Defendants routinely file counterclaims in response to the claims asserted against them.  Oftentimes, defendants include their counterclaim(s) with their initial answer.  Under these circumstances, if a plaintiff thereafter files an amended pleading, the defendant needs to be aware of Missouri’s pleading requirements.

Under Missouri law, if a defendant files a counterclaim as part of its initial answer, the defendant must reassert the counterclaim in any subsequent pleading, including the defendant’s answer to the plaintiff’s amended petition.  KC Excavating & Grading, Inc. v. Crane Const. Co., 141 S.W.3d 401, 407 (Mo. App. W.D. 2004).

In KC Excavating, the defendant filed a counterclaim as part of its initial pleading.  The plaintiff thereafter filed a first amended petition.  In response, the defendant timely filed an answer to the first amended petition.  However, the defendant did not refer to its original counterclaim, and the responsive pleading did not include a counterclaim.  The trial court thereafter refused to consider the counterclaim because it had not been reasserted in the defendant’s responsive pleading to the plaintiff’s amended petition.

On appeal, the defendant argued that it did not need to re-file the counterclaim that was filed in response to the plaintiff’s original petition because the claims asserted in the plaintiff’s amended petition arose out of the same conduct, transaction or occurrence and related back to the original petition.  The Missouri Court of Appeals noted that if the defendant’s argument was correct, it would necessarily mean that the defendant was not obligated to file its second responsive pleading.  However, since the defendant did file a second responsive pleading, the relation-back doctrine was not applicable.

The defendant further argued that the court “should make nothing of its omission because a counterclaim is an independent complaint and can be filed separately from the answer in a distinct document.”  In other words, the defendant argued that it should not have been deemed to have abandoned its counterclaim only because it did not re-file that portion of its response after the plaintiff filed its amended petition.  The court similarly dismissed this argument, noting that even if the defendant was correct in its premise, the defendant still “filed one pleading that it subsequently re-filed with the conspicuous exclusion of its counterclaim.  The only fair inference is that [the defendant] intended to abandon the prior pleading and counterclaim.”

The Missouri Court of Appeals in KC Excavating ultimately held that the defendant’s failure to reassert the counterclaim in its answer to the plaintiff’s first amended petition resulted in the defendant’s abandonment of the counterclaim.