Group III: Pleadings and Motions · Last amended March 1, 2011 · Last verified July 15, 2026
In one sentenceRule 13 tells a defendant which counterclaims must be raised in the same lawsuit and which are optional, and sets out the related rules for crossclaims between co-parties, counterclaims against the state, and claims that mature after the original pleading is filed.
(1)In general. A pleading must state as a counterclaim any claim that - at the time of its service - the pleader has against any opposing party, if the claim:
(A)arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and
(B)does not require adding another party over whom the court cannot acquire jurisdiction.
(2)Exceptions. The pleader need not state the claim if:
(A)when the action was commenced, the claim was the subject of another pending action; or
(B)the opposing party sued on its claim by attachment or other process by which the court did not acquire personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.
(b)Permissive counterclaim. A pleading may state as a counterclaim any claim against an opposing party.
(1)In general. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.
(2)Contract action. In a contract action for the recovery of money only, when the defendant's answer does not deny the plaintiff's claim but asserts a counterclaim for an amount less than the plaintiff's claim, the plaintiff may have default judgment for the money claimed that exceeds the counterclaim amount.
(d)Counterclaim against the state. These rules do not expand the right to assert a counterclaim - or to claim a credit - against the state of North Dakota or a state officer or agency.
(e)Counterclaim maturing or acquired after pleading. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading.
(g)Crossclaim against a coparty. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.
(h)Joining additional parties. Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.
(i)Separate trials; Separate judgments. If the court orders separate trials under Rule 42(b), it may enter judgment on a counterclaim or crossclaim under Rule 54(b) when it has jurisdiction to do so, even if the opposing party's claims have been dismissed or otherwise resolved.
Explanatory Note
Rule 13 was amended, effective March 1, 1990; March 1, 2011. Rule 13 is based on Fed.R.Civ.P. 13. This rule prescribes procedure to be followed in the use of counterclaims and crossclaims. Rule 13 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. Subdivision (f), which set out standards for amending pleadings to add a counterclaim, was deleted, effective March 1, 2011, to track the 2009 federal amendment. The subdivision was redundant of Rule 15, which sets out standards for amending pleadings in general. Subdivision (c)(2) was derived from N.D.R.C. 1943 § 28-0907. In 1971, subdivision (a)(2) was added and subdivision (h) was amended to include a reference to Rules 19 and 20. Rule 13 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Plain-English Summary
Rule 13(a) makes some counterclaims mandatory. A party must state as a counterclaim any claim it has against an opposing party at the time it serves its pleading, if that claim arises out of the same transaction or occurrence as the opposing party's claim and doesn't require adding someone the court can't get jurisdiction over. Two exceptions excuse the requirement: the claim was already the subject of another pending action when this one began, or the opposing party sued the pleader through attachment or similar process that never gave the court personal jurisdiction over the pleader, and the pleader raises no counterclaim at all.
Rule 13(b) is the flip side — a party may raise any counterclaim against an opposing party, whether or not it shares a transaction with the original claim. A counterclaim doesn't have to offset or match the opposing claim; Rule 13(c) allows it to exceed that claim in amount or differ in kind entirely, though it also gives a shortcut in a pure money-contract action: if the answer doesn't deny the plaintiff's claim but raises a counterclaim for a smaller amount, the plaintiff can get default judgment for the difference. Rule 13(d) makes clear this rule doesn't expand a party's right to counterclaim or claim a credit against the State of North Dakota or a state officer or agency beyond what already exists, and Rule 13(e) lets the court permit a supplemental pleading when a counterclaim matures or is acquired only after the original pleading was served.
Rule 13(g) extends the same logic to co-parties: a party may crossclaim against a coparty when the claim arises from the same transaction or occurrence as the original action or an existing counterclaim, or when it relates to property already at issue — and the crossclaim can include a claim that the coparty is liable to the crossclaimant for all or part of a claim asserted against the crossclaimant. Rule 13(h) sends questions about adding new parties to Rules 19 and 20, and Rule 13(i) confirms that when the court orders separate trials under Rule 42(b), it can still enter judgment on a counterclaim or crossclaim under Rule 54(b), when it has jurisdiction to do so, even if the opposing party's own claims have been dismissed or otherwise resolved. Former subdivision (f), which once set separate standards for amending a pleading to add a late counterclaim, was deleted in 2011 because Rule 15 already covers that ground.
Frequently Asked Questions
What makes a counterclaim compulsory rather than permissive in North Dakota?
Under Rule 13(a), a counterclaim is compulsory if it arises out of the same transaction or occurrence as the opposing party's claim and doesn't require adding a party the court can't reach. A party who has such a claim at the time it serves its pleading must raise it there or lose it, subject to the narrow exceptions in Rule 13(a)(2).
Can I raise a counterclaim that has nothing to do with the plaintiff's claim?
Yes. Rule 13(b) allows a permissive counterclaim against an opposing party regardless of whether it shares any connection to the claim being answered.
Can my counterclaim seek more money than the plaintiff is asking for?
Yes. Rule 13(c) states that a counterclaim need not diminish or defeat the recovery the opposing party seeks, and it may request relief exceeding that amount or differing in kind.
What if my counterclaim didn't exist yet when I filed my answer?
Rule 13(e) lets the court permit a supplemental pleading asserting a counterclaim that matured or was acquired after the earlier pleading was served, so a later-arising claim isn't automatically lost.
Can I bring a claim against a co-defendant instead of the plaintiff?
Yes. Rule 13(g) allows a crossclaim against a coparty when it arises from the same transaction or occurrence as the original action or a counterclaim, or relates to property already at issue in the case.
Source & verification. Rule text and the Explanatory Note are
reproduced verbatim from the North Dakota Rules of Civil Procedure, adopted by the
Supreme Court of North Dakota. Last verified July 15, 2026.
· Official source
Also known as:nd compulsory counterclaim rulepermissive counterclaim north dakotacrossclaim against coparty ndcounterclaim against the state north dakotasame transaction or occurrence nd rule 13