This form may be used to answer a civil complaint. Affirmative defenses may be asserted, along with a counterclaim. An affirmative defense is a type of defense in which the defendant seeks to avoid liability by introducing new evidence not addresses in the claims of the plaintiff's complaint. A counterclaim is made by the defendant to a civil proceeding, in a main action against the plaintiff or against the plaintiff and other people. This claim may be an attempt to offset or reduce the amount/implications of the plaintiff's original claim against the defendant, or it may be a different claim.
Counterclaims are either compulsory or permissive. If the counterclaim is permissive, it may be brought, but no rights are waived if it is not. If the counterclaim is mandatory, it must be brought in the current action or it is waived. Under the United States Federal Rules of Civil Procedure, a counterclaim is compulsory if it involves only the parties currently part of the suit, and is from the same transaction that the original suit is based on. Federal Rule of Civil Procedure 13(a).
Montana General Form of Civil Answer with Affirmative Defenses and Counterclaim
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Under the Federal Rules of Procedure, an answer to a counterclaim or cross-claim is due twenty-one (21) days after service of the pleading that asserts the counterclaim or cross-claim.
An answer to a counterclaim is a written response by a Plaintiff to a Defendant's counterclaim. The answer to counterclaim must also state defenses to each of the Defendant's counterclaims in short, plain statements.
Affirmative defense?Examples On [Date], after making the contract and the alleged breach, and before this action was commenced, defendant paid to the plaintiff the sum of [specify amount], which was accepted by the plaintiff in full satisfaction and discharge of the damages claimed in the petition.
You should respond to the counterclaim as though it were a Statement of Claim and you were drafting a Defence: respond to every paragraph ? you can do this paragraph by paragraph if necessary; deny any allegations of fact that you do not admit ? you will be deemed to admit facts that you forget to plead to; and.
REPLY TO COUNTERCLAIM. The reply must contain a denial of any or all of the material facts stated in the counterclaim that the plaintiff believes to be untrue and also a statement, in plain or direct manner, of any other facts constituting a defense to the counterclaim. Any matter not denied shall be deemed admitted.
In conclusion, the main difference between a counterclaim and an affirmative defense is that a counterclaim is a claim made by a defendant against the plaintiff. In contrast, an affirmative defense is a defense raised by the defendant in response to the plaintiff's claim.
Before action. (1) Petition. A person who desires to perpetuate testimony regarding any matter that may be cognizable in any district court of the state of Montana may file a verified petition in the district court in the county of the residence of any expected adverse party.
The defence to a counterclaim must deal with every allegation made by the defendant in the counterclaim by either admission, denial or making no admission. The counterclaim is drafted following the same rules as the defence, for details on drafting the defence - please see our previous Article in this series.