A counterclaim is a response made by a defendant in a lawsuit against the plaintiff. Some are mandatory, while others are optional. The defendant must file any required counterclaims or waive them forever. Set-off is an example of a counterclaim.
Once a lawsuit is filed against a party, any claim made in response by that defendant is considered a counterclaim. A separate action brought by the defendant in the first case against the plaintiff is a counterclaim. Both the plaintiff’s questions and the defendant’s questions are resolved in the course of the same proceeding. Some counterclaims are mandatory, while others are lax.
A counterclaim must be independent of and go beyond an answer to or denial of the plaintiff’s original claims. A defendant must include his question in the same document that he provides in response to the plaintiff’s questions. The procedure associated with filing this document varies by jurisdiction. Some jurisdictions may allow an extended time period for filing counterclaims.
The mandatory counterclaims are those which, at the time of the opening of the case, derive from the same operation or object of the plaintiff’s pleadings. These claims cannot add another party to the lawsuit if the court cannot acquire jurisdiction over the third party. The complaint cannot be the subject of another lawsuit at the time the current lawsuit has been initiated. The court must also have personal jurisdiction over the counterclaiming party, or if personal jurisdiction has not been established, some form of compulsory claim must be made.
Any mandatory counterclaim not filed in an ongoing case is lost forever. The defendant to the opening pleadings must bring any required counterclaims he may have against the other party, or he waives them forever. A permissive counterclaim is not mandatory. These questions may be raised, but the right to raise them is not revoked if the respondent chooses not to raise them at that time.
Set-off is an example of a counterclaim where the defendant seeks to reduce damages in an action based on a stand-alone lawsuit. If two parties have been in an accident and it is not clear who is at fault, one party could sue the other party, claiming damages as a result of the accident. The other party becomes a defendant and could file a counterclaim claiming that in fact the plaintiff was responsible for the accident and should compensate the defendant.
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