Comparing Federal and Delaware Rules of Civil Procedure; Rules 13 and 56

Comparing Federal and Delaware Rules of Civil Procedure; Rules 13 and 56

Rule 13 of the Federal Rules of Civil Procedure deals with Counterclaim and Crossclaims. The rule discusses compulsory counterclaims, which is any claim that arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not involve another party whom the court cannot acquire jurisdiction, and permissive counterclaims, which is any counterclaim against an opposing party that is not compulsory. The relief sought in a counterclaim may exceed in amount or differ from the relief sought by the opposing party. The ruled does not expand the right to assert a counterclaim against the United States or its officers or agencies. There can be a crossclaim against a co-party if the claim arises out of the transaction or occurrence that is the subject of the original action.

Rule 13 of The Delaware Civil Procedures also deals with Counterclaim and Crossclaims. The Delaware rules for Counterclaim and Crossclaim are similar in many respects. There are some exceptions. The State of Delaware allows for omitted counterclaim, that is the pleader failed to set up a counterclaim through oversight, inadvertence, or excusable neglect. I could not find a provision in the federal rules for “omitted counterclaim.” Though the wording may be different between the two documents, the rules are almost identical in scope. Rule 13 for federal and state were so similar I decided to look at rule 56 to see if it too was similar in scope as well.

Rule 56 in the Federal Rules of Civil Procedure deals with summary judgment as does Rule 56 in the Delaware Rules of Civil Procedure, but there was one significant difference in the Federal and State rules regarding summary judgment. The Federal Rule 56 states a party may file a motion “anytime until 30 days after the close of all discovery”. Delaware’s Rule 56 states “A party seeking to recover upon a claim, counterclaim, or crossclaim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgement and any time prior to the marking of the case for trial, move, with or without supporting affidavits.” The Delaware code also states that: “The motions shall be served at least ten days before the time fixed for the hearing.” Besides the determination of filing time, there does not appear to be any other significant differences between the federal and state rules.