Rule 22 Counterclaims, Cross-claims, and Third-party Claims
Rule Text
COUNTERCLAIMS, CROSS-CLAIMS, AND THIRD-PARTY CLAIMS NOTICE: ORS 305.501(5)(a) provides that any party dissatisfied with the decision of a magistrate may appeal that decision by filing a complaint in the Regular Division within sixty days of the magistrate’s decision. ORS 305.501(5)(d) provides that such appeal “is the sole and exclusive remedy for review of a written decision of a magistrate.” Nothing in these rules may supersede or conflict with that which is provided for by statute. Accordingly, this court has held that the statutes governing this court do not contemplate “counterclaims,” and if a party wishes to appeal the decision of a magistrate in whole or in part, that claim must be made in a complaint. See Village at Main Street Phase II LLC v. Dept. of Rev., 22 OTR 52 (2015), vacated on other grounds, 360 Or 738, 387 P3d 374 (2016); Work v. Dept. of Rev., 22 OTR 396 (2017). Litigants considering filing such claims are encouraged to review these cases. This notice may be applicable to other sections of these rules where “counterclaims” or similar claims are discussed, such as TCR 6, 7, 13, 15, 18, 19, 21, 47, 53, 54, 67, and 69 (list is not exclusive).
A Counterclaims. (See NOTICE above regarding availability of counterclaims in this court.)
A(1) Each defendant may set forth as many counterclaims, both legal and equitable, as such defendant may have against a plaintiff.
A(2) A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.
B Cross-Claim Against Codefendant.
B(1) In any action where two or more parties are joined as defendants, any defendant may in such defendant’s answer allege a cross-claim against any other defendant. A cross-claim asserted against a codefendant must be one existing in favor of the defendant asserting the cross-claim and against another defendant, between whom a separate judgment might be had in the action and must be: (a) one arising out of the occurrence or transaction set forth in the complaint; or (b) related to any property that is the subject matter of the action brought by plaintiff.
B(2) A cross-claim may include a claim that the defendant against whom it is asserted is liable, or may be liable, to the defendant asserting the cross-claim for all or part of the claim asserted by the plaintiff.
B(3) An answer containing a cross-claim must be served upon the parties who have appeared.
C Third-Party Practice.
C(1) 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 as a matter of right not later than 90 days after service of the plaintiff’s summons and complaint on the defending party. Otherwise the third-party plaintiff must obtain agreement of parties who have appeared and leave of court. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, must assert any defenses to the third-party plaintiff’s claim as provided in TCR 21 and counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in sections A and B of this rule. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff’s claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff, and the third-party defendant thereupon must assert the third-party defendant’s defenses as provided in TCR 21 and the third-party defendant’s counterclaims and cross-claims as provided in this rule. Any party may move to strike the third-party claim or for its severance or separate trial. A third-party may proceed under this section against any person not a party to the action who is or may be liable to the third-party defendant for all or part of the claim made in the action against the third-party defendant.
C(2) A plaintiff against whom a counterclaim has been asserted may cause a third-party to be brought in under circumstances which would entitle a defendant to do so under subsection C(1) of this section.
D Joinder of Additional Parties.
D(1) Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of TCR 28 and TCR 29.
D(2) In any action against a party joined under this section of this rule, the party joined will be treated as a defendant for purposes of service of summons and time to answer under TCR 7.
E Separate Trial. Upon motion of any party or on the court’s own initiative, the court may order a separate trial of any counterclaim, cross-claim, or third-party claim so alleged if to do so would: (1) be more convenient; (2) avoid prejudice; or (3) be more economical and expedite the matter.