Compulsory or Permissive Counterclaims
Under the Federal Rules of Civil Procedure, a counterclaim arising out of the same transaction or occurrence as the claim in the complaint is compulsory and the defendant must raise the counterclaim in the answer. A compulsory counterclaim “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” Fed.R.Civ.P. 13(a). Failure to assert a compulsory counterclaim in the answer precludes a later assertion of that claim in a subsequent or independent action, but failure to assert a permissive counterclaim does not preclude its assertion in a subsequent action. See 46 Am. Jur. 2d Judgments § 504.
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