Bench Bar Committee Mandatory Counterclaim Proposal
The State Bar Bench Bar Committee is tasked with making and
evaluating proposals to improve the administration of justice and submit
recommendations to the Board of Governors on the same. Based on
responses given in a 1997
survey of attorneys and judges, the Bench Bar Committee proposes
amending the Wisconsin Rules of Civil Procedure to mandate counterclaims
in Wisconsin courts. After reviewing comments and working with various
State Bar sections to address concerns about the proposal, the Bench Bar
Committee may request a legislative position from the Board of Governors
to adopt the proposal. Please send comments by Jan. 20, 1999, to: Ms. Pat Morgan, State Bar of
Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.
Proposed Section
802.07 Counterclaim and Cross-Claim.
(1)(a) MANDATORY COUNTERCLAIM. A pleading shall state as a
counterclaim any claim which at the time of serving the pleading the
pleader has against any opposing party, if it arises out of the
transaction or occurrence that is the subject matter of the opposing
party's claim and does not require for its adjudication the presence of
third parties over whom the court cannot acquire jurisdiction. The
pleader need not state the claim if (1) at the time the action was
commenced that the claim was the subject of another pending action, or
(2) the opposing party brought suit upon the claim by attachment or
other process by which the court did not acquire jurisdiction to render
a personal judgment on that claim, and the pleader is not stating any
counterclaim under this section.
(b) PERMISSIVE COUNTERCLAIM. A pleading may state as a counterclaim
any claim against an opposing party not arising out of the transaction
or occurrence that is the subject matter of the opposing party's
claim.
[Repeal remainder of (1) except as provided in (c)]
(c) SCOPE OF COUNTERCLAIM. A counterclaim may or may not diminish or
defeat the recovery sought by the opposing party. Except as provided by
s.
802.02(1m), the counterclaim may claim relief exceeding in amount or
different in kind from that sought in the pleading of the opposing
party.
Wisconsin Lawyer
