Concept
Answer to a Counterclaim or Crossclaim
Time to serve a responsive pleading
Answer to a Counterclaim or Crossclaim
A party served with a counterclaim or crossclaim has 21 days to answer it. Rule 12(a)(1)(B) sets the deadline at 21 days after the party is served with the pleading that states the counterclaim or crossclaim.1 That is the same period that governs an answer to a complaint, which runs from service of the summons and complaint.2
A counterclaim is a claim a defendant asserts against the plaintiff who sued. A crossclaim is a claim one party asserts against a coparty, such as one codefendant against another. Each is a claim rather than a defense, so the party it targets stands where the original defendant stood when the complaint arrived and must admit or deny the new allegations.
The clock starts with service of the pleading that contains the claim, which is a different event from the one that started the defendant's clock at the outset of the case. A counterclaim ordinarily sits inside the defendant's answer, so the plaintiff's 21 days begin when that answer is served on the plaintiff. By then the plaintiff's own complaint has been pending for weeks, but its filing and service started the defendant's period and started nothing for the plaintiff. The measure is sensible because no party can fairly be required to respond to a claim that has not yet been put before it. A crossclaim works the same way. The targeted codefendant's time runs from service on that codefendant of the pleading stating the crossclaim, and the earlier service of the plaintiff's complaint on that codefendant plays no part.
What does a plaintiff owe when the defendant answers and asserts no claim at all? Rule 12(a)(1)(B) is triggered only by a pleading that states a counterclaim or crossclaim, so an answer that merely denies allegations and pleads affirmative defenses gives the plaintiff nothing to answer under it.3 A reply to such an answer comes into play only when the court orders one. The 21 days then run from service of the order, unless the order specifies a different time.4 The line to hold is between a pleading that asserts a claim, which must be answered within 21 days of service, and a pleading that asserts only defenses, which calls for nothing from the other side unless the court directs otherwise. A stem that says a defendant raised several defenses has not described a counterclaim, and a plaintiff who counts 21 days from that answer is counting a deadline that does not exist.
Tolson v. Hodge shows what a missed counterclaim deadline can cost. The plaintiff's response to a counterclaim arising from the death of the defendant's decedent was late. He moved for leave to file a reply to the counterclaim, and the district court denied the motion to file out of time, noting that he sought relief under Rule 55(c) together with Rule 60(b). A final judgment by default was then entered against him, dismissing his cause of action as an adjudication on the merits.5 The opinion calls the proposed pleading both a reply and an answer. Under Rule 12(a)(1)(B), the pleading that responds to a counterclaim is an answer.
The reviewing court described the neglect, if any, as not great. It found nothing in the record to suggest that the defendant was prejudiced, other than giving up the default judgment she thought she was entitled to. It also noted that the plaintiff's complaint had already alleged the defendant's decedent's negligence as the sole proximate cause of the accident, which, if established at trial, would be a complete defense to the counterclaim. The answer he sought to file would have repeated that defense more formally and added the affirmative defense of release.6
Those observations go to whether a late party can be relieved of a default, a question taken up in the closing section of this chapter. For the deadline itself, the lesson is simpler. The 21 days run from service of the pleading that states the claim, and missing them can end in a default judgment that dismisses the plaintiff's own case. Whether a court excuses the lapse depends on a weighing of the kind the court performed in that case, so the safe course is to serve the answer on time.