Should the Raising of Transactionally-Related Counterclaims Be a Required Part of Defendant's Answer in Virginia Practice

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1 TO: The Bench and Bar of Virginia FROM: Advisory Committee on Rules of Court DATE: October 1, 2007 Should the Raising of Transactionally-Related Counterclaims Be a Required Part of Defendant's Answer in Virginia Practice The Advisory Committee on Rules of Court is seeking public comment on the question whether, in light of the developments in law and equity and the new res judicata Rule of 2006, a Rule of Court should be created requiring that those counterclaims which arise from the same conduct, transaction or occurrence as the claims of the plaintiff must be raised in the pending lawsuit, rather than remaining available for a second lawsuit later. This concept has not been approved by the Advisory Committee or recommended to the Judicial Council of Virginia. Rather, the Advisory Committee has resolved that it desires input from the bench and bar, and the general public, on the question. A draft Rule is included below to indicate the general nature of the similar rules that exist in federal practice and in about 4/5ths of all the States. Please send comments on the possible Rule change set forth below to Karl Hade, Executive Secretary, Supreme Court of Virginia, 100 North Ninth Street, Richmond, Virginia 23219, by March 15, Brief Background Report on Pleading Counterclaims The historical practice in Virginia has treated all counterclaims as "permissive," that is, a defendant has had no obligation to plead counterclaims against a plaintiff even if the possible counterclaims arise from the same conduct, transaction or occurrence that the plaintiff will be 1

2 litigating in the plaintiff's case. This doctrine has now been abandoned in 42 other states, the District of Columbia, and the federal courts. Recent adoption by the Court of Rule 1:6 makes continued adherence to the "all counterclaims are permissive" doctrine a dramatic anomaly, and arguably invites abuse of the judicial system by a defendant in precipitating multiple lawsuits over the same events. A. What Other States Do The rules in 42 states, the District of Columbia, and the 95 federal district courts reflect the judgment of almost all American jurisdictions, which have decided in the last 70 years that a defendant should bring any counterclaim available against the plaintiff as part of the original lawsuit if the counterclaim arises out of the same conduct, transaction or occurrence as the plaintiff's claim. COUNTERCLAIM SURVEY STATE/CIRCUIT Transactionally Related Counterclaims are COMPULSORY Alabama Ala. Civ. P. Rule 13 Alaska Alaska R. Civ. P. 13. Transactionally Related Counterclaims are PERMISSIVE ONLY Arizona Ariz. R. Civ. P. 13(a) Arkansas Ark. R. Civ. P. 13 California Cal. Code of Civ. P Colorado Colo. R. Civ. P. 13 Connecticut Practice Book 10-10, Delaware Del. Rule 13 Florida Fla. R. Civ. P. Rule Georgia Ga. Code Ann., Hawaii Haw. R. Civ. P. 13 Idaho Idaho R.Civ. P. Rule 13 Illinois 735 ILCS 5/2-608 Indiana Ind. Trial Proc. R. 13 Iowa Iowa Rule Kansas Kan. St Kentucky Ky. Civ. Rule Louisiana La. Code Civ. P. art

3 Maine Me. Civ. Rule 13 Maryland Md. Rule Massachusetts Mass. R. Civ. P. 13 Michigan Not compulsory. Minnesota Rules of Civil Procedure Mississippi Miss. R. Cv. P. 13 Missouri Mo. R55.32 Montana Mont. Rule 13(a) Nebraska Neb. Rev. Stat , -705 Nevada Nev. R. Civ. P. 13 New Hampshire N.H. Practice Civ New Jersey Rule 4:7-1 New Mexico N. Mex. R New York N.Y. C.P.L.R and 3019 North Carolina N.C. RCP 1A-1, Rule 13 North Dakota N.D. Rule 13(a) Ohio Ohio Civ. R. Rule 13 Oklahoma 12 Okla. Stat. Ann Oregon Lee v. Mitchell, 953 P.2d 414 (1998) Pennsylvania Pa. Rule No Rhode Island R.I. Rule 13 South Carolina S.C. Civ. Rule 13 South Dakota S.D. Civ. L (a) Tennessee Tenn. R. Civ. P. Rule Texas Tex. R. Civ. P. 97 Utah Utah Rule 13 Vermont Verm. Rule 13 Virginia No. Washington Wash. R Civ Ltd Juris CRLJ 13 West Virginia W.Va Rule 13 Wisconsin Code (1) Wyoming Wyo. C.P. Rule Federal District F. R. Civ.P. 13 Courts in 50 States Several of the states that have not adopted a broad-scale compulsory counterclaim rule consider a defendant's later claim barred "by res judicata" if the effect would be to nullify or undermine the effect of the judgment in plaintiff's prior case against that defendant. Illinois, New York and 3

4 Wisconsin appear to apply this "common law" compulsory counterclaim principle, 1 even though they have not codified a compulsory counterclaim Rule of Court. B. The Conduct Transaction or Occurrence Test is Widely Used in Virginia Law and Procedure to Determine What a Claim Is. Legislative Wave of Change. In 1977, the Virginia General Assembly enacted Code and , permitting the joinder of tort and contract claims and authorizing the pleading of alternative theories of recovery in a single action. See Powers v. Cherin, 249 Va. 33, 37, 452 S.E.2d 666, 668 (1995) (recognizing that overruled the long-standing prohibition against joinder of tort and contract claims found in Virginia case law ). Basic Pleading for Plaintiffs and Defendants. These two fundamental statutes govern all of the basic forms of legal claims in Virginia: A plaintiff's claims against a defendant are addressed by Code , which is structured to allow any and all claims or legal theories "provided that all claims so joined arise out of the same transaction or occurrence." Claims by defendants 1 Scholars have noted that determining when a defendant's later claim against a former plaintiff will "nullify" or "undermine" the judgment in the prior lawsuit is sometimes difficult, or "fuzzy." See Kevin M. Clermont, Common-Law Compulsory Counterclaim Rule: Creating Effective and Elegant Res Judicata Doctrine, 79 NOTRE DAME L.REV (2004). This "common law" compulsory counterclaim requirement applies in most jurisdictions, and has been summarized in the influential text of the Restatement (Second) of Judgments 22(2)(b). In comment (f) to that provision the American Law Institute explains: f. Special circumstances under which failure to interpose a counterclaim will operate as a bar. Normally, in the absence of a compulsory counterclaim statute or rule of court, the defendant has a choice as to whether or not he will pursue his counterclaim in the action brought against him by the plaintiff. There are occasions, however, when allowance of a subsequent action would so plainly operate to undermine the initial judgment that the principle of finality requires preclusion of such an action. This need is recognized in Subsection (2)(b). For such an occasion to arise, it is not sufficient that the counterclaim grow out of the same transaction or occurrence as the plaintiff's claim, nor is it sufficient that the facts constituting a defense also form the basis of the counterclaim. The counterclaim must be such that its successful prosecution in a subsequent action would nullify the judgment, for example, by allowing the defendant to enjoin enforcement of the judgment, or to recover on a restitution theory the amount paid pursuant to the judgment (see Illustration 9), or by depriving the plaintiff in the first action of property rights vested in him under the first judgment (see Illustration 10). Ordinarily the conclusion that the subsequent action could not be maintained under Subsection (2)(b) would not be reached unless the prior action had eventuated in a judgment for plaintiff since only in such a case would there be the threat of nullification of the judgment or of impairment of rights to which the Subsection is addressed. 4

5 whether as counterclaims against the plaintiff, or as cross-claims against co-party defendants are controlled by Code , which allows the pleading of "alternative facts and theories of recovery against alternative parties, provided that such claims, defenses, or demands for relief so joined arise out of the same transaction or occurrence." Thus these two statutes address the broad range of claims in Virginia litigation today, and both have applied the central "transaction" test since These statutes represented a radical departure from the common law by clearly recognizing the propriety of litigating multiple diverse claims in a single proceeding. The Supreme Court remarked on the great difference between the restrictions of the common law and the current Virginia statutes in Fox v. Deese, 234 Va. 412, 362 S.E.2d 699 (1987). 2 Later Claims and Amendment. Numerous other statutes in Virginia use the concept of the same transaction and occurrence to determine what the "same claim" actually is in Virginia today. Perhaps the most important of these are the amendment statutes passed by the General Assembly. These two provisions, Code and , deal with the common situation where a party pleads a different legal theory or different "cause of action" later in a case, and the question arises whether it is the "same claim" as originally advanced the issue is important because if the claim is "the same" then the statute of limitations was tolled upon the filing of the original suit. These statutes control whether a claim is forever barred. Thus the amendment statutes apply in a core aspect of Virginia law a definition of exactly what is the "same claim." In these enactments, the General Assembly has twice taken the position that the defining question is whether the same conduct or transaction was raised in the original action. Code , in addressing the amending of pleadings and the "relation back" of a later claim to the "original pleading," provides that the very first issue and the bedrock test is whether "the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading." More recently, the General Assembly again used this test in a section specifically addressing the situation where a party comes up with new versions of the claim months or years after the first claim was brought. Code , dealing with pleadings "changing or adding a claim or 2 See also Kamlar Corp. v. Haley, 224 Va. 699, 707, 299 S.E.2d 514, 518 (1983). Consider too Code , enacted in It likewise used the same transaction or occurrence test to determine whether an amendment related back to the time of filing of the initial pleading for purposes of the statute of limitations. 5

6 defense" requires that the first and fundamental issue to be determined is whether "(i) the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading." Thus, in the view of the General Assembly, by previously bringing any claim on the same transaction, the party has made the core grievance a part of the litigation, and any variation on the cause of action, legal theory or elements of a specific claim for recovery are merely variants of the way to demand relief for the underlying injury-in-fact, the plaintiff's actual damage or loss. If the transaction is the same, it's the same claim. Statute of Limitations Use of the Transactional Test for Counterclaims. The same "transactional" measure of what is a proper unit of litigation has been adopted by the General Assembly for measuring the statute of limitations on counterclaims by a defendant against a plaintiff and the limitations period for cross-claims by one defendant against another defendant. Code defines the commencement date of litigation in Virginia for both counterclaims and cross-claims by reference to when the transaction was first placed before the court for consideration in the first pleading by the plaintiff. It provides that "[i]f the subject matter of the counterclaim or cross-claim arises out of the same transaction or occurrence upon which the plaintiff's claim is based, the statute of limitations with respect to such pleading shall be tolled by the commencement of the plaintiff's action." Joinder of Multiple Claims. More recently still, the General Assembly applied the factual transaction test to define what the "same claim" is for purposes of joinder of six or more lawsuits arising from a common tort. In Code the Legislature authorized consolidation of multiple claims where "[s]eparate civil actions brought by six or more plaintiffs involve common questions of law or fact and arise out of the same transaction, occurrence or series of transactions or occurrences." The same test is applied in Code (transfer and consolidation of multiple lawsuits which "arise out of the same transaction, occurrence or the same series of transactions or occurrences"). The Nonsuit Statute Uses the Transaction Test. Virginia's nonsuit statute, as revised in 1977 and more recently amended, today requires use of the transaction test to determine whether a 6

7 counterclaim, cross-claim or third-party claim involves the same claim that the plaintiff put forward in the original pleading. The test under the current statute for determining whether to allow a nonsuit with other claims pending requires a determination whether a "counterclaim, cross claim or third-party claim... arises out of the same transaction or occurrence as the claim of the party desiring to nonsuit." Code (D). Litigation and Non-Litigation Statutes Use the Transaction Test. All of the foregoing statutes deal with core litigation issues, and they arise frequently. The General Assembly s adoption of these provisions and the application of these basic procedures without reports of any festering crises from the practicing bar is strong evidence that the transaction test is workable and deeply woven into current Virginia law. Many other statutes passed in recent years by the General Assembly use the transaction test for determining the scope of claims. The Committee located over two dozen statutes applying the transaction or occurrence test in such diverse subject areas as immunity for corporate officers of charitable organizations under Code :1 (limits on "damages assessed for acts taken in his capacity as an officer, trustee or director and arising out of a single transaction, occurrence or course of conduct"); general liability of corporate officers and directors ("damages assessed against an officer or director arising out of a single transaction, occurrence or course of conduct shall not exceed the lesser of... "); other corporate officer liability situations under Code , and (all defining claims as "arising out of a single transaction, occurrence or course of conduct"); compensation of attorneys in criminal cases under Code (determining the litigation "unit" for compensation purposes based on "violations arising out of the same incident, occurrence, or transaction"); several statutes dealing with multiple traffic violations, such as Code (limiting charges in alternative sections by precluding dual prosecutions for "actions arising out of the same transaction or occurrence") and Code on license restrictions (limiting penalties for "multiple convictions arising out of the same transaction or occurrence"); and failure to pay tolls under Code (barring multiple charges "arising out of the same transaction or occurrence"). Rules of Court. The most basic Rule of Court addressing the nature and content of pleadings, Rule 1:4, uses the concept of the conduct or transaction in framing its provision on the 7

8 appropriate range of matters that can be pled in a single case, allowing: "alternative facts and theories of recovery against alternative parties, provided that such claims, defenses, or demands for relief so joined arise out of the same transaction or occurrence." Other Rules of Court use the same concept. See, e.g., Rule 3:13, which allows third-party claims to be added to an ongoing litigation so long as the new claim arises "out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff." Every step of the third-party practice in Virginia is similarly limited, such that other claims between the defendant and third-party may be litigated in the action if they are claims "arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff." C. Implications for Continued Adherence to the "All Counterclaims are Permissive" Doctrine of Rule 1:6 and the Policies of Finality On February 28, 2006, the Supreme Court of Virginia adopted and promulgated Rule 1:6, which defines what a claim is for res judicata purposes. This provision is now effective and applies to all civil actions that have been commenced after July 1, Rule 1:6 provides: Rule 1:6. Res Judicata Claim Preclusion. (a) Definition of Cause of Action. A party whose claim for relief arising from identified conduct, a transaction, or an occurrence, is decided on the merits by a final judgment, shall be forever barred from prosecuting any second or subsequent civil action against the same opposing party or parties on any claim or cause of action that arises from that same conduct, transaction or occurrence, whether or not the legal theory or rights asserted in the second or subsequent action were raised in the prior lawsuit, and regardless of the legal elements or the evidence upon which any claims in the prior proceeding depended, or the particular remedies sought. A claim for relief pursuant to this rule includes those set forth in a complaint, counterclaim, cross-claim or third-party pleading. (b) Effective Date. This rule shall apply to all Virginia judgments entered in civil actions commenced after July 1, (c) Exceptions. The provisions of this Rule shall not bar a party or a party's insurer from prosecuting separate personal injury and property damage suits arising out of the same conduct, transaction or occurrence, and shall not bar a party who has pursued mechanic's lien remedies pursuant to Virginia Code 43-1 et seq. from prosecuting a subsequent claim against the same or different defendants for relief not recovered in the prior mechanic's lien proceedings, to the extent heretofore permitted by law. 8

9 (d) Privity. The law of privity as heretofore articulated in case law in the Commonwealth of Virginia is unaffected by this Rule and remains intact. For purposes of this Rule, party or parties shall include all named parties and those in privity. Provisions of the Rule. The new res judicata Rule has two provisions that merit separate note. First, the Rule uses the concept of the "conduct, transaction or occurrence" litigated in the first case as the definition of the essence of the prior claim for res judicata purposes. This accords with the Bar study group reports and was found to be the most practical distillation of the governing principles. When this res judicata Rule was being considered, the Advisory Committee was unanimous in concluding that the complete phrase, "conduct, transaction or occurrence," is well tested in American law as well as Virginia practice, and is the phrase used in the two most recent statutes passed by the General Assembly in the last decade where the scope of a cause of action is defined: Code (misnomer and adding parties in a suit on the same claim) and Code (amendment of pleadings will "relate back" to the time of the original filing if it's the same cause of action, defined as the "same conduct, transaction or occurrence" set forth in the initial pleading). The Committee felt strongly that using this established three-part definition would be the most clear and readily applied formula, lending predictability and stability to the doctrine. The Judicial Council unanimously agreed, and the Court promulgated the Rule in that form. Goals of Finality and Single Litigation. Res judicata embodies a strong public policy to avoid multiple litigations, Burks Pleading & Practice 357, at 672 (4th ed. 1952), and is a fundamental concept in the organization of every jural society. 2 Henry Campbell Black, A Treatise on the Law of Judgments Including the Doctrine of Res Judicata 500, at 760 (1902). 3 It protects not only individual and corporate litigants from the burdens of trying the same case twice, but also protects society from having to pay for multiple proceedings arising from the same facts. See Bill Greever Corp. v. Tazewell Nat l Bank, 256 Va. 250, 254, 504 S.E.2d 854, (1998) (the policy considerations underlying the doctrine of res judicata are: "avoiding a multiplicity of suits, protecting against vexatious litigation, and avoiding the costs and expenses associated with 3 See generally Allen v. McCurry, 449 U.S. 90, 94 (1980); Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 299 (1917) (Res judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, of public policy and of private peace, which should be cordially regarded and enforced by the courts to the end that rights once established by the final judgment of a court of competent jurisdiction shall be recognized by those who are bound by it in every way, wherever the judgment is entitled to respect. ). 9

10 numerous suits on the same cause of action ); Bates v. Devers, 214 Va. 667, 670, 202 S.E.2d 917, 920 (1974) ( res judicata rests upon considerations of public policy which favor certainty in the establishment of legal relations, demand an end to litigation, and seek to prevent the harassment of parties ). In almost all American jurisdictions, the concept is applied to counterclaims as well as a plaintiff's claims. Res Judicata's Core Mission. Claim preclusion bars the assertion of legal or equitable rights of action even if they were not specifically resolved in earlier litigation. A claimant is required to bring all claims relating to the dispute in the first litigation, on pain of being precluded from trying again on a different "theory" in a later action against the same defendant arising from the same facts. Called merger when the claimant wins the first suit and bar when the claimant loses it, claim preclusion under the doctrine of res judicata treats unasserted claims as being subsumed in the disposition of the related, previously adjudicated, claims. In essence, you can t have two bites at the apple. The law should afford one full, fair hearing relating to a particular problem but not two. This basic principle of res judicata in Virginia was well stated a century ago: Every litigant should have opportunity to present whatever grievance he may have to a court of competent jurisdiction; but having enjoyed that opportunity and having failed to avail himself of it, he must accept the consequences. Miller v. Smith, 109 Va. 651, 655, 64 S.E. 956, (1909). Thus, the effect of a final decree is not only to conclude the parties as to every question actually raised and decided, but as to every claim which properly belonged to the subject of litigation and which the parties, by the exercise of reasonable diligence, might have raised at the time. Smith v. Holland, 124 Va. 663, 666, 98 S.E. 676, 676 (1919) (emphasis added) (citing Diamond State Iron Co. v. Rang, 93 Va. 595, 25 S.E. 894 (1896); Miller v. Smith, 109 Va. 651, 64 S.E. 956 (1909)). Several statements of this underlying principle go back to the earliest formulations of Virginia res judicata law. 4 Once a party's claim on a "subject matter" and the defendant's defenses are decided, 4 See, e.g., Southern R. Co. v. Washington, A. & M. V. R. Co., 102 Va. 483, 491, 46 S.E. 784, 787 (1904) (recognizing that res judicata applies, except in special cases, not only to points upon which the court was actually required, by the parties, to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time (quoting Diamond State Iron Co. v. Alex K. Rarig Co., 93 Va. 595, , 25 S.E. 894, 897 (1896)); McCullough v. Dashiell, 85 Va. 37, 41, 6 S.E. 610, 612 (1888) ( [W]here every objection urged in the second suit was open to the party within the legitimate scope of the pleadings in the first suit, and might have been presented at that trial, the matter must be considered as having passed in rem judicatam, and the former judgment in such case is conclusive between the 10

11 the matter is "not now to be questioned in a subsequent controversy upon the same subject-matter between the same parties." Washington, O. & W. R. Co. v. Cazenove, 83 Va. 744, 752, 3 S.E. 433, 437 (1887). See Gimbert v. Norfolk Southern R.R. Co., 152 Va. 684, , 148 S.E. 680, 682 (1929) ("conclusive of the latter not only as to every question which was decided, but also as to every other matter which the parties might have litigated and had determined, within the issues as they were made or tendered by the pleadings or as incident to or essentially connected with the subject matter of the litigation, whether the same, as a matter of fact, were or were not considered"). New Rule 1:6 effectuates Code and , enacted in 1977, permitting the joinder of tort and contract claims and authorizing the pleading of alternative theories of recovery in a single action. Under the "law and equity reform" statutes and Rules approved in 2005, respectively, by the General Assembly and the Supreme Court, all claims may be brought in a single form of civil action commencing January 1, Other statutory changes in recent years use the conduct, transaction or occurrence approach in defining claims. See Code and , dealing with the common situation where a party pleads in a different legal theory or different "cause of action" later in a case, and the question arises whether it is the "same claim" as originally advanced. These Code sections apply the bedrock test of whether the claim asserted "arose out of the conduct, transaction, or occurrence set forth in the original pleading." This test applies under several other statutes in Virginia with respect to amendment of pleadings, adding of parties and claims, and in various statute of limitations contexts under existing provisions, and it parties. ); Withers Adm r v. Sims, 80 Va. 651, , 1885 Va. LEXIS 105, at *18-19 (1885) ( [A]ll those matters which were offered and received, or which might have been offered to sustain the particular claim or demand litigated in the prior action, and those matters of defence which were presented or which might have been introduced under the issue to defeat such claim, are concluded by the judgment or decree in the former suit, for to this extent the authorities certainly do go. ); Blackwell v. Bragg, 78 Va. 529, 541, 1884 Va. LEXIS 28, at *21 (1884) (quoting Le Guen v. Gouverneur & Kemble, 1 Johns. Cas. 436, 492 (N.Y. 1798)) ( Judge Radcliffe [in Le Guen] said: The principle, however, extends farther. It is not only final as to matters actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided. ); Shenandoah V. R. Co. v. Griffith, 76 Va. 913, 925 (1882) ( The doctrine of res judicata applies to all matters which existed at the time of giving the judgment or rendering the decree, and which the party had the opportunity of bringing before the court. ). 11

12 applies by statute in multi-claimant cases and under the nonsuit statute. Rule 1:6 applies the same test in res judicata issues. Implications for Counterclaims. The same policies which counsel in favor of requiring a plaintiff to bring all claims relating to a given transaction in a single lawsuit support the judgment that the vast majority of states have made that if the defendant has any claims against the plaintiff arising from that same event, the defendant should bring those claims in the first lawsuit, not in a second, separate lawsuit. A large number of the States have adopted a provision along the lines of the relevant Federal Rule: Rule 13. Counterclaim and Cross-Claim. (a)-- COMPULSORY COUNTERCLAIMS. A pleading shall state as a counterclaim any claim which 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, or (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 13. (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 AGAINST THE UNITED STATES. These rules shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims or to claim credits against the United States or an officer or agency thereof. (e)-- COUNTERCLAIM MATURING OR ACQUIRED AFTER PLEADING. A claim which either matured or was acquired by the pleader after serving a pleading may, with the permission of the court, be presented as a counter-claim by supplemental pleading. (f)-- OMITTED COUNTERCLAIM. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment. The current counterclaim Rule in Virginia practice is set forth in Rule 3:9, which is the subject of a minor timing amendment that is also pending. In its current form Rule 3:9 could be adapted to 12

13 embody the compulsory counterclaim principle, if that is ultimately determined to be best for the operation of the litigation system in Virginia, in the form shown on the following page: Further Background Reading: Both MOORE'S FEDERAL PRACTICE and Wright & Miller contain a discussion of the issues. See 3-13 Moore's Federal Practice - Civil and Wright, Miller & Kane, 6 Federal Practice and Procedure: Civil 2d

14 DRAFT RULE FOR DISCUSSION PURPOSES ONLY Rule 3:9. Counterclaims. (a) Scope. A defendant may, at that defendant's option, plead as a counterclaim any cause of action that the defendant has against the plaintiff or all plaintiffs jointly, whether or not it grows out of any transaction mentioned in the complaint, whether or not it is for liquidated damages, whether it is in tort or contract, and whether or not the amount demanded in the counterclaim is greater than the amount demanded in the complaint. (b) Compulsory and Permissive Counterclaims. (i) A defendant shall state as a counterclaim any claim that arises out of the transaction or occurrence that is the subject matter of the claim set forth in the complaint. A counterclaim need not be pled if a party necessary for its adjudication is not subject to the jurisdiction of the court, or if the claim is already the subject of another pending action. (ii). At the defendant's option, any claim not arising out of the transaction or occurrence that is the subject matter set forth in the complaint may be pled as a counterclaim. (iii) A claim which either matured or was acquired by the defendant after serving a pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading. (iv) When a defendant fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the defendant may by leave of court set up the counterclaim by amendment. (c) Time for initiation. A counterclaim shall, subject to the provisions of Rule 1:9, be filed within 21 days after service of the summons and complaint upon the defendant asserting the counterclaim, or if service of the summons has been timely waived on request under Code , within 60 days after the date when the request for waiver was sent, or within 90 days after that date if the defendant was addressed outside the Commonwealth. (d) Response to counterclaim. The plaintiff shall file pleadings in response to such counterclaim within 21 days after it is served. (e) Separate trials. The court in its discretion may order a separate trial of any cause of action asserted in a counterclaim. Comments are requested from the bench and bar on the wisdom of moving forward with an amendment to the Rules of Court of this nature. Please note that the Advisory Committee at its September, 2007 meeting decided to place the "opt out" provision in the first paragraph of the rule to elicit comments on whether that option for party agreement would be beneficial in avoiding the unnecessary pleading of counterclaims in cases where they would ordinarily not be pled. Other jurisdictions have not experienced problems making that provision necessary, and it is not in the federal rule. However, the Advisory Committee seeks comments from plaintiffs or defense practitioners as to whether that safety valve would be helpful. 14

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