This one is fun. The Delaware Court of Chancery considered the availability of “counterclaims-in-reply” (plaintiff pleads acounterclaim in its Answer to Defendant’s Counterclaims). Delaware follows the FRCP, so the court surveilled the state of federal law, which is a mess among six positions.
1. Never allowed, because counter-counterclaim is not an enumerated pleading in FRCP 7(a).
2. Allowed, because “Answer to a Counterclaim” is an allowed pleading and “a pleading” can state a counterclaim. Wright & Miller recognize that this approach comports with the plain language of Rule 7(a) and 13.
3. Allowed if the counterclaim-in-reply is compulsory to the counterclaim.
4. Allowed if permissive.
5. Treat the proposed counterclaim-in-reply as a motion for leave to amend the complaint to include this new claim. W&M recommend this as the “more orderly procedure.”
6. As a limit on #5: Ask what the counterclaim-in-reply is trying to do. If it is an effort to amend the complaint, treat it as a motion for leave (subject to Rule 15). If it is attached to a different pleading, allow it as a counterclaim-in-reply.
The court adopted # 2 for its consistency with the plain language. It recognized that # 5 is more orderly, but it declined to automatically treat everything as a motion for leave to amend.
In rejecting # 1, the court makes a point I share with my students: Counterclaim is not an enumerated pleading. It is a claim contained within some other pleading, such as an Answer to a Complaint or, here, an Answer to a Counterclaim.1 Responding to the defendant’s concern for a “procedural nightmare” of counterclaims to counter-counterclaims ad infinitim, the court notes the absence of any cases in which this has happened despite Rule 13 being materially unchanged since 1938.
Not sure whether to present this as an in-class problem or an essay next spring.
- Also true of crossclaims. But not third-party claims, which must appear in their own pleading, called Third-Party Complaint. ↩︎