Does the counterclaim survive when the original claim is dismissed, or are both dismissed at the same time/as part of the same action?

If the counterclaim does not survive dismissal, could the party still bring a separate claim against the opposing party?


There are two possibilities in the U.S. (which I am assuming in the absence of a specified jurisdiction since the terminology tracks U.S. terminology):

  1. If you are in federal court where the original claim was necessary to create subject-matter jurisdiction and the permissive counterclaim did not suffice to create subject-matter jurisdiction on its own, the permissive counterclaim would be dismissed without prejudice and could be brought as a separate claim in state court. The most common sources of subject-matter jurisdiction in federal court are a "federal question" and "diversity of citizenship" with more than $75,000 in controversy.

  2. If you are in state court, or if you are in federal court and the permissive counterclaim is sufficient to create subject-matter jurisdiction on its own, then the counterclaim is not dismissed and continues on until the case is resolved.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.