A cross-claim and a counterclaim both let a party assert new claims inside an existing lawsuit, but they point in different directions. A counterclaim is a claim filed against the party who sued you. A cross-claim is a claim filed against someone on your own side of the case, usually another defendant. Both are governed by Rule 13 of the Federal Rules of Civil Procedure, and confusing the two can cost a party the right to bring a claim at all.1Office of the Law Revision Counsel. 28 USC App Fed R Civ P Rule 13 – Counterclaim and Crossclaim
What a Counterclaim Is
A counterclaim is a defendant’s way of suing the plaintiff back within the same case. Instead of opening a separate action, the defendant asserts a claim for relief directly against the person who filed the original complaint. Both sides now have live claims against each other, and the court resolves them together.
Counterclaims come in two varieties, and the difference between them is one of the most consequential procedural distinctions in civil litigation.
Compulsory Counterclaims
A compulsory counterclaim is one that arises out of the same transaction or occurrence as the plaintiff’s original claim. If you have a claim against the plaintiff that grows out of the same set of facts the plaintiff is suing over, you must raise it in your answer. Skip it, and you lose it. If the case goes to judgment without the counterclaim being raised, the counterclaim is barred.1Office of the Law Revision Counsel. 28 USC App Fed R Civ P Rule 13 – Counterclaim and Crossclaim
This is where defendants get tripped up most often. In the rush of responding to a lawsuit, it is easy to focus entirely on defense and forget you have your own claims to assert. By the time you realize you should have counterclaimed, the window has closed. Narrow exceptions exist, including situations where the counterclaim was already the subject of another pending lawsuit when the current action started, or where the plaintiff sued through a process that did not give the court personal jurisdiction over you.1Office of the Law Revision Counsel. 28 USC App Fed R Civ P Rule 13 – Counterclaim and Crossclaim Outside those situations, the use-it-or-lose-it rule applies.
Permissive Counterclaims
A permissive counterclaim is any counterclaim that is not compulsory. It does not have to arise from the same events as the plaintiff’s lawsuit. You can raise it in the current case, or you can file it as a separate action later without penalty.1Office of the Law Revision Counsel. 28 USC App Fed R Civ P Rule 13 – Counterclaim and Crossclaim If a landlord sues a tenant for unpaid rent, the tenant could file a permissive counterclaim for a completely unrelated personal injury that happened on the landlord’s other property. The claims share a plaintiff and defendant but nothing else.
What a Cross-Claim Is
A cross-claim goes sideways rather than backward. It is a claim by one party against a co-party, meaning someone on the same side of the lawsuit. The most common scenario is one defendant filing a cross-claim against another defendant, typically arguing that the co-defendant is the one who should bear all or part of the liability.
Under Rule 13(g), a cross-claim must arise out of the same transaction or occurrence as the original lawsuit or a counterclaim, or it must relate to property at issue in the case.1Office of the Law Revision Counsel. 28 USC App Fed R Civ P Rule 13 – Counterclaim and Crossclaim You cannot use a cross-claim to bring in a dispute that has nothing to do with the case at hand.
Say a homeowner sues both a general contractor and a plumbing subcontractor for water damage. The general contractor files a cross-claim against the subcontractor, alleging that the subcontractor’s faulty installation caused the problem and that the subcontractor should reimburse whatever the general contractor ends up owing the homeowner. The cross-claim lets the court sort out who is responsible for what in a single proceeding.
Contribution and Indemnity
Most cross-claims come down to two concepts. Contribution means “I had to pay more than my fair share, and you owe me the difference.” Indemnity means “this is entirely your fault, and you should cover the full amount.” A general contractor seeking full reimbursement from a subcontractor is pursuing indemnity. Two co-defendants who were both partly at fault might seek contribution from each other based on their relative shares of blame.
The Key Differences
The most fundamental difference is the direction of the claim. A counterclaim is aimed at an opposing party. A cross-claim targets someone on your own side of the case. That is not just a technicality; it determines which procedural rules apply and what happens if you do not file.
- Direction. A counterclaim runs from defendant to plaintiff (or from plaintiff back to a counterclaimant). A cross-claim runs from one co-party to another, most often defendant to defendant.
- Compulsory versus permissive. Counterclaims can be compulsory, meaning you lose them if you do not raise them. Cross-claims are always permissive under the federal rules. The word “may” in Rule 13(g) means a party can choose whether to bring a cross-claim now or file a separate action later.1Office of the Law Revision Counsel. 28 USC App Fed R Civ P Rule 13 – Counterclaim and Crossclaim
- Scope. A permissive counterclaim can involve completely unrelated events. A cross-claim must relate to the same events as the original lawsuit or the property at issue.
- Purpose. A counterclaim seeks independent relief against the person who sued you. A cross-claim typically seeks to shift or share liability among co-parties.
The practical takeaway is that the stakes of getting a counterclaim wrong are higher. Forget to file a compulsory counterclaim and the claim is gone permanently. Forget to file a cross-claim and you can still pursue it in a separate lawsuit, though doing so costs more time and money.
When and How to File
Both counterclaims and cross-claims are raised in a party’s answer, the formal written response to the complaint. There is no separate document. The claim is laid out in the answer, after the defenses, so all related claims land in front of the court early.
Deadlines vary by jurisdiction, but in federal court a defendant generally has 21 days after being served to file an answer. Government defendants get longer. Because compulsory counterclaims must appear in the answer or be waived, the deadline to answer is effectively the deadline to counterclaim. Cross-claims, because they are permissive, can sometimes be added later by amending the pleading with the court’s permission.
If Someone Files One Against You
If a counterclaim or cross-claim is filed against you, you have to respond. Under Rule 12, you have 21 days after being served with the pleading to file an answer. If the United States or a federal agency is the party being served, the deadline extends to 60 days.2Cornell Law School. Federal Rules of Civil Procedure Rule 12 – Defenses and Objections: When and How Presented
Missing that deadline is dangerous. When a party fails to respond to a claim seeking relief, the opposing side can ask the clerk to enter a default, and from there the court can enter a default judgment, meaning you lose on the claim without ever getting to argue your side.3GovInfo. Federal Rules of Civil Procedure Rule 55 – Default and Default Judgment Courts can set aside a default for good cause, but relying on that is a gamble. Treat a counterclaim or cross-claim with the same urgency as the original complaint.
How a Cross-Claim Differs From a Third-Party Claim
Cross-claims are often confused with third-party claims, also called impleader. The difference is simple. A cross-claim is against someone who is already in the lawsuit. A third-party claim brings someone entirely new into it.
Under Rule 14, a defendant who believes an outside party is responsible for all or part of the plaintiff’s claim can file a third-party complaint to bring that party into the case. The defendant becomes a “third-party plaintiff,” and the new party becomes a “third-party defendant.” If the third-party complaint is filed more than 14 days after the defendant’s original answer, the defendant needs the court’s permission.4Cornell Law School. Federal Rules of Civil Procedure Rule 14 – Third-Party Practice
Take the homeowner-contractor example again. If the subcontractor was already named as a defendant in the original lawsuit, the general contractor files a cross-claim. If the homeowner only sued the general contractor and the subcontractor was not part of the case, the general contractor files a third-party complaint to bring the subcontractor in. Same underlying dispute, different procedural mechanism depending on whether the target is already a party.
Federal Jurisdiction and Permissive Counterclaims
Federal courts can only hear claims when they have subject matter jurisdiction, and the type of claim you are filing determines whether you need an independent basis for jurisdiction or can piggyback on the court’s existing authority over the main case.
Compulsory counterclaims and cross-claims arise from the same events as the original lawsuit. Because they are so closely related to the main case, they fall under supplemental jurisdiction. As long as the court has original jurisdiction over the plaintiff’s claim, it can hear related claims that form part of the same case or controversy without any additional jurisdictional basis.5Office of the Law Revision Counsel. 28 USC 1367 – Supplemental Jurisdiction
Permissive counterclaims are a different story. Because they do not arise from the same events, they generally need their own independent basis for federal jurisdiction, such as diversity of citizenship or a separate federal question. A defendant who tries to tack an unrelated state-law claim onto a federal case without an independent jurisdictional hook will see the claim dismissed and have to refile in state court.