Not all crossclaims are treated equally in court. Learn the difference between compulsory and permissive crossclaims and why it matters in your case.
In multi-party litigation, a crossclaim is a claim brought by one defendant against another defendant or third-party in the same lawsuit. However, crossclaims can be classified into two categories: compulsory and permissive. The distinction between these two types of crossclaims is crucial for determining whether the claim must be filed in the current lawsuit or if it can be brought in a separate action.
This article explains what makes a crossclaim compulsory or permissive and the practical implications for filing and litigating crossclaims.
✅ Definition of compulsory crossclaim:
A compulsory crossclaim is a claim that must be filed as part of the current lawsuit. Under the Federal Rules of Civil Procedure Rule 13(a) and similar rules in other jurisdictions, if the crossclaim arises from the same transaction or occurrence as the plaintiff’s original claim, it is considered compulsory. If the defendant fails to file a compulsory crossclaim, they may lose the right to assert the claim in the future.
Example:
“If Defendant A is sued for breach of contract by Plaintiff and Defendant B believes they are responsible for some of the damages due to their role in the contract, Defendant B must file a crossclaim against Defendant A as part of the current case. If they don’t, they may be barred from filing the claim later in another case.”
🎯 Tip: Always assess whether your crossclaim arises from the same facts or events as the plaintiff’s original claim, as this determines whether the claim is compulsory.
✅ Key criteria for a compulsory crossclaim:
To qualify as a compulsory crossclaim, the following conditions must be met:
Same Transaction or Occurrence: The crossclaim must arise from the same set of facts or circumstances as the original claim. For example, in a breach of contract case, a crossclaim for indemnity or contribution is likely compulsory.
Not Raised in a Separate Action: If the crossclaim is not filed in the current case, the party may be precluded from bringing the claim in the future. This is especially important in multi-defendant cases where failing to assert a compulsory crossclaim could result in a loss of defense.
Example:
“If the plaintiff sues Defendant A for negligence, and Defendant A believes that Defendant B’s actions contributed to the plaintiff's injuries, Defendant A must file a compulsory crossclaim against Defendant B as part of the same lawsuit.”
🎯 Tip: Be proactive in evaluating whether any claim against co-defendants falls within the same transaction or occurrence to ensure that the claim is filed as compulsory.
✅ Definition of permissive crossclaim:
A permissive crossclaim is a claim that a defendant may choose to file but is not required to file as part of the ongoing lawsuit. Unlike compulsory crossclaims, a permissive crossclaim can arise from a different transaction or occurrence. Even though it may be related to the original claim, the defendant has the option to file the claim separately or in the same lawsuit.
Example:
“If Defendant A is sued for breach of contract, and they wish to assert a crossclaim against Defendant C for a completely separate issue (e.g., a failure to pay a debt), they can file the crossclaim, but they are not required to do so as part of the current case.”
🎯 Tip: A permissive crossclaim is an option, not a requirement. Consider filing a permissive crossclaim when it makes strategic sense but be aware that you can file it separately later.
✅ Key factors that make a crossclaim permissive:
A crossclaim is considered permissive if:
Arises from a Different Transaction or Occurrence: The crossclaim does not arise from the same facts or events as the plaintiff’s original claim or other parties’ claims.
Not Essential for the Case Resolution: A permissive crossclaim is not essential to resolving the primary issues of the lawsuit. It is usually a separate issue that the defendant wants to assert but can choose to litigate separately if needed.
Example:
“If a defendant in a property dispute files a crossclaim against a co-defendant for breach of a different contract, it is likely to be a permissive crossclaim since it arises from different events.”
🎯 Tip: While permissive crossclaims give more flexibility, they can still be important strategically for addressing related issues without delaying the primary case.
✅ What happens if a compulsory crossclaim is not filed?
If a defendant fails to file a compulsory crossclaim, they may lose the ability to assert that claim in a future lawsuit. Courts typically rule that once a defendant has the opportunity to file a crossclaim and fails to do so, they forfeit the right to bring that claim later. This can result in a significant strategic disadvantage for the defendant.
Example:
“If Defendant A fails to file a compulsory crossclaim for indemnity against Defendant B in a breach of contract case, Defendant A may be barred from asserting the claim in a separate lawsuit in the future.”
🎯 Tip: Always file crossclaims that arise from the same transaction or occurrence to avoid losing the right to pursue the claim later.
✅ When to consider filing a permissive crossclaim:
A permissive crossclaim can be a valuable tool for defendants who want to address related issues that are not part of the primary lawsuit. Filing a permissive crossclaim can consolidate related legal matters and provide an opportunity for resolution within the same legal proceeding, saving time and resources.
Example:
“If a defendant in a construction defect case files a permissive crossclaim against a subcontractor for breach of warranty, it may be strategic to resolve both the defect claim and the warranty claim together, rather than in separate proceedings.”
🎯 Tip: Consider the strategic benefits of filing a permissive crossclaim to consolidate claims that are related but not essential to the primary dispute.
✅ How to decide whether a crossclaim is compulsory or permissive:
Assess the connection to the original claim: If the crossclaim arises from the same set of facts as the plaintiff's claim, it is likely compulsory. If it involves separate events, it may be permissive.
Review the court rules: Court rules will specify when a crossclaim must be filed. Be aware of any deadlines for filing compulsory crossclaims.
Strategic consideration: Consider whether filing the crossclaim strengthens your defense or helps resolve related issues. If so, even a permissive crossclaim may be worth filing.
Example:
“If you are sued for negligence, and your co-defendant is responsible for part of the damages, file a compulsory crossclaim for contribution. If you want to raise another issue unrelated to the main lawsuit, such as breach of contract, file a permissive crossclaim.”
🎯 Tip: Make a strategic decision based on whether the crossclaim is essential to resolving the dispute and whether it should be pursued in the same action or separately.
Scenario:
A defendant in a tort case is sued for negligence, and they wish to file a crossclaim against a co-defendant. The co-defendant’s actions may have contributed to the plaintiff's injury.
Step 1: Determine if the crossclaim arises from the same transaction or occurrence as the original claim. If yes, the crossclaim is compulsory.
Step 2: File the compulsory crossclaim as part of the defendant’s answer to the complaint.
Step 3: If the crossclaim involves a separate issue, such as breach of a different contract, consider filing it as a permissive crossclaim.
🎯 Tip: Ensure that the crossclaim is timely filed, whether compulsory or permissive, to avoid waiving any rights.
Understanding the difference between compulsory and permissive crossclaims is critical for effective case management and litigation strategy. While compulsory crossclaims must be filed in the current lawsuit, permissive crossclaims offer more flexibility and can be filed later. By carefully assessing the connection between the claims and evaluating the strategic benefits, attorneys can make informed decisions on when and how to file crossclaims.
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