counterclaim


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Counterclaim

A claim by a defendant opposing the claim of the plaintiff and seeking some relief from the plaintiff for the defendant.

A counterclaim contains assertions that the defendant could have made by starting a lawsuit if the plaintiff had not already begun the action. It is governed by many of the same rules that regulate the claims made by a plaintiff except that it is a part of the answer that the defendant produces in response to the plaintiff's complaint. In general a counterclaim must contain facts sufficient to support the granting of relief to the defendant if the facts are proved to be true. These facts may refer to the same event that gave rise to the plaintiff's Cause of Action or they may refer to an entirely different claim that the defendant has against the plaintiff. Where there is more than one party on a side, a counterclaim may be made by any defendant against any plaintiff or plaintiffs.

According to the rules governing federal Civil Procedure, a defendant usually is required to make a counterclaim in an answer if the counterclaim arises from the same transaction or occurrence on which the plaintiff is suing. This is called a compulsory counterclaim because the claim must be made in response to the plaintiff's complaint and cannot be made later or in a separate lawsuit. There are also permissive counterclaims that may be made in the defendant's answer at a later time. A claim against the plaintiff that is based on an entirely different event is one kind of Permissive Counterclaim. For example, a man may sue a woman for money damages because of a minor injury and some property damage after their cars collided. Under the rules governing Pleading in most courts, the woman would be required to assert a demand for money damages for the same accident in her answer to the man's complaint or she would lose the right to sue on that claim. If the man also happens to be a neighbor who borrowed the woman's chain saw and never returned it, the woman could demand return of the saw as a counterclaim or she could wait and sue the man for that at some other time. She might decide to wait in order to sue in a different court or because she does not want to argue the different circumstances of both claims before the same jury.

A defendant usually cannot make a counter-claim if it is not possible to make the same claim by starting a lawsuit. For example, a lawsuit to collect on a claim cannot be started after the period of time allowed by a Statute of Limitations has run out. In certain situations, however, a defendant may assert an expired cause of action as a counterclaim. This procedure, allowed for reasons of fairness and justice, is called equitable recoupment. The court may reduce the plaintiff's money damages up to the amount of the defendant's counterclaim, but the defendant will not be allowed an affirmative recovery of money over and above the amount to which the plaintiff may be entitled.

Cross-references

Set-off.

counterclaim

n. a retaliatory claim by a defendant against a plaintiff in a lawsuit included in the defendant's answer and intending to off-set and/or reduce the amount of the plaintiff's original claim against the defendant. For example, Hotdog Products sues Barbecue Bill's Eatery for $40,000 for meat delivered to Bill's but not paid for, and Bill counterclaims that Hotdog owes him $20,000 for a load of bad chicken livers, so Hotdog is only entitled to $20,000. In many states the counterclaim is no longer allowed, in which case a cross-complaint, which is a separate complaint, must be filed by the defendant, but as part of the same lawsuit. On the other hand, in federal cases, if the defendant believes he/she/it has a legitimate counterclaim to reduce damages it must be alleged (stated) in the answer or it is barred from being considered. (See: answer, cross-complaint)

counterclaim

a cross-claim brought by a defendant in civil proceedings that is not a defence to the claim made by the plaintiff but that asserts an independent cause of action against him. In Scotland, it is available to a defender. See SET-OFF.
References in periodicals archive ?
The defendants filed several counterclaims, which were stayed until after the trial on Finnegan and Phillips' claims.
On March 9, 2010, the employee counterclaimed for defamation based on the publication of Theos' Sept.
* Have the costs of the collection action and any resulting counterclaim been considered?
'Therefore we also rightly put counterclaim, and so the counterclaim was upheld here just like the lower court upheld it.
Havens and the Vassars had hoped to use Stoerner's local celebrity status to market the company and attract business, according to their counterclaim. The attorney for Havens and the Vassars, Joseph W.
"Their suit would have us pay legal fees, and I was told it's typical when you respond" to also file a counterclaim, he said.
Controversially, the council also agreed to underwrite the costs of a counterclaim against Mrs Thompson initiated by Mr James.
In April 2007, the Licking County defendants filed a counterclaim against appellant seeking a declaration that appellant was a vexatious litigator pursuant to an Ohio statute.
The counterclaim demands Hilton refund 2 million dollars in royalties Antebi has paid the hotel heiress since it began selling her footwear products in 2007 and other money damages, the New York Post reported.
PALMER -- The multimillion-dollar legal wrangling continues between Mohegan Sun and Northeast Realty Associates, with a $25 million lawsuit already filed by the Palmer landowner and a $22 million counterclaim expected soon by the casino company.
On the first day a PS290,000 counterclaim from Sisu was thrown out by the judge.
Current conditions provide an opportunity for agents and brokers to work with carriers to offer expertise and advice to help their clients at community banks, credit unions and other financial institutions address counterclaim exposures and solutions.