Rule 55.32 Counterclaim and Cross-Claim

• Library: Civil Procedure (2007 Ed. + 2013 Supp)

XXXII. Rule 55.32 Counterclaim and Cross-Claim

A. Text of Rule

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim that at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if:

(1) At the time the action was commenced the claim was the subject of another pending action;

(2) The opposing party brought suit upon the claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 55.32; or

(3) The opposing party brought suit for the purpose of obtaining court approval of a settlement when such approval is required by statute.

(b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.

(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.

(d) Counterclaim Maturing or Acquired After Pleading. A claim that either matured or was acquired by the pleader after serving the pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.

(e) Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect or when justice requires, the counterclaim may be set up by amendment by leave of court.

(f) Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

(g) Joinder of Additional Parties. Parties other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 52.04 and 52.05.

(h) Separate Trials; Separate Judgments. If the court orders separate trials as provided in Rule 66.02 judgment on a counter-claim or cross-claim may be rendered even if the claims of the opposing party have been dismissed or otherwise disposed of.

B. Historical Note

The Rule was amended in 1993 to make it gender neutral. Rule 55.32(a)(3) was added in an amendment enacted June 21, 2005, effective January 1, 2006. Rule 55.32 is derived from former Rules 55.45–55.51. The statutory predecessors of Rule 55.32 are §§ 509.420–509.470 and 511.040, RSMo 2000. Rule 55.32 was promulgated by the Supreme Court of Missouri under the authority of Article V, § 5, of the Missouri Constitution. Rule 55.32 supersedes the predecessor statutes when they are inconsistent. See State ex rel. Peabody Coal Co. v. Powell, 574 S.W.2d 423, 426 (Mo. banc 1978); see also Rule 41.02.

C. Cross-References

See §§ 509.420–509.470 and 511.040, RSMo 2000. Rule 55.32 should be read in relation to Rule 55.06 dealing with joinder of claims. Rule 55.32 is substantially the same as Federal Rule of Civil Procedure 13.

D. Time Constraints

None. See Rule 55.25 above discussing time constraints on pleading.

E. Comment

1. Counterclaim

A counterclaim is an independent cause of action existing in favor of a defendant against a plaintiff. A counterclaim should be distinguished from a defense to the plaintiff's claim. Any set of facts that defeats the plaintiff's claim is a defense and not properly set out as a counterclaim. By contrast, a defendant pleading a counterclaim seeks a judgment on the defendant's own behalf. A defendant's counterclaim may seek relief that exceeds the plaintiff's claim. A counterclaim...