Counterclaims and Third Party Complaints

Counterclaims and Third Party Complaints

Last updated: February 2006

A "Counterclaim" is a lawsuit brought by the defendant against the plaintiff. By filing a counterclaim, the defendant seeks to change the direction of the lawsuit by claiming that it was the plaintiff -- not the defendant -- who did something wrong and that as a result it is the defendant who should get money damages. A defendant may file a Counterclaim against a plaintiff or against a co-defendant. It should be noted however, that a Counterclaim should arise out of the same set of facts as those in the complaint.

For example, where Pat sues Dave for damages arising out of a car crash between Pat and Dave, it would be proper for Dave to file a Counterclaim against Pat if he believed she did damage to his car. However, it would not be appropriate for Dave to file a Counterclaim against Pat alleging that in an unrelated transaction, he lent Pat a television which she never returned. In the latter example, Dave would have to file a separate case.

The fee for filing a Counterclaim is the same as the filing fee for a new case. The original Counterclaim must be filed with the Office of the Circuit Clerk. The party filing the Counterclaim must either present a copy of the Counterclaim to every party in the case on the return date of the Summons or send a copy of the Counterclaim to every party in the case by first class mail.

A "Third Party Complaint" is filed by a defendant when it is believed that someone else is liable in whole or part to the plaintiff.

For example, where Pat sues Dave for damages arising out of a car accident between Dave and Pat's cars, if Dave's friend Tom was driving Dave's car, Dave may wish to bring Tom into the lawsuit. In order to bring a third party into the lawsuit, the defendant must file a Third Party Complaint and Summons.

The defendant would follow the same procedure for filing the Complaint and have the third party defendant served as in a new case. The defendant must send a copy of the Third Party Complaint and Summons to the plaintiff, and have the third party defendant (Tom in the example above) served by the Sheriff, licensed private detective, or private process server. A defendant desiring to file a Third Party Complaint must file a Motion with the Court requesting leave to file the Third Party Complaint. Notice and a copy of the Motion must be mailed to the parties of record along with a copy of the Third Party Complaint.

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