Section 6-1113 - [Effective 1/1/2025] Counterclaim and crossclaim(a) Stating a Counterclaim. A pleading may state as a counter claim any claim that the pleader has against an opposing party when the pleading is served.(b) Failing to State a Related Counterclaim. The failure to state as a counterclaim a claim that arises out of the transaction or occurrence that is the subject matter of the opposing party's claim precludes the pleader from recovering costs from that party in a subsequent action on the claim.(c) Relief Sought in a Counterclaim. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.(d) Counterclaim Against the State and Political Subdivisions. These rules do not expand the right to assert a counterclaim or to obtain a credit against the State of Nebraska, an officer or agency of the State, or a political subdivision of the State.(e) Counterclaim Maturing or Acquired After Pleading. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading.(f) Cross-Claim Against a Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The cross-claim may include a claim that the co-party is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.(g) Joining Additional Parties. Neb. Rev. Stat. §§ 25-323 and 25-705(4) govern the addition of a person as a party to a counterclaim or cross-claim.Amended November 13, 2024, effective 1/1/2025.COMMENTS TO § 6-1113
[1] Subpart (a) allows but does not require a party to assert any counterclaim that it has at the time it serves its responsive pleading. Subpart (b) encourages a party to assert as a counterclaim a claim that arises out of the same transaction or occurrence as the claim asserted against the party. The rule does so by precluding the party from recovering costs if it brings the claim in a subsequent action. Furthermore, depending on the subject matter of the claim, a party who brings a subsequent action may be precluded from litigating the claim by the doctrine of claim preclusion or may be barred from relitigating issues by the doctrine of issue preclusion. In short, a party should carefully evaluate the nature of a particular claim when deciding whether to assert it as a counterclaim or to make it the subject of a subsequent action.
[2] A counterclaim is stated in the party's responsive pleading. See § 6-1107(a)(3). The original version of § 6-1113(f) provided that a party could add a counterclaim by seeking leave of court to amend its pleading. The provision was deleted in 2024 because it was unnecessary. Section 6-1115(a) governs the amendment of all pleadings, including the amendment of a responsive pleading to add a counterclaim.