit.

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