State Court Counterclaim & Cross-Claim

DEFENDANT'S COUNTERCLAIM AND CROSS-CLAIM — DELAWARE SUPERIOR COURT

TABLE OF CONTENTS

1. Caption
2. Introduction & Governing Rule
3. Parties
4. Compulsory vs. Permissive Classification
5. Jurisdiction & Venue
6. General Factual Allegations
7. First Counterclaim — Breach of Contract (Against Plaintiff)
8. Second Counterclaim — Unjust Enrichment (Against Plaintiff)
9. Cross-Claim — Indemnity & Contribution (Against Co-Defendant)
10. Prayer for Relief
11. Jury Demand
12. Signature Block
13. Verification (If Required)
14. Certificate of Service
15. Delaware Practice Notes
16. Sources & References

1. CAPTION

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR [NEW CASTLE / KENT / SUSSEX] COUNTY

C.A. No.: [____________]

DEFENDANT [DEFENDANT NAME]'S COUNTERCLAIM AGAINST PLAINTIFF AND CROSS-CLAIM AGAINST CO-DEFENDANT [CO-DEFENDANT NAME]

2. INTRODUCTION & GOVERNING RULE

Defendant [DEFENDANT NAME] ("Defendant"), in addition to its Answer, asserts the following counterclaims against Plaintiff and cross-claim against co-defendant [CO-DEFENDANT NAME] pursuant to Delaware Superior Court Civil Rule 13, and alleges as follows:

2.1. Compulsory counterclaim (Rule 13(a)). "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 of whom the Court cannot acquire jurisdiction."

2.2. Permissive counterclaim (Rule 13(b)). "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."

2.3. Cross-claim against a co-party (Rule 13(g)). "A pleading may state as a cross-claim any claim by one party against a coparty arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein, or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant."

2.4. This pleading is filed with Defendant's Answer within the time allowed by Del. Super. Ct. Civ. R. 12(a).

3. PARTIES

3.1. Counterclaim-Plaintiff/Cross-Claimant [DEFENDANT NAME] is, and at all relevant times was, a [corporation / limited liability company / individual] [organized under the laws of [State] / residing in [County], Delaware], and is a defendant in this action.

3.2. Counterclaim-Defendant [PLAINTIFF NAME] is the Plaintiff in this action and is, and at all relevant times was, a [corporation / limited liability company / individual] [organized under the laws of [State] / residing in [County], Delaware].

3.3. Cross-Claim Defendant [CO-DEFENDANT NAME] is a co-defendant in this action and is, and at all relevant times was, a [corporation / limited liability company / individual] [organized under the laws of [State] / residing in [County], Delaware].

3.4. Defendant incorporates by reference the admissions, denials, and affirmative defenses set forth in its Answer as if fully restated herein.

4. COMPULSORY VS. PERMISSIVE CLASSIFICATION

4.1. Compulsory counterclaim (Rule 13(a)). The First and Second Counterclaims arise out of the transaction or occurrence that is the subject matter of Plaintiff's claims — namely, [describe the contract / event / dealings] — and are therefore compulsory and asserted here. A compulsory counterclaim not pleaded is barred from later assertion.

4.2. Permissive counterclaim (Rule 13(b)). To the extent any counterclaim does not arise out of the same transaction or occurrence, it is asserted permissively under Rule 13(b). [Specify any permissive counterclaim.]

4.3. Cross-claim (Rule 13(g)). The Cross-Claim against co-defendant [CO-DEFENDANT NAME] arises out of the transaction or occurrence that is the subject matter of the original action and asserts that the co-defendant is or may be liable to Defendant for all or part of Plaintiff's claim against Defendant.

4.4. Omitted counterclaim (Rule 13(f)). Defendant reserves the right to set up by amendment, with leave of Court, any counterclaim omitted through oversight, inadvertence, or excusable neglect, or where justice requires.

5. JURISDICTION & VENUE

5.1. This Court has subject-matter jurisdiction over the counterclaims and cross-claim, which are ancillary to the pending action over which this Court has already assumed jurisdiction.

5.2. This Court has personal jurisdiction over Plaintiff (who invoked the Court's jurisdiction by filing the Complaint) and over co-defendant [CO-DEFENDANT NAME] (who is a party to this action).

5.3. Venue is proper in this County because the original action is pending here and/or one or more parties resides or transacts business here and/or the events giving rise to these claims occurred here.

6. GENERAL FACTUAL ALLEGATIONS

6.1. On or about [__/__/____], Defendant and Plaintiff entered into [describe the agreement, transaction, or relationship] (the "Agreement"). A true and correct copy is attached as Exhibit A and incorporated by reference.

6.2. Under the Agreement, Plaintiff agreed to [describe obligations], and Defendant agreed to [describe obligations].

6.3. Defendant performed all obligations required of it under the Agreement, except those it was excused or prevented from performing.

6.4. Beginning on or about [__/__/____], Plaintiff failed and refused to [describe breach / wrongful conduct].

6.5. [Insert additional numbered factual allegations as needed — dates, communications, amounts, demands, and the conduct of co-defendant [CO-DEFENDANT NAME].]

6.6. As a direct and proximate result, Defendant has been damaged in an amount to be proven at trial but believed to exceed $[____________].

7. FIRST COUNTERCLAIM — BREACH OF CONTRACT

(By Defendant Against Plaintiff)

7.1. Defendant incorporates Paragraphs 6.1 through 6.6 as though fully set forth.

7.2. The Agreement is a valid and enforceable contract supported by consideration.

7.3. Defendant performed, or was excused or prevented from performing, all obligations required under the Agreement.

7.4. Plaintiff materially breached the Agreement by [describe the breach].

7.5. As a direct and proximate result of Plaintiff's breach, Defendant has suffered damages in an amount to be proven at trial, together with pre- and post-judgment interest.

8. SECOND COUNTERCLAIM — UNJUST ENRICHMENT

(By Defendant Against Plaintiff)

8.1. Defendant incorporates Paragraphs 6.1 through 6.6 as though fully set forth.

8.2. Defendant conferred a benefit upon Plaintiff in the form of [money / goods / services / labor] of the reasonable value of $[____________].

8.3. Plaintiff was enriched and Defendant was correspondingly impoverished; there is a relationship between the enrichment and impoverishment; and there is no justification for the enrichment and no adequate remedy at law for the impoverishment.

8.4. It would be inequitable for Plaintiff to retain the benefit without payment of its reasonable value.

8.5. Defendant is entitled to restitution in an amount to be proven at trial, plus interest.

9. CROSS-CLAIM — INDEMNITY & CONTRIBUTION

(By Defendant Against Co-Defendant [CO-DEFENDANT NAME], per Del. Super. Ct. Civ. R. 13(g))

9.1. Defendant incorporates Paragraphs 6.1 through 6.6 as though fully set forth.

9.2. This Cross-Claim is authorized by Del. Super. Ct. Civ. R. 13(g) because it arises out of the transaction or occurrence that is the subject matter of the original action and asserts that co-defendant [CO-DEFENDANT NAME] is or may be liable to Defendant for all or part of Plaintiff's claim against Defendant.

9.3. Plaintiff's Complaint alleges that Defendant is liable to Plaintiff for [describe the underlying claim]. Defendant denies all liability to Plaintiff.

9.4. If Defendant is found liable to Plaintiff, such liability arises in whole or in part from the acts, omissions, or fault of co-defendant [CO-DEFENDANT NAME], and not from any fault of Defendant.

9.5. Defendant is therefore entitled to indemnification and/or contribution from [CO-DEFENDANT NAME] for all or a proportionate share of any sums Defendant may be compelled to pay to Plaintiff.

9.6. To the extent a written agreement obligates [CO-DEFENDANT NAME] to defend and indemnify Defendant, Defendant additionally seeks express contractual indemnity and a defense.

10. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that the Court enter judgment as follows:

On the First and Second Counterclaims (against Plaintiff):
a. For damages according to proof, but not less than $[____________];
b. For restitution of amounts by which Plaintiff was unjustly enriched;
c. For pre-judgment and post-judgment interest as allowed by law;

On the Cross-Claim (against Co-Defendant [CO-DEFENDANT NAME]):
d. For indemnification and/or contribution for all or a proportionate share of any judgment against Defendant in favor of Plaintiff;
e. For express contractual indemnity and a defense, where applicable;
f. For attorneys' fees and costs of defense as permitted by contract or law;

On all claims:
g. For costs of suit; and
h. For such other and further relief as the Court deems just and proper.

11. JURY DEMAND

☐ Defendant demands a trial by jury on all issues so triable.
☐ Defendant does not demand a jury and submits the matter to the Court.

12. SIGNATURE BLOCK

Respectfully submitted,

[____________________________]

[ATTORNEY NAME] (Bar ID No. [________])

[LAW FIRM NAME]

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [____________]

Email: [____________]

Attorney for Defendant [DEFENDANT NAME]

Dated: [__/__/____]

13. VERIFICATION (IF REQUIRED)

I, [NAME], being duly sworn, state that I am the [Title/Position] of Defendant [DEFENDANT NAME]; that I have read the foregoing Counterclaim and Cross-Claim; and that the facts stated therein are true and correct to the best of my knowledge, information, and belief.

[____________________________]

[NAME]

Sworn to and subscribed before me this [____] day of [_______________], 20[____].

[____________________________]

Notary Public — My commission expires: [_______________]

14. CERTIFICATE OF SERVICE

I hereby certify that on this [____] day of [Month], 20[____], I caused a true and correct copy of the foregoing COUNTERCLAIM AND CROSS-CLAIM to be served upon all counsel and parties of record in accordance with Del. Super. Ct. Civ. R. 5(b) via the method indicated below:

☐ File & ServeXpress / the Court's electronic filing and service system
☐ U.S. Mail, first-class postage prepaid
☐ Hand delivery
☐ Email (by agreement)

addressed to:

[NAME, FIRM, ADDRESS, AND/OR E-SERVICE EMAIL OF EACH PARTY/COUNSEL SERVED]

[____________________________]

[ATTORNEY NAME] (Bar ID No. [________])

15. DELAWARE PRACTICE NOTES

• Rule number. Counterclaims and cross-claims in the Superior Court are governed by Del. Super. Ct. Civ. R. 13, which tracks Fed. R. Civ. P. 13: (a) compulsory counterclaims, (b) permissive counterclaims, (g) cross-claims against a co-party (including "liability over" for all or part of the claim), and (h) joinder of additional parties under Rules 19 and 20.
• Compulsory test. A counterclaim is compulsory if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require parties the Court cannot reach. A compulsory counterclaim not pleaded is barred.
• Deadline. A defendant must serve its answer (with any counterclaim) within 20 days after service of the summons and complaint under Del. Super. Ct. Civ. R. 12(a); if the defendant appears before service is made, within 20 days after appearance. The plaintiff serves a reply to a counterclaim within 20 days, and a party served with a cross-claim answers within 20 days after service.
• Cross-claim scope. A cross-claim under Rule 13(g) must relate to the same transaction/occurrence or property and may include a claim that the co-party is or may be liable to the cross-claimant for all or part of the claim asserted against the cross-claimant.
• Adding new parties. Persons not already parties may be joined to a counterclaim or cross-claim under Rule 13(h), 19, and 20, and served with process under Rule 4.
• Court / forum. The Superior Court is Delaware's court of general civil (law) jurisdiction and the proper forum for legal claims and jury trials. Purely equitable claims (specific performance, injunctions, accountings, fiduciary-duty and most corporate/LLC disputes) belong in the Court of Chancery; that court's parallel counterclaim/cross-claim rule is Ct. Ch. R. 13. Confirm the correct forum before filing an equitable counterclaim.
• Jury demand. A jury demand must comply with Del. Super. Ct. Civ. R. 38 (served not later than 10 days after the last pleading directed to the issue), or the right is waived.

16. SOURCES & REFERENCES

• Del. Super. Ct. Civ. R. 13 (Counterclaim and Cross-Claim) — https://courts.delaware.gov/rules/
• Del. Super. Ct. Civ. R. 12(a) (time to serve responsive pleading; 20 days)
• Del. Super. Ct. Civ. R. 8 (general rules of pleading)
• Del. Super. Ct. Civ. R. 5(b) (service of pleadings and papers)
• Del. Super. Ct. Civ. R. 4 (process); Rules 19 & 20 (joinder)
• Del. Super. Ct. Civ. R. 38 (jury trial demand)
• Ct. Ch. R. 13 (counterclaim/cross-claim in the Court of Chancery — for equitable actions)
• 10 Del. C. §§ 6301–6308 (Uniform Contribution Among Tort-feasors Law)
• Rules of the Superior Court of the State of Delaware — https://courts.delaware.gov/superior/

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in Delaware must review and customize this document before filing. Court rules and citations change; verify all authorities before use.