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First to Strike? First to File? Court Allows Counterclaim After Statute Runs (NJ)

October 27, 2017

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When a plaintiff files litigation on the last day of the statute of limitations, can a defendant file a counterclaim arising out of the same incident?
In <a href="http://blog.wcmlaw.com/wp-content/uploads/2017/10/Barley-v.-Barley.pdf">Veronica Barley v. Arnell Barley</a>, step sisters sought damages from one another for personal injuries after an altercation. The plaintiff sister, Veronica, alleged that her sister, Arnell, scratched her and tried to run her over with a car. She filed suit on the last day of the statute of limitations.
Along with Arnell's answer, she counterclaimed that Veronica was the aggressor who had actually injured her. The problem was that her counterclaim was filed after the statute had run. She argued that her claim should be considered as related back to the time of the filing of the complaint.
Although the trial judge was unpersuaded, the appellate division found that since the case was pending and the counterclaim was promptly filed, it related back to the original complaint filing date. The court noted that the plaintiff had delayed filing until the last day of the statute (implying this was tactically done) leaving her sister no time to counterclaim. Under these circumstances, the court felt that justice could only be served by allowing the defendant's counterclaim to be heard.
For more information, contact Denise Fontana Ricci at <a href="mailto:dricci@wcmlaw.com">dricci@wcmlaw.com</a>.

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