1

Prof. Kent Sinclair said in a conference

"... over 40 states had adopted a compulsory counterclaim rule."

but he didn't say their names. Who knows which states have such rule? (I found a table on the web with their names but I can't find them now.)

  • I found only 13 jurisdictions; Alaska, Arizona, Delaware, Florida, Kentucky, Missouri, Nevada, New Mexico, Commonwealth of Puerto Rico, Texas, Utah, Iowa and Minnesota. Wright, C. (1954). Estoppel by rule: The compulsory counterclaim under modern pleading. Iowa Law Review 39(2), 255-299. p. 256-257. – Reza Bastani Apr 24 '18 at 11:19
2

Advisory Committee on Rules of Court reported on October 1, 2007:

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.

States in which Compulsory counterclaim rule exists 1

States in which Compulsory counterclaim rule exists 2

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  • I can see only 40 states in above list; then how they counted them 42 states? – Reza Bastani Apr 24 '18 at 19:35
  • Perhaps a couple of states flipped between the date of the survey and the date of the official commentary. It is also possible that somebody screwed up the math. Lawyers are not known for their excellence in math. – ohwilleke Apr 24 '18 at 23:16
  • @ohwilleke I found two different reports, one with the survey (bit.ly/ACRC1) and one without (bit.ly/ACRC2); therefore the survey and report didn't draft simultaneously. – Reza Bastani Apr 25 '18 at 19:20
  • and that gets us to 43: "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 Wisconsin appear to apply this "common law" compulsory counterclaim principle, even though they have not codified a compulsory counterclaim Rule of Court." Presumably the rest of the report explains that one of the 43 states says that it has the rule but doesn't apply it that way. – ohwilleke Apr 25 '18 at 20:11
  • @ohwilleke As Prof. Shapiro said in Restatement (Second) of Judgments § 22(2)(b)(1982),"common-law compulsory counterclaim rule" has different nature than compulsory counterclaim rules which were created by statute or rule of court (bit.ly/shapi1) For example, he cited to "BANK OF MONTREAL v. Jack KOUGH, aka John Keller Kough" to proves his idea, while it was a case under the federal jurisdiction or he cited to a case in the superior court of new jersey while they had a compulsory rule by statue; so I think in this report they didn't count common-law rule in the beside of statute rules. – Reza Bastani Apr 26 '18 at 9:48

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