In Search of the Transaction or Occurrence: Counterclaims
Douglas D. McFarland
Mitchell|Hamline School of Law
Creighton Law Review, Vol. 40, p. 699, 2007
The “transaction or occurrence” is the cornerstone of joinder in the Federal Rules of Civil Procedure. A counterclaim arising out of the same transaction or occurrence as the claim is compulsory; a counterclaim not arising out of the same transaction or occurrence is permissive. A cross-claim must arise out of the transaction or occurrence of the claim or a counterclaim. A third-party defendant may assert a claim against the plaintiff that arises out of the transaction or occurrence of the claim; the plaintiff may return the favor. An amendment relates back when it arises out of the “conduct, transaction, or occurrence” of the original pleading. Permissive joinder of parties is allowed when the right to relief arises out of the same “transaction, occurrence, or series of transactions or occurrences.” This article is about the one area of joinder that produces by far the most difficulty, judged by the volume of reported decisions: compulsory counterclaims. Part II of this article identifies the historical antecedents for the choice of transaction or occurrence as the base of the counterclaim rule. Part III explores the interpretation of transaction or occurrence in compulsory counterclaim cases by federal courts. Part IV argues for proper broad, fact-based interpretation of the transaction or occurrence in compulsory counterclaim cases.
This is a companion article to the following: McFarland, Douglas. "Seeing the Forest for the Trees: The Transaction or Occurrence and the Claim Interlock Civil Procedure," Florida Coastal Law Review, Vol. 12, no. 2, p. 247-304, 2011.
Number of Pages in PDF File: 34
Keywords: Transaction, occurrence, joinder, Federal Rules of Civil Procedure, counterclaim,
Date posted: November 19, 2011
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