For example, say someone with whom you were in a car accident decides to sue you. If you believe that the car accident was actually their fault, you must assert a counterclaim against them. You cannot sue them at a later date. The Federal Rules of Civil Procedure govern counterclaims in federal court. If the lawsuit is in state court, the state rules of civil procedure for your state probably govern the proceedings. However, most states have adopted rules that are very similar to the federal rules.
For instance, you can find instruction for the Southern District of New York Federal Court here and the form for the California state courts here. Though many states follow the Federal Rules of Civil Procedure, it’s not mandatory. Ensure you find out how much time you have to file in your state. Failing to file an answer or counterclaim on time may result in a default judgment hearing and potentially a default judgment against you. The court can grant your motion for “good cause,” which is left to the discretion of the judge who is handling your case. A lawyer is your best option for determining the validity of the counterclaims you wish to bring against the person suing you. [3] X Research source
The opposing side can use statements you make in both your answer and counterclaim against you in ways you might not anticipate. [5] X Research source An attorney will not only file the counterclaim correctly but ensure the proper wording of all claims as well.
Put the facts of the occurrence in your counterclaim. Be as specific as possible. Usually, you will number the allegations you have against the opposing party and include your facts that way. [6] X Research source
Make sure that you keep a copy of the counterclaim for you records.
You or your attorney can simply call the attorney for the opposing party and ask them if they will accept service for their client. If they say yes, there is no need to serve the opposing party.
Certified or first class mail. To serve by certified or first class mail, tell the clerk that you would like to serve this way, and pay a small fee, usually around $10. Remember, you cannot mail a copy of the counterclaim to the defendant yourself. Personal service. A personal service means that someone will hand a copy of the counterclaim to the opposing party in the suit. Usually, the sheriff’s department in the county where you file the counterclaim will personally serve the defendant for a small fee. When you file, tell the court that you want “sheriff service” and the clerk will facilitate the service. You can also hire a private “process server” from a legal services company, and that person will serve the opposing party.
