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.