Delaware counterclaims and third-party claims: ten days to bring in a third party without leave

Two Delaware rules decide who else ends up in your case, and one of them runs on a very short clock.

Rule 14(a): a defending party may bring in a third party without asking the Court — but only "if the third-party plaintiff files the third-party complaint not later than 10 days after serving the original answer." After that it takes a motion on notice to everyone.

Rule 13(a) works the other way: some claims you have must be raised now or not at all.

The compulsory counterclaim

Del. Super. Ct. Civ. R. 13(a):

Compulsory counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the Court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon the claim by attachment or other process by which the Court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule.

Exception (2) has a condition inside it that is easy to miss: it applies only where "the pleader is not stating any counterclaim under this Rule." Assert one counterclaim and the exception falls away.

Rule 13(b) allows a permissive counterclaim — any claim against an opposing party not arising out of the same transaction or occurrence.

Rule 13(c) confirms a counterclaim "may or may not diminish or defeat the recovery sought", and may claim relief "exceeding in amount or different in kind".

If you left one out

Delaware provides two routes back, and they are more generous than the compulsory label suggests.

Rule 13(f):

Omitted counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment.

Four gateways — oversight, inadvertence, excusable neglect, or simply "when justice requires". That last one is not tied to any excuse at all.

Rule 13(e) covers a claim that "either matured or was acquired by the pleader after serving a pleading", which may be presented by supplemental pleading with the Court's permission. A claim you did not have yet was never compulsory.

For the amendment mechanics, see amending a Delaware pleading, where Rule 15(aa) requires the amended pleading to show plainly what changed.

Cross-claims against a co-party

Rule 13(g) allows a cross-claim arising out of the transaction or occurrence that is the subject matter "either of the original action or of a counterclaim therein", or "relating to any property that is the subject matter of the original action."

It expressly includes a claim that the co-party "is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant" — the indemnity or contribution cross-claim.

Cross-claims are permissive. Nothing in Rule 13 makes one compulsory.

Rule 13(h) allows new parties to be brought into a counterclaim or cross-claim under Rules 19 and 20 — see Delaware joinder and intervention.

Rule 13(i) preserves the ability to enter judgment on a counterclaim or cross-claim under Rule 54(b) where separate trials are ordered, "even if the claims of the opposing party have been dismissed or otherwise disposed of."

The ten days on a third-party complaint

Rule 14(a):

When defendant may bring in third party. At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff. The third-party plaintiff need not obtain leave to make the service if the third-party plaintiff files the third-party complaint not later than 10 days after serving the original answer. Otherwise, the third-party plaintiff must obtain leave on motion upon notice to all parties to the action.

Two points on scope.

The claim must be derivative. Rule 14 reaches someone liable to you for the plaintiff's claim — indemnity, contribution, and the like. It is not a route to add a party you think is liable directly to the plaintiff instead of you.

Ten days is measured from serving the answer, so the decision has to be made as the answer is drafted, not afterwards. Because the period is under eleven days, Rule 6(a) excludes intermediate weekends and holidays. See Delaware discovery deadlines for how Rule 6 counts.

What the third-party defendant can do

Once served, the third-party defendant has a wide set of moves:

And the plaintiff may assert claims directly against the third-party defendant, arising out of the same transaction or occurrence — at which point the third-party defendant answers under Rules 12 and 13 again.

That the third-party defendant may assert the third-party plaintiff's own defenses against the plaintiff is worth knowing. A defendant whose defenses are weakly pleaded may find them pressed by someone else.

Any party may move to strike the third-party claim and for its severance or separate trial, so bringing someone in is not the end of the question.

Rule 14(b) gives a plaintiff facing a counterclaim the same power a defendant has.

Where this connects

On Delaware's expedited commercial track, this is all substantially narrowed: Rule 126(b) permits only compulsory counterclaims as of right, and "Cross-claims, permissive counterclaims and third-party claims are not permitted absent agreement of all parties." See Delaware Summary Proceedings for Commercial Disputes.

In the CCLD, Rule 143(a)(4) provides that an amended pleading "has no effect on another party's counterclaims, crossclaims, or third-party claims, which are preserved and do not need to be re-filed." See the Delaware Complex Commercial Litigation Division.

For the answer that starts the ten days, see responding to a Delaware complaint and the Delaware motion to dismiss.

How Delaware compares

A short checklist

1. Identify every claim you have against the other side before you serve your pleading. Same transaction or occurrence means it is compulsory.
2. Decide about a third party while drafting the answer. Ten days after service is the free window.
3. Count those ten days as business days — Rule 6(a) excludes weekends under eleven days.
4. Check the claim is derivative before using Rule 14. Liability must run to you.
5. If you missed a counterclaim, move under Rule 13(f) — "when justice requires" needs no excuse.
6. A claim acquired later was never compulsory. Use Rule 13(e).
7. On the Summary Proceedings track, assume nothing beyond compulsory counterclaims without everyone's agreement.
8. Consider moving to strike or sever a third-party claim that will complicate your trial.

Where these rules live

• Del. Super. Ct. Civ. R. 13 — Counterclaim and cross-claim
• Del. Super. Ct. Civ. R. 14 — Third-party practice
• Del. Super. Ct. Civ. R. 19 — Joinder of persons needed for just adjudication
• Del. Super. Ct. Civ. R. 15 — Amended and supplemental pleadings

This page explains what the rules say. It isn't legal advice.