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Time does not heal all wounds: an analysis of the defendant disarming decision in Murray v. Mansheim.

One day before the statute of limitations expired on a personal injury claim arising out of a motor vehicle accident, Chris Murray filed suit. In response, Travis Mansheim brought a compulsory counterclaim in conjunction with his answer. The trial court granted summary judgment in favor of Murray on the grounds that Mansheim's compulsory counterclaim was barred by the three-year statute of limitations. On appeal, the South Dakota Supreme Court affirmed the lower court, holding that a compulsory counterclaim, viable at the time of the original complaint, was barred by the applicable statute of limitations and did not benefit from the relation-back doctrine. The court's departure from traditional plain-meaning statutory interpretation was improper because it prevented the defendant from defending himself and condoned the plaintiff's tactical maneuvers.

I. INTRODUCTION

Compulsory counterclaims have long served as the mechanism that prevents duplicitous litigation by adjudicating all claims arising out of the same transaction or occurrence. (1) Since the compulsory counterclaim's creation, courts have been divided as to how or if they are subject to a statute of limitations. (2) There is no bright-line rule, and the applicability of statute of limitations to compulsory counterclaims has been individually determined across state and federal courts. (3)

Recently, the South Dakota Supreme Court had the opportunity to determine its position on this contested issue in Murray v. Mansheim. (4) In Murray, a personal injury complaint was filed a day before the statute of limitations was set to expire. (5) Both parties had been severely injured in a motor vehicle accident and had incurred significant, and similar, medical bills. (6) When Mansheim filed his timely answer, he also included a personal injury counterclaim. (7) Murray moved for summary judgment on the basis that the statute of limitations had expired on Mansheim's claim. (8) Mansheim argued that a compulsory counterclaim, viable when the initial complaint was filed, received the benefit of relating back to the date of the complaint. (9) After summary judgment was granted in Murray's favor, Mansheim appealed to the South Dakota Supreme Court. (10) The court had previously determined that permissive counterclaims did not benefit from the relation-back doctrine, (11) but a determination on compulsory counterclaims had not been made. (12) Murray v. Mansheim was therefore a case of first impression. (13) The court affirmed summary judgment, holding that Mansheim's compulsory counterclaim was time-barred and did not benefit from the relation-back doctrine. (14) This decision, however, was premised on misconstrued precedent. (15) The court's disregard for plain meaning statutory interpretation is problematic in both Murray and in future cases. (16) To remedy this inconsistency, the court should have reversed the trial court's summary judgment ruling, allowing Mansheim's compulsory counterclaim to be pleaded on remand. (17)

This note first explores the factual and procedural history of Murray v. Mansheim. (18) It continues with a discussion of how differences in permissive and compulsory counterclaims warrant the application of the relation-back doctrine to those counterclaims that are compulsory. (19) This note then examines the analysis of jurisdictions outside of South Dakota that allow compulsory counterclaims to relate back, simultaneously preserving the purposes of a statute of limitations. (20) Additionally, this note analyzes why Mansheim's compulsory counterclaim should have been allowed. (21) Finally, the note concludes with an explanation of the consequences and repercussions of the court's short-sighted holding. (22)

II. FACTS AND PROCEDURE

On September 13, 2003, Travis Mansheim and Chris Murray were involved in a nearly, head-on motor vehicle collision in rural Tripp County, South Dakota. (23) Both parties were severely injured in the crash. Aware that the statute of limitations would bar any action beyond the three-year time frame, Murray filed his personal injury claim before the September 13, 2006, deadline. (25) On September 12, 2006, Murray served Mansheim with a complaint. (26) A month later, Mansheim served his answer and a counterclaim alleging contributory negligence. (27) Although there was no dispute that Mansheim's counterclaim was compulsory, Murray moved for summary judgment on the basis of the statute of limitations. (28) Murray stated that the "well-recognized rule is that a counterclaim seeking affirmative relief for personal injuries must be filed within the applicable statute of limitations without the benefit of relating back to the original complaint." (29)

In response, Mansheim contended that, as a compulsory counterclaim, it related back to the date Murray filed suit and tolled the statute of limitations. (30) In support of his position, Mansheim cited Jacobson v. Leisinger, (31) which held that a permissive counterclaim did not relate back to the complaint and therefore did not toll the statute of limitations. (32) In a footnote, however, the court stated that only compulsory counterclaims benefit from the relation-back doctrine. (33) Mansheim argued that the court in Jacobson had thereby extended his compulsory counterclaim the benefit of the relation-back doctrine in distinguishing permissive and compulsory counterclaims. (34)

The trial court held a hearing on Murray's Motion for Summary Judgment on October 23, 2008. (35) In granting summary judgment, the Sixth Judicial Circuit relied on S.D.C.L. section 15-2-14.1 (36) and S.D.C.L. section 15-2-14.5, (37) which indicated legislative disapproval of tolling for affirmative compulsory counterclaims, to bar Mansheim's compulsory counterclaim because it was served after the statute of limitations had expired. (38) Mansheim appealed. (39)

In his Appellant Brief, Mansheim argued that his counterclaim was wrongfully barred because it sought relief based on the same motor vehicle accident as Murray's complaint. (40) He asserted that the court indicated in Jacobson that compulsory counterclaims, even those for affirmative relief, relate back to the date of the original action. (41) Because of the Jacobson holding and the court's footnote stating that "only compulsory counterclaims benefit from the relation-back doctrine," (42) he again argued that his counterclaim was not barred and should have survived summary judgment. (43)

Mansheim also relied on S.D.C.L. section 15-6-15(c). (44) This section of the South Dakota Code allows for an amendment to the pleadings to relate back to the original complaint provided the following requirements are met:

(1) the claim asserted in the amended complaint arose out of the conduct, transaction, or occurrence set forth in the original pleading; (2) the new defendant has received such notice of the institution of the action th[at] he will not be prejudiced in maintaining his defense on the merits; and, (3) the new defendant knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. (45)

Mansheim argued that since the issues were the same and the evidence would be closely related Murray was provided with notice and suffered no undue prejudice. (46)

Mansheim admitted that his counterclaim was brought after the three-year statute of limitations. (47) He explained, however, that he had chosen not to institute an original action because of "the time and expense involved." (48) He argued that his decision not to pursue his own claim initially should not prohibit him from fully defending himself. (49) Despite the expired statute of limitations, the issue was still the same: "whether the negligence of either party or both parties proximately caused the injuries sustained in the accident." (50)

Murray's Appellee Brief supported the trial court's grant of summary judgment. (51) In analyzing the relation-back doctrine's applicability to counterclaims, Murray narrowed the issue to whether "a counterclaim for personal injuries [was] jurisdictionally barred when asserted after the applicable statute of limitations." (52) He asserted the importance of distinguishing between affirmative compulsory counterclaims, such as those for personal injuries, and defensive counterclaims, such as those for recoupment. (53) Murray also stated that the majority of state courts apply a statute of limitations to complaints and counterclaims alleging personal injuries. (54)

Next, Murray argued that affirming summary judgment in his favor would ensure the proper functions of the statute of limitations. (55) Murray also argued that it was a fair presumption that Mansheim would not have delayed in bringing a lawsuit if he had a well-founded claim. (56) In response, Mansheim filed a Reply Brief. (57) His Reply set forth two additional propositions for the reversal of summary judgment. (58) Mansheim argued that (1) South Dakota should apply the relation-back doctrine to compulsory counterclaims for affirmative relief, and (2) a compulsory counterclaim, like Mansheim's, is not barred by the doctrine of laches. (59)

The South Dakota Supreme Court examined two issues on appeal. (60) First, the court analyzed whether a counterclaim is commenced with the original action or "when stated in the pleadings and served on the opposing party." (61) Second, the court discussed whether an affirmative compulsory counterclaim relates back to the date of the plaintiff's original complaint or if the original complaint tolls the statute of limitations. (62)

The court acknowledged the inherent dilemma created by the South Dakota statutes. (63) The court stated that "[o]ur statutes of limitation bar the untimely commencement of actions, [S.D.C.L. section] 15-2-1, and yet, by law, counterclaims are not technically commenced (no summons required)." (64) It would therefore seem that the South Dakota statute of limitations would not apply to compulsory counterclaims. (65) Ultimately, however, the court decided that such an interpretation of S.D.C.L. sections 15-6-13(a) and 15-6-13(b) would create "absurd results" and held that counterclaims are subject to statute of limitations requirements. (66) In reaching this holding, the court extensively analyzed whether counterclaims are "actions" under S.D.C.L. section 15-1-1(1) (67) and when a counterclaim is "commenced" according to S.D.C.L. section 15-2-1. (68)

Because of their status as "actions," the court found that both types of counterclaims must be subjected to limitation laws. (69) The court based its decision on the ability of a party to independently bring either claim while the initial action is pending. (70) As a result, Mansheim's compulsory counterclaim was barred because it was commenced when pleaded and served a month after the statute of limitations had expired. (71)

The court found the relation-back doctrine in S.D.C.L. section 15-6-15(c) inapplicable to the present counterclaim because the statute allows parties to relate back to their own original pleadings, not the original pleading of a different party. (72) "Because the date of Mansheim's original pleading (answer) is after the statute of limitations expired, any relation back that might be allowed under S.D.C.L. section 15-6-15(c) for counterclaims is of no benefit to Mansheim." (73) The court found that any mention of a compulsory counterclaim's ability to relate back would be separate from S.D.C.L. section 15-6-15(C). (74)

As the sole dissenter, Justice Severson found that because a compulsory counterclaim cannot "commence" an action, it would therefore be a part of the initial action, and, provided the initial action was timely, a compulsory counterclaim would be recognized as brought prior to the expiration of the statute of limitations. (75) He analyzed the same statutes as the rest of the court but interpreted them based upon their plain meaning. (76) Justice Severson explained:
   A plain reading of South Dakota law reveals a compulsory
   counterclaim cannot 'commence' an action. Only the initial summons
   'commences' an action within the meaning of [S.D.C.L. section]
   15-2-1 and [S.D.C.L. section] 15-2-14. A compulsory counterclaim is
   therefore part of the initial action. When the initial action is
   'commenced' within the statute of limitations a compulsory
   counterclaim instituted after the expiration of the statutory
   period is not barred. (77)


Justice Severson found that the court's position did not serve the purposes of a statute of limitations. (78) Since a compulsory counterclaim arises from the same transaction as the opposing party's claim, it should be no staler than the initial action. (79) Ultimately concerned with judicial fairness, Justice Severson stated, "[t]he plaintiff should not reap a benefit, and the defendant the harm, of the plaintiff's decision to delay until the statute of limitations has almost run on his claim." (80)

III. BACKGROUND

A. PURPOSES OF A STATUTE OF LIMITATIONS

Statutes of limitations are designed to facilitate an efficient and fair adjudication of the rights of each party. (81) In addition, statutes of limitation are in place to prevent the prosecution of stale claims and to punish litigants who sleep on their rights." (82) For personal injury actions, South Dakota prescribes a three-year statute of limitations starting from the date the cause of action accrued. (83)

B. COMPULSORY COUNTERCLAIMS

South Dakota differentiates between compulsory and permissive counterclaims, defining the two counterclaims independently. (84) The court adopted the logical relationship test to determine whether a counterclaim is compulsory or permissive. (85) 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 for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction." (86) In determining whether a counterclaim is compulsory or permissive, the court considers the following questions:

1. Are the issues of fact and law raised by the claim and counterclaim largely the same?

2. Would res judicata bar a subsequent suit on defendant's claim absent the compulsory counterclaim rule?

3. Will substantially the same evidence support or refute plaintiff's claim as well as defendant's counterclaim?

4. Is there any logical relation between the claim and counterclaim? (87)

An affirmative answer to one or more of these questions qualifies a counterclaim as compulsory. (88)

The purpose of S.D.C.L. section 15-6-13(a), the compulsory counterclaim statute, "is to reduce the volume of litigation and promote the just, speedy, and inexpensive determination of controversies by barring relitigation of the same set of facts." (89) The compulsory counterclaim rule prevents multiple actions by resolving all disputes arising out of common matters in one suit. (90) Because a compulsory counterclaim arises from the same transaction as the initial complaint, it "qualifies for supplemental jurisdiction that allows a court to resolve an entire dispute between parties in one lawsuit." (91)

C. COMPULSORY CONDITIONALITY: THE DOCTRINE OF RES JUDICATA

A compulsory counterclaim is conditional and, if not pleaded, becomes barred by the doctrine of res judicata. (92) "The doctrine of res judicata serves as claim preclusion to prevent relitigation of an issue actually litigated or which could have been properly raised and determined in a prior action." (93) If a claim should have been raised in the previous proceeding, res judicata will preclude it as a later independent action under the compulsory counterclaim rule. (94) Such a penalty is enforced in the interest of preventing multiple lawsuits. (95)

D. PERMISSIVE COUNTERCLAIM

The second type of counterclaim is permissive. (96) A permissive counterclaim is defined by S.D.C.L. section 15-6-13(b) as "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." (97) A defendant's ability to bring a permissive counterclaim allows courts to dispose of all claims held by the parties in one action, regardless of whether they arose from the same transaction. (98) Because of the court's opportunity to adjudicate multiple, unrelated claims between parties at one time, a separate basis of jurisdiction is required for permissive counterclaims. (99) The South Dakota Supreme Court has definitively determined that permissive counterclaims are subject to a statute of limitations and do not benefit from the relation-back doctrine. (100)

E. SOUTH DAKOTA DEFINITIONS AND MEANING

To ascertain a counterclaim's ability to relate back or toll, it must be classified as a particular type of pleading or action. (101) "Action" is defined by S.D.C.L. section 15-1-1(1) as "an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement, determination, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." (102) The parameters and procedure with which to bring an "action" is expanded in S.D.C.L. section 15-2-1:
   Civil actions can only be commenced within the periods prescribed
   in this title after the cause of action shall have accrued except
   where in special cases a different limitation is prescribed by
   statute. The objection that the action was not commenced within the
   time limited can only be taken by answer or other responsive
   pleading. (103)


The prescribed periods for which certain civil actions can be commenced vary by action. (104)

In interpreting statutes, the South Dakota Supreme Court adheres to the plain meaning of the statutory language. (105) For example, the court stated:
   The purpose of statutory construction is to discover the true
   intention of the law which is to be ascertained primarily from the
   language expressed in the statute. The intent of a statute is
   determined from what the legislature said, rather than what the
   courts think it should have said, and the court must confine itself
   to the language used. Words and phrases in a statute must be given
   their plain meaning and effect. When the language in a statute is
   clear, certain and unambiguous, there is no reason for
   construction, and the Court's only function is to declare the
   meaning of the statute as clearly expressed. (106)


The goal is to not lose sight of or supplement the statute's plain meaning during interpretation. (107) Only when a statute is "ambiguous" does the court look to the legislative history for interpretation. (108) In situations where the South Dakota Rules and the Federal Rules of Civil Procedure are equivalent, the South Dakota Supreme Court considers decisions of the federal court and other states for analytical assistance in interpreting the South Dakota rules. (109)

According to S.D.C.L. section 15-2-30, "an action is commenced as to each defendant when a summons is served [upon them]." (110) Within the plain meaning of S.D.C.L. section 15-2-1 and 15-2-30, only the initial summons can commence an action. (111) Compulsory counterclaims, as explained in S.D.C.L. section 15-6-13(a), require only an assertion in a pleading, not a summons. (112) Despite the lack of a summons, (113) South Dakota has interpreted a permissive counterclaim to be commenced and subject to the applicable statute of limitations when filed within the answer. (114) No tolling provisions for either compulsory or permissive counterclaims have been approved, except when the counterclaim is defensive. (115)

F. NEIGHBORLY ADVICE

Conversely, South Dakota's Eighth Circuit neighbor, Nebraska, defines an "action" as "commenced" for purposes of applying a statute of limitations on the date the original petition is filed. (116) In Becker v. Hobbs, (117) the plaintiff filed a personal injury action as a result of a motor vehicle accident. (118) The defendant's answer asserted two affirmative defenses and a compulsory counterclaim. (119) The plaintiff demurred on the basis that the statute of limitations had expired. (120) In resistance, the defendant argued that because his counterclaim was compulsory it related back to the date the original complaint was filed. (121) It became a question of first impression as to whether the counterclaim, which was valid when the initial action commenced, was barred by the statute of limitations. (122) The Nebraska Supreme Court held that a compulsory counterclaim is considered pleaded, for purposes of the statute of limitations, when the plaintiff's complaint is filed. (123) A determination on whether a compulsory counterclaim should be barred is therefore based on the date of the plaintiff's petition. (124)

G. CLOUDY CASE PRECEDENTS ON RULE 15(C)

1. Interpretation and Application

For over one hundred years, courts and jurisdictions have been divided on the appropriate protocol for tolling and applying a statute of limitations to compulsory counterclaims. (125) Interpretation of Rule 15(c) of the Federal Rules of Civil Procedure is largely the delineator of whether a compulsory counterclaim tolls or is subject to the statute of limitations. (126) Rule 15(c), known as the relation-back doctrine, allows an amendment to relate back to the date of the original pleading when either the "law that provides the applicable statute of limitations allows relation back" or "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading." (127) Unlike Rule 15(c), Rule 13(a), which defines a compulsory counterclaim, does not mention relation-back. (128) Despite an explicit relation-back provision, a variety of courts have permitted compulsory counterclaims to benefit from the relation-back doctrine. (129) State courts in Alaska, (130) California, (131) Idaho, (132) Kentucky, (133) North Carolina, (134) and Ohio (135) have determined that a compulsory counterclaim benefits from the date the original claim was filed provided it was viable when the initial complaint was commenced. A handful of Federal Circuit Courts have also agreed with this proposition. (136)

2. Durant v. Murdock

The question as to whether an initial complaint tolls or waives the defense of the statute of limitations was first posed and answered in Durant v. Murdock. (137) In Durant, the plaintiff filed an action on September 21, 1893. (138) On November 7, 1893, the defendant responded with a set-off plea for $300 that he claimed to have lent the plaintiff between May 13, 1890, and September 24, 1890. (139) The trial court barred the defendant's claim based upon the three year statute of limitations. (140) In the defendant's petition for a rehearing, he argued that $200 of the amount lent had been within the three year statute of limitations, and that, although his plea was not filed until the statute of limitations had expired, such an expiration had been tolled "against any claim that might properly be pleaded as a set-off against him," because of the plaintiff's suit. (141) The court adhered to long established decisions from Pennsylvania (142) and Maryland (143) in holding "that the statute runs against the plaintiff until the issuing of his writ and against the defendant until the filing of his plea." (144) The Court of Appeals of the District of Columbia agreed and denied the defendant's petition for rehearing. (145)

3. Kirkpatrick v. Lenoir County Board of Education

The Fourth Circuit applied the relation-back doctrine in the context of compulsory counterclaims in Kirkpatrick v. Lenoir County Board of Education. (146) In Kirkpatrick, a special education due process petition was filed against the Lenoir County Board of Education pursuant to the Individuals with Disabilities Education Act. (147) The suit alleged that the Board had violated the Kirkpatricks' minor daughter's [Meridith's] rights, a child with a disability, "by failing to provide her with a free, appropriate public education as required by federal and state law." (148) The Lenoir County administrative law judge ordered the board to develop an individualized education plan for Meridith, but denied reimbursement for the three independent educational evaluations and for the private school tuition. (149) On appeal, the individualized education plan and denial of tuition reimbursement was affirmed, but the decision regarding the independent educational evaluation was reversed, with reimbursement ordered. (150) That order also informed the parties that they could institute a civil action within thirty days if they were displeased with the decision. (151)

On the final day of the thirty-day period, the Kirkpatricks commenced a civil action against the Board for reimbursement of the private school tuition. (152) The Board did not file an action within the prescribed period, but did respond to the Kirkpatricks' complaint with an "Answer and Appeal." (153) The Kirkpatricks sought to dismiss the Board's action as an untimely appeal. (154) Their motion was denied. (155) The district court characterized the Board's response as a compulsory counterclaim under Rule 13(a) (156) and allowed it to relate back to the date of the Kirkpatricks' complaint. (157) The Kirkpatricks appealed. (158) Ultimately, the court concluded that "an action filed in federal district court pursuant to the [Individuals with Disabilities Education Act] is an original civil action" and subject to the Federal Rules of Civil Procedure. (159) The court's decision coincided with the Fourth Circuit that allows a compulsory counterclaim to relate back to the date of the initial complaint. (160)

4. MacDonald v. Riggs

In MacDonald v. Riggs (161) the Alaska Supreme Court cited multiple reasons for allowing a compulsory counterclaim to toll the statute of limitations, provided the claim was viable when the original complaint was filed. (162) In line with Justice Severson's analysis, the Alaska Court's Rule 15(c) interpretation allowed a compulsory counterclaim to relate back because it prevents plaintiffs from delaying commencing an action until fight before the statute of limitations expires so as to effectively bar a defendant's counterclaim. (163) The plaintiff does not suffer any prejudice by tolling the statute of limitations, "since he presumably has notice at the time he commences his action of any counterclaim arising out of the same transaction as his suit." (164) The Alaska Supreme Court also acknowledged that the close relationship between a timely claim and an untimely counterclaim guarantees that both matters could be adjudicated because they rely on the same evidence. (165)

5. Chauffeurs, Teamsters, Warehousemen & Helpers, Local Union No. 135 v. Jefferson Trucking Co., Inc.

Conversely, the Seventh Circuit determined in Chauffeurs, Teamsters, Warehousemen & Helpers, Local Union No. 135 v. Jefferson Trucking Co., Inc. (166) that a compulsory counterclaim brought after its applicable statute of limitations had expired, was barred. (167) In Chauffeurs, the plaintiff instituted an action to enforce an arbitration award that the defendant refused to pay. (168) The defendant denied the allegations and alleged eight affirmative defenses. (169) The plaintiff moved for summary judgment on the ground that the defendant's inaction regarding the award, within the ninety days allotted, precluded him from attacking the award's validity. (170) The district court granted the plaintiff's motion, effectively barfing the defendant from challenging the propriety of the arbitration award because of the statute of limitations. (171)

On appeal, the Seventh Circuit concluded that the action was appropriately brought under Section 301 of the Labor-Management Relations Act of 1947 ("LMRA"). (172) Since Section 301 of the LMRA does not set a time limit for actions to vacate an arbitration award, the timeliness is set by federal law, with reference to the appropriate state statute of limitations. (173) The district court deferred to the Uniform Arbitration Act, adopted in Indiana, as the appropriate state statute of limitations in affixing the ninety-day period. (174) The defendant had attacked the award's validity nearly six months after the arbitration order, and three months after the statute of limitations had expired. (175) Consequently, the district court's holding was affirmed. (176)

H. DEFENSE AS A CREDIBLE OFFENSE

While jurisdictions dispute whether a compulsory counterclaim pied as an affirmative defense tolls the statute of limitations, it is universally accepted that counterclaims as defense mechanisms are not subject to statute of limitations. (177) Counterclaims seeking recoupment are "in the nature of a defense arising out of some feature of the transaction upon which the plaintiff's action is grounded." (178) This defensive pleading is never barred by a statute of limitations, provided the initial action was timely. (179)

Additionally, it is also widely accepted that a counterclaim seeking affirmative relief is barred if its statute of limitations expired prior to the original action's commencement. (180) In Ed Miller & Sons, Inc. v. Earl, (181) the applicable statute of limitations had expired on the defendant's counterclaim one year prior to the date the plaintiff filed its petition. (182) Because the defendant's counterclaim was not viable when the plaintiff's action was brought, it was barred. (183) Tolling is also prohibited when the counterclaim was not initially viable. (184)

IV. ANALYSIS

The South Dakota Supreme Court's decision in Murray v. Mansheim held that a compulsory counterclaim brought after the applicable statute of limitations expired was time-barred. (185) In coming to this conclusion, the court considered when a compulsory counterclaim commenced for purposes of attaching the statute of limitations, (186) whether a compulsory counterclaim related back to the date the initial complaint was filed, and if the original petition tolled the statute of limitations. (187) The latter two issues were questions of first impression. (188)

The majority erred for multiple reasons in holding that a compulsory counterclaim, viable at the time of the initial complaint, was barred by a statute of limitations. (189) First, the court disregarded its standard plain-meaning interpretation of statutes. (190) Second, the court ignored the fundamental differences between compulsory and permissive counterclaims in its application of Jacobson. (191) Third, the court failed to articulate how the purposes of a statute of limitations are served when a compulsory counterclaim, viable at the original complaint's inception, is prevented from being pleaded. (192) Fourth, after departing from the plain meaning of S.D.C.L. sections 15-1-1, 15-2-1, and 15-2-30, the court insisted on only entertaining S.D.C.L. section 15-6-15(c)'s plain meaning in its refusal to relate back the compulsory counterclaim. (193) Fifth, the court failed to consider the relation-back doctrine's ability to justify its plain meaning exodus. (194) Ultimately, the court came to an incorrect result because of inappropriate statutory construction and misconstrued case precedent. (195)

The court has long adhered to the principle that when language is unambiguous, further construction is unnecessary. (196) In such situations, the court is to "declare the meaning of the statute as clearly expressed." (197) Such strict adherence was absent in Murray. (198) The issue when read collectively was whether S.D.C.L. sections 15-2-1, 15-2-30, and 15-6-13(a), along with South Dakota case law and extra-jurisdictional holdings, barred Mansheim's counterclaim. (199) The court's departure from plain meaning interpretation severed Mansheim's defensive capabilities. (200)

A. PLAIN MEANING IN SOUTH DAKOTA

A consistent standard for statutory interpretation exists in South Dakota. (201) "The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used." (202) A plain reading of S.D.C.L. sections 15-2-30, 15-2-1, and 15-6-13(a) revealed that, although actions are commenced by a summons and subject to a statute of limitations, a summons is not required to assert a counterclaim. (203) The court initially provided each statute with its plain meaning and effect, stating that "it would appear that limitation laws should not bar counterclaims," in recognizing that S.D.C.L. section 15-2-1 bars the untimely commencement of actions and S.D.C.L. section 15-6-13(a) is not technically commenced, because a summons is not required. (204) Strangely, despite the plain meaning acknowledgment and application, the court exceeded the statutory language and constructed an interpretation that subjects a compulsory counterclaim to a statute of limitations. (205)

The rationale ultimately accepted by the majority was that a compulsory counterclaim, as an "action" pursuant to S.D.C.L. section 15-1-1, (206) is subject to a statute of limitations because "[c]ivil actions can only be commenced within the periods prescribed." (207) The court's analysis completely disregarded the summons requirement for commencing an action under S.D.C.L. section 15-2-30. (208) It is the pleading procedure that is determinative of whether a counterclaim was "commenced" and whether a statute of limitations attached. (209)

A compulsory counterclaim is a responsive pleading, asserted and served without a summons. (210) Based upon S.D.C.L. section 15-2-30's plain meaning, a compulsory counterclaim cannot therefore be "commenced." (211) The inability to commence a counterclaim prevents the attachment of a statute of limitations under the plain meaning of S.D.C.L. section 15-2-1. (212) The language "[a] pleading shall state as a counterclaim" is rendered superfluous if a compulsory counterclaim is considered pleaded on a day separate from the day of the initial complaint because it ignores the counterclaim's statutory classification as a pleading. (213)

Disregarding the pleading procedure dictated by S.D.C.L. section 15-6-13(a) and the plain meaning of S.D.C.L. section 15-2-30, the court decided that without a contrary statute, counterclaims seeking affirmative relief were actions subject to a statute of limitations. (214) Had the plain meaning precedent been followed, a compulsory counterclaim, viable at the complaint's inception, would not have been barred. (215) Likewise, the civil defendant would not be disarmed. (216)

B. IMPROPER RELIANCE

In barring Mansheim's compulsory counterclaim, the court unreasonably hedged its decision on its Jacobson holding. (217) The court's explicit preclusion of relating back a counterclaim in Jacobson was specific to a permissive counterclaim. (218) South Dakota statutorily distinguishes between compulsory and permissive counterclaims; (219) such demarcations are drawn in Jacobson. (220) This decision included a footnote that referenced Wright & Miller's Federal Rules of Civil Procedure section 1425, which states "compulsory counterclaims benefit from the relation back doctrine." (221) The footnote went on to cite Aramony v. United Way of America (222) and MacDonald v. Riggs (223) to substantiate the applicability of the relation-back doctrine to compulsory counterclaims. (224) Despite the court's initial reliance on Wright & Miller and its assertion of a compulsory counterclaim's ability to relate back, the court contradicted its position by deferring to Moore's Federal Practice (225) and declaring the Jacobson footnote as non-binding dicta. (226)

Though not binding, the court has recognized that "[dicta] is a maxim not to be disregarded" and should be "taken in connection with the case in which those expressions are used." (227) It is evident by this footnote that the court, despite compulsory counterclaims not being at issue in Jacobson, considered the Wright & Miller standard and outside jurisdictions that utilize that standard to be applicable to South Dakota. (228) Had the court wished to remain silent on the relation-back doctrine's applicability to compulsory counterclaims, it could have refrained from publishing the footnote. (229) The citation to Wright & Miller, over Moore, in Jacobson evidenced the court's recognition of the inherent and procedural differences between counterclaims. (230)

The initial complaint filed by Murray was for personal injuries sustained in a motor vehicle accident. (231) Mansheim's counterclaim was also for personal injuries sustained in the same motor vehicle accident. (232) Mansheim's counterclaim was the epitome of compulsory. (233) In either tolling the statute of limitations or relating back to Murray's original complaint, Mansheim's counterclaim did not offend the goals of the statute of limitations because his claim arose from the same motor vehicle collision. (234) Had the counterclaim been permissive, no grounds would exist to relate back or toll the statute of limitations. (235) The judicial efficiency encouraged by permissive counterclaims is furthered as the expired statute of limitations would prevent a subsequent, independent suit. (236)

C. PRESERVATION OF PARALLEL PURPOSES

In its refusal to allow Mansheim's compulsory counterclaim, the court overlooked the parallel purposes that compulsory counterclaims and statute of limitations serve. (237) Compulsory counterclaims seek to reduce the volume of litigation and promote the just, speedy, and inexpensive determination of controversies by barring relitigation of the same set of facts." (238) Similarly, "statutes of limitation are in place to prevent the prosecution of stale claims and to punish litigants who sleep on their rights." (239) An efficient and fair adjudication of the rights of each party is promoted by the statute of limitations. (240)

The purposes of compulsory counterclaims and statute of limitations are simultaneously attainable because the "necessarily close relationship between the timely claim and untimely counterclaim should insure that the latter is not 'stale' in the sense of evidence and witnesses no longer being available[.]" (241) Additionally, "[b]ecause [the initial complaint and counterclaim] arise from the same incident, the compulsory counterclaim is no staler than the initial action." (242) Since Murray filed his complaint a mere one day before the statute of limitations concluded, any possibility for Mansheim to file a "timely" counterclaim, as defined by the South Dakota Supreme Court, was eliminated. (243) As a compulsory counterclaim, Mansheim's evidence would be closely related, if not identical, providing Murray with notice and no undue prejudice. (244) Furthermore, Murray could not be prejudiced by the lapse of time between the filing of his complaint and Mansheim's counterclaim because it must be filed shortly thereafter or be barred by res judicata. (245)

Punishing Mansheim for Murray's eleventh-hour complaint left him unarmed and disabled by summary judgment. (246) Condoning such defendant debilitating practices harms the goals of just, speedy, and inexpensive determination of controversies as sought by both statute of limitations and compulsory counterclaims. (247) To realize these goals, the court should promote litigation of both party's claims in the same proceeding. (248) The relation-back doctrine does just that. (249)

D. RELATION BACK

The court refused to allow compulsory counterclaims the benefit of the relation-back doctrine because it would relate back to the pleading of a different party. (250) In this instance, the court steadfastly applied S.D.C.L. section 15-6-15(c)'s plain meaning. (251) It is unclear why the court refused to apply the plain meaning to the previously discussed statutes, but instead relied on S.D.C.L. section 15-6-15(c)'s plain meaning so as only to apply to amendments. (252) The majority's only option congruent with both the plain meaning precedent and its desire to apply a statute of limitations to compulsory counterclaims would be application of the relation-back doctrine. (253)

An irreconcilable marriage between compulsory and permissive counterclaims occurred when the court allowed Jacobson to control in Murray. (254) Grouping the counterclaims together because of how they are literally pleaded was cavalier, as it is the intrinsic differences between the two counterclaims that result in only one fairly benefitting from the relation-back doctrine. (255) Permissive counterclaims do not become illusory when the relation-back doctrine is furnished to compulsory counterclaims. (256) In addition, compulsory counterclaims already receive accommodations not afforded to permissive counterclaims, such as needing no separate basis of jurisdiction. (257) Thus, permissive and compulsory counterclaims are already treated differently, and there was no need to begin treating them the same. (258)

When the South Dakota and the Federal Rules are identical, the South Dakota Supreme Court looks to other states and jurisdictions for analytical interpretation. (259) S.D.C.L. section 15-6-15(c) and Federal Rule of Civil Procedure section 15(c) are equivalent. (260) It is therefore appropriate to consider the holdings of foreign jurisdictions that have allowed compulsory counterclaims to relate back under section 15(c). (261) State courts in Alaska, (262) California, (263) Idaho, (264) Kentucky, (265) North Carolina, (266) and Ohio, (267) as well as a selection of Federal Circuit Courts, allow a compulsory counterclaim to benefit from the date the initial complaint was brought, provided it was viable when the original claim was commenced. (268) One of the primary reasons outside jurisdictions have rationalized relating back or tolling the statute of limitations is because of the unlikelihood of a counterclaim being "stale" when it was viable at the time the initial complaint was filed. (269)

The doctrine of res judicata is also unharmed by allowing a compulsory counterclaim to relate back or toll. (270) Since a claim would be prohibited in a subsequent suit because of the expired statute of limitations, res judicata's purposes of claim preclusion and judicial efficiency are upheId. (271) The res judicata penalty would still exist, but the affirmative defense of an expired statute of limitations would be more likely to be pleaded because it would be easier to prove. (272)

By relating back to the date of the initial complaint or tolling the statute of limitations to the time allocated for a response, S.D.C.L. section 15-6-13(a) can guard against duplicitous litigation. (273) The opportunity to adjudicate a compulsory counterclaim that was viable at the initial complaint's filing guarantees defendants a defense. (274) Providing S.D.C.L. section 15-6-13(a) with section 15-6-15(c)'s relation-back capability will prevent and preempt future tactical maneuvers, reminiscent of Murray's last-minute suit. (275) Application of the relation-back doctrine to compulsory counterclaims also prevents individuals from being forced to file a lawsuit. (276) People with monetary and time concerns, similar to Mansheim's, would not be obligated to file suit at the risk of losing their ability to affirmatively defend themselves. (277) As a matter of public policy, those who choose to forego the courthouse route should not be judicially punished. (278) The relation-back doctrine's ability to encourage settlement and create fewer lawsuits can reduce docket congestion and expedite the judicial process. (279) No prejudice will result from extending this accommodation to those who do not file an initial action, as only compulsory counterclaims benefit. (280)

E. RECOUPMENT AND DEFENSE

It is important to note that the compulsory counterclaim at issue in Murray was viable when the original complaint was brought. (281) If the compulsory counterclaim had expired on or before the date of the initial complaint, no disagreement would exist as to the inability to subsequently plead the compulsory counterclaim. (282) Where the purposes of a statute of limitations are not violated by a compulsory counterclaim viable at the original action's inception, such purposes would be violated by allowing an already defunct action to be revived. (283) Also, it is well established that a recoupment defense can always be brought, regardless of a statute of limitations. (284) In short, had Mansheim's counterclaim been solely defensive or for recoupment it would not have been barred because the main action was timely. (285)

V. CONCLUSION

Oscillation between plain meaning statutory interpretation and judicially created doctrine established an inconsistent standard in Murray v. Mansheim. The improper statutory construction and misconstrued case precedent utilized by the South Dakota Supreme Court encourages parties to engage in tactical maneuvers in the hopes of disarming their opponent. Instead of striving to win cases on the merits, this decision promotes winning on potentially man-made technicalities. Additionally, it persuades individuals to file suit quickly, not timely, in lieu of settlement or negotiation. An institutionalized practice that replaces preparation with manipulation and pushes for increased litigation promises problems for the legal profession.

To correct this decision the court should return to their original position, cited in Jacobson, which allowed compulsory counterclaims to benefit from the relation-back doctrine. Extra-jurisdictional direction confirms that the court's return to previous precedent and actual application of relation back, both here and in the future, comports and preserves the purposes of statute of limitations. The simultaneous ability to discourage a race to the courthouse and safeguard potential defendant's affirmative defenses, within already constructed statutes, preserves the integrity and expediency of the judicial system.

(1.) See Olawsky v. Clausen, 212 N.W.2d 653,655 n.4 (S.D. 1973). "The purpose of compelling counterclaims which are related to the principal claim is to reduce the volume of litigation and promote the just, speedy, and inexpensive determination of controversies by barring relitigation of the same set of facts." Id. (quoting Charles Allen Wright, Estoppel By Rule: The Compulsory Counterclaim Under Modern Pleading, 38 MINN. L. REV. 423, 431 (1954)).

(2.) See Religious Tech. Ctr. v. Scott, 82 F.3d 423, 1996 WL 171443, *8 (9th Cir. 1996) (stating "a compulsory counterclaim relates back to the filing of the original complaint"); Wells v. Rockefeller, 728 F.2d 209, 214-16 (3d Cir. 1984) (finding that compulsory counterclaims seeking dissolution, accounting, and for fraud were barred by statute of limitations); Employers Ins. of Wausau v. United States, 764 F.2d 1572, 1576 (Fed. Cir. 1985) (stating "[t]he institution of a plaintiffs suit suspends the running of limitations on a compulsory counterclaim while the suit is pending"); In re Smith, 737 F.2d 1549, 1552-54 (11th Cir. 1984) (disallowing time-barred affirmative claim to be brought as counterclaim noting that "this change of labels does not effect [sic] a change in the essential character of the action"); Burlington Indus. v. Milliken & Co., 690 F.2d 380, 389 (4th Cir. 1982) (stating "[r]ule 13(a) contains no mention of relation back. Nonetheless, the better view holds that 'the institution of plaintiffs suit tolls or suspends the running of the statute of limitations governing a compulsory counterclaim'"); Chauffeurs, Teamsters, Warehousemen & Helpers, Local Union No. 135 v. Jefferson Trucking Co., 628 F.2d 1023, 1027 (7th Cir. 1980) (stating "[a] counterclaim for affirmative relief may not be asserted if barred by the statute of limitations"); Luckenbach S.S. Co. v. United States, 312 F.2d 545, 551 (2d Cir. 1963) (holding that the defense of reduction or recoupment is allowed so long as the cause of action exists, but an affirmative defense may be barred by a statute of limitations); Penn. R. Co. v. Miller, 124 F.2d 160, 161-62 (5th Cir. 1941) (noting that an affirmative counterclaim may be barred by a statute of limitations); Williams v. Neely, 134 F.1, 13 (8th Cir. 1904) (stating "[t]he defense of reduction or recoupment which arises out of the same transaction as the note or claim survives as long as the cause of action upon the note or claim exists, although an affirmative action upon the subject of it may be barred by the statute of limitations"); Durant v. Murdock, 1894 WL 11955, at *8 (D.C. 1894) (stating "it is not the institution of a suit, but the exhibiting of a cause of action, that determines the application of the statute of limitations"); Canned Foods, Inc. v. United States, 140 F. Supp. 771, 772 (Ct. Cl. 1956) (holding that the statute of limitations is tolled for a compulsory counterclaim).

(3.) See MacDonald v. Riggs, 166 P.3d 12, 17-18 (Alaska 2007) (discussing the split of authority regarding the tolling or applicability of the statute of limitations); Armstrong v. Logsdon, 469 S.W.2d 342, 343 (Ky. 1971) (holding that the filing of an initial action tolls the applicable statute of limitations); Jones v. Mortimer, 170 P.2d 893, 896-97 (Cal. 1946) (holding that the defendant's compulsory counterclaim was tolled by the plaintiff's initial action as a continuation of that action); Denton v. Detweiler, 282 P. 82, 84 (Idaho 1929) (holding that a counterclaim was subject to the statute of limitations provided the counterclaim was viable at the time the initial action was commenced); Eagle Sav. & Loan Ass'n v. West, 50 N.E.2d 352, 357 (Ohio Ct. App. 1942) (stating that "[t]he cause of action of a defendant, still in force at the time of filing a petition against him, though barred by the statute of limitations, when the cross-petition is filed, may still be asserted against the plaintiff in spite of such fact") (internal citations omitted)).

(4.) 2010 SD 18, 779 N.W.2d 379.

(5.) Brief for Plaintiff in Support of Summary Judgment at 2, Murray v. Mansheim, 2010 SD 18, 779 N.W.2d 379 (No. 06-116) [hereinafter Plaintiff's Brief].

(6.) Brief for Appellee at 3, Murray v. Mansheim 2010 SD 18, 779 N.W.2d 379 (No. 25097) [hereinafter Appellee's Brief].

(7.) Murray, 2010 SD 18, [paragraph] 2, 779 N.W.2d at 381.

(8.) Brief for Defendant in Resistance to Summary Judgment at 1-2, Murray v. Mansheim, 2010 SD 18, 779 N.W.2d 379 (No. 06-116) [hereinafter Defendant's Brief]. See Murray, 2010 SD 18, [paragraph] 3, 779 N.W.2d at 381.

(9.) Defendant's Brief, supra note 8, at 2.

(10.) Murray, 2010 SD 18, [paragraph] 3, 779 N.W.2d at 381.

(11.) Jacobson v. Leisinger, 2008 SD 19, [paragraph] 30 n.7, 746 N.W.2d 739, 747 n.7.

(12.) See Murray, 2010 SD 18, [paragraph] 13, 779 N.W.2d at 384.

(13.) Id.

(14.) Id. [paragraph] 1.

(15.) See id. [paragraph][paragraph] 33-34 (Severson, J., dissenting).

(16.) See id. 1 36 (stating that "[t]he plaintiff should not reap a benefit, and the defendant the harm, of the plaintiffs decision to delay until the statute of limitations has almost run on his claim").

(17.) See generally id. [paragraph][paragraph] 30-37 (dissenting on the grounds that the compulsory counterclaim should have been allowed because it arose out of the same transaction or occurrence).

(18.) See infra Part II.

(19.) See infra Part III.

(20.) See infra Part III.

(21.) See infra Part IV.

(22.) See infra Part V.

(23.) Appellee's Brief, supra note 6, at 3.

(24.) Defendant's Brief, supra note 8, at 1. In this accident, "Chris Murray sustained a severe brain injury." Appellee's Brief, supra note 6, at 3. Travis Mansheim's injuries were severe enough to generate more than $50,000 in medical bills. Id.

(25.) Brief for Appellant at 3, Murray v. Mansheim, 2010 SD 18, 779 N.W.2d 379 (No. 25097) [hereinafter Appellant's Brief]. The statute of limitations for a personal injury action is three years. S.D.C.L. [section] 15-2-14(3) (2004). On September 13, 2006, a personal injury action by either party arising from the September 13, 2003 accident would become time-barred. See S.D.C.L. [section] 15-2-14(3) (2004).

(26.) Murray v. Mansheim, 2010 SD 18, [paragraph], 2, 779 N.W.2d 379, 381. See S.D.C.L. [section] 15-2-30 (2004).

(27.) Murray, 2010 SD 18, [paragraph] 2, 779 N.W.2d at 381.

(28.) Id. See S.D.C.L. [section] 15-6-13(a) (2004).

(29.) Plaintiff's Brief, supra note 5, at 4 (citing J.B. Hunt Transp., Inc. v. Falcon Transp. Co., 723 F. Supp. 359, 361 (W.D. Pa. 1989) (finding that counterclaims asserting negligence in personal injury and asking for a money judgment, were claims asserting set-off, as opposed to recoupment and were therefore barred by the two-year statute of limitations); Molnar v. Hedden, 649 A.2d 71, 75 (N.J. 1994) (concluding that the relation-back doctrine was inapplicable because the statute of limitations had expired); Harmer v. Hulsey, 467 A.2d 867, 869 (Pa. 1983) (stating that a counterclaim for personal injury raised two years and nine days after the date of the accident was barred by the two-year statute of limitations, even though plaintiff filed his complaint near the end of the two year limitations period); Biddle v. Biddle, 395 A.2d 218, 222 (N.J. 1978) (ruling that a defendant could not plead an affirmative crossclaim after the statute of limitations had expired); Dinorsea v. Tibbett, 124 A.2d 715 (Del. 1956) (holding that a personal injury claim asserted in counterclaim was an action within the limitation statute and was time barred when asserted after the applicable statute of limitations); Noble v. C.E.D.O., Inc., 374 N.W.2d 734, 742 (Minn. Ct. App. 1985) (holding that a counterclaim seeking affirmative relief must be filed before the statute of limitations has run and does not relate back to the lawsuit's commencement); Duhammel v. Star, 653 P.2d 15, 16 (Ariz. Ct. App. 1982) (stating that a counterclaim asserting affirmative claims for damages must be commenced before the applicable statute of limitation) (overruled on other grounds); Dignan v. Midas-International Corp., 382 N.E.2d 559, 561-62 (Ill. App. Ct. 1978) (holding that a counterclaim filed in a wrongful death action by the defendant after the applicable statute of limitations was time barred not in the nature of a set-off, bill of equity, cross demand or other form of claim within the Illinois statute that would have saved the counterclaim from the statute of limitations); Williams v. Dumais, 385 A.2d 686, 687-88 (Conn. Super. Ct. 1977) (holding that a defendant in a personal injury action arising out of a motor vehicle collision cannot wait until the statute of limitations has expired before asserting his own personal injury claim by way of a crossclaim)). Murray acknowledged that South Dakota had not specifically addressed this issue, but argued that there was no reason for a different outcome. Plaintiff's Brief, supra note 5, at 6.

(30.) Defendant's Brief, supra note 8, at 2.

(31.) Id. (citing Jacobson v. Leisinger, 2008 SD 19, 746 N.W.2d 739).

(32.) Id. at 3 (citing Jacobson, 2008 SD 19, [paragraph][paragraph] 30-31 n.7, 746 N.W.2d at 747 n.7) (emphasis added).

(33.) Id. (citing Jacobson, 2008 SD 19, [paragraph] 30 n.7 (citing 6 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE [section] 1425 (2d ed. 1990))). "Although Leisinger claims his permissive counterclaim relates back to the filing of Jacobson's conversion claim, effectively tolling the statute of limitations, this argument is without merit." Jacobson, 2008 SD 19, [paragraph] 30 n.7, 746 N.W.2d at 747 n.7. "Only compulsory counterclaims benefit from the relation back doctrine." Id. (citing 6 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE [section] 1425 (2d ed. 1990)). "Indeed, even in the cases cited to this Court by Leisinger, Aramony v. United Way of America and MacDonald v. Riggs, permissive counterclaims are not permitted to benefit from the relation back doctrine." Id. (citing Aramony v. United Way of Am., 969 F. Supp. 226, 231 (S.D.N.Y. 1997) (stating that a "counterclaim tolls its limitations period at the filing of the initial complaint if it is compulsory, but not until the service of the counterclaim if it is permissive") (citations omitted); MacDonald v. Riggs, 166 P.3d 12, 18 (Alaska 2007) (stating that the counterclaim is compulsory and relates back "if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim") (citation omitted).

(34.) See generally Defendant's Brief supra note 8, at 4 (contending that compulsory counterclaims benefit from the relation back doctrine as acknowledged by the court in Jacobson).

(35.) Appellee's Brief, supra note 6, at 2.

(36.) See S.D.C.L. [section] 15-2-14.1 (2004).

(37.) See S.D.C.L. [section] 15-2-14.5 (2004).

(38.) Murray v. Mansheim, 2010 SD 18, [paragraph] 3,779 N.W.2d 379, 381.

(39.) Id.

(40.) Appellant's Brief, supra note 25, at 5.

(41.) Id. (citing Jacobson v. Leisinger, 2008 SD 19, 746 N.W.2d 739).

(42.) Id. (citing Jacobson, 2008 SD 19, [paragraph] 30 n.7, 746 N.W.2d at 747 (citing 6 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE [section] 1425 (2d ed. 1990))).

(43.) Id. at 6.

(44.) Id. at 8-9.

(45.) Id. at 9 (discussing the applicability of Sjoland v. Carter, 2003 SD 56, [paragraph] 10, 664 N.W.2d 48, 52, to S.D.C.L. [section] 15-6-15(c) (2004)).

(46.) Appellant's Brief, supra note 25, at 8.

(47.) See id. at 10.

(48.) Id. Mansheim also doubted a lawsuit's necessity because Murray had been injured as well. Id.

(49.) Id.

(50.) Id.

(51.) See generally Appellee's Brief, supra note 6, at 15.

(52.) Id. at 4.

(53.) Id. at 4 n.1.

(54.) Id. at 7-9 (see J.B. Hunt Transp., Inc. v. Falcon Transp. Co., 723 F. Supp. 359, 361 (W.D. Pa. 1989) (finding that counterclaims asserting negligence in a personal injury action and asking for a money judgment, were claims asserting set-off, as opposed to recoupment, and were therefore barred by the two-year statute of limitations); Noble v. C.E.D.O. Inc., 374 N.W.2d 734, 742 (Minn. Ct. App. 1985) (holding that a counterclaim seeking affirmative relief must be filed before the statute of limitations has run and does not relate back to the lawsuit's commencement); Duhammel v. Star, 653 P.2d 15, 16 (Ariz. Ct. App. 1982) (stating that a counterclaim asserting affirmative claims for damages must be commenced before the applicable statute of limitations) (overruled on other grounds); Williams v. Dumais, 385 A.2d 686, 687-88 (Conn. Super. Ct. 1977) (holding that a defendant in a personal injury action arising out of a motor vehicle collision cannot wait until the statute of limitations has expired before asserting his own personal injury claim by way of a counterclaim)). See, e.g., Kansas Pub. Employees Ret. Sys. v. Reimer & Koger Assoc., Inc. 936 P.2d 714, 719 (Kan. 1997) (stating "a demand pleaded by way of a setoff, counterclaim, or cross-claim is regarded as an affirmative action and, unlike a matter of pure defense, is subject to the operation of the statute of limitations"); Bednar v. Bednar, 688 A.2d 1200, 1205 (Pa. 1997) (stating that a counterclaim seeking affirmative relief must be brought before the statute of limitations expires); Freiberger v. American Triticale, Inc. 815 P.2d 437, 439-40 (Idaho 1991) (stating "[w]here the claim of the defendant is an affirmative independent cause of action not in the nature of a defensive claim, the defendant must comply with the applicable statute of limitations); State ex rel. Egeland v. City Council of Cut Bank, Montana, 803 P.2d 609 (Mont. 1990) (stating that a counterclaim for affirmative relief does not relate back to the commencement of the plaintiffs action); Brown v. Hipshire, 553 S.W.2d 570, 571-72 (Tenn. 1977) (holding that a counterclaim for affirmative relief must be filed before the statute of limitations expires because a claim "is not stripped of its character as an independent action by acquiring the label 'counterclaim'"); Hawkeye-Security Ins. Co. v. Apodaca, 524 P.2d 874, 879 (Wyo. 1974) (noting as a general rule that defensive claims relate back, but the statute is not tolled as to claims for affirmative relief); Bennett v. Dalton, 84 P.3d 265, 270-71 (Wash. Ct. App. 2004) (noting that a majority of courts treat affirmative counterclaims as independent and unrelated to the plaintiffs complaint, and must therefore be filed within the statute of limitations); Ho. v. Rubon, 756 A.2d 643, 647 (N.J. Super. Ct. Ch. Div. 1999) (noting that defamation is not a claim for "recoupment" and must be asserted as a counterclaim or cross-claim before the statute of limitations expires); Floyd v. Ballenger, 258 A.2d 911, 913 (Del. Super. Ct. 1969) (holding that all affirmative claims must be commenced before the statute of limitations runs).

(55.) See Appellee's Brief, supra note 6, at 5 (citing State of Minn. ex rel. Hove v. Does, 501 N.W.2d 366, 370 (S.D. 1993)).

(56.) Id. at 6 (citing Shinabarger v. Jatoi, 385 F. Supp. 707, 710 (D.S.D. 1974); Alston v. Hormel Foods, 730 N.W.2d 376, 431 (Neb. 2007); Hackworth v. Ralston Purina Co., 381 S.W.2d 292, 294 (Tenn. 1964); Bennett v. Bennett, 361 N.E.2d 193, 196 (Ind. Ct. App. 1977)).

(57.) See generally, Reply Brief for Appellant, Murray v. Mansheim, 2010 SD 18, 779 N.W.2d 379 (No. 25097) [hereinafter Reply Brief].

(58.) Reply Brief, supra note 57, at 1, 7.

(59.) Id. Laches is an equitable defense. See Hyde v. Liebelt, 394 N.W.2d 888, 893 (S.D. 1986) (Wuest, C.J., dissenting). The court in In re Administration of the C.H. Young Revocable Living Trust stated:
   For laches to bar recovery, it must be shown that the individual
   '(1) had full knowledge of the facts upon which the action was
   based, (2) regardless of this knowledge, [they] engaged in an
   unreasonable delay before seeking relief in court, and (3) that it
   would be prejudicial to proceed' with the action.


In re Administration of the C.H. Young Revocable Living Trust, 2008 SD 43, [paragraph] 10, 751 N.W.2d 715, 717-18 (citing Conway v. Conway, 487 N.W.2d 21, 24 (S.D.1992)). Mansheim argued that the doctrine of laches did not apply because Murray cannot show any prejudice because "the issues in the complaint and the counterclaim are the same," providing Murray with adequate notice. Reply Brief, supra note 57, at 7-8.

(60.) Murray v. Mansheim, 2010 SD 18, [paragraph] 5,779 N.W.2d 379, 382.

(61.) Id. [paragraph] 6.

(62.) Id. [paragraph] 11.

(63.) Id. [paragraph] 7.

(64.) Id. (citing S.D.C.L. [section] 15-2-1 (2004); S.D.C.L. [section] 15-6-13(a)-(b) (2004)).

(65.) Id.

(66.) See Murray v. Mansheim, 2010 SD 18, [paragraph] 7, 779 N.W.2d 379, 382.

(67.) S.D.C.L section 15-1-1(1) states: "An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement, determination, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." S.D.C.L. [section] 15-1-1(1) (2004).

(68.) Murray, 2010 SD 18, [paragraph] 7, 779 N.W.2d at 382-83. S.D.C.L. section 15-2-1 states: "Civil actions can only be commenced within the periods prescribed in this title after the cause of action shall have accrued...." S.D.C.L. [section] 15-2-1 (2004).

(69.) Murray, 2010 SD 18, [paragraph] 8, 779 N.W.2d at 383.

(70.) Id.

(71.) Id.[paragraph] 10.

(72.) Id. [paragraph] 14 (citing S.D.C.L. [section] 15-6-15(c) (2004)).

(73.) Id.

(74.) Id.

(75.) Murray v. Mansheim, 2010 SD 18, [paragraph] 30, 779 N.W.2d 379, 390 (Severson, J., dissenting).

(76.) See id. [paragraph] 31.

(77.) Id. [paragraph] 33.

(78.) Id. [paragraph] 36.

(79.) Id. See S.D.C.L. [section] 15-6-13(a) (2004).

(80.) Mansheim, 2010 SD 18, [paragraph] 36, 779 N.W.2d at 390.

(81.) Jensen v. Kasik, 2008 SD 113, [paragraph] 4, 758 N.W.2d 87, 88 (citing State of Minn. ex rel. Hove v. Doese, 501 N.W.2d 366, 370 (S.D. 1993)).

(82.) Moore v. Michelin Tire Co., Inc., 1999 SD 152, [paragraph] 25,603 N.W.2d 513, 521 (citing Jiricek v. Woonsocket Sch. Dist. No. 55-4, 489 N.W.2d 348, 350 (S.D. 1992)). See also Nardone v. Reynolds, 333 So.2d 25, 36 (Fla. 1976); Foremost Prop., Inc. v. Gladman, 100 So.2d 669, 672 (Fla. Dist. Ct. App. 1958).

(83.) S.D.C.L. [section] 15-2-14(3)(2004).

(84.) See S.D.C.L. [section] 15-6-13(a)-(b)(2004).

(85.) Staab v. Skoglund, 234 N.W.2d 45, 49 (S.D. 1975) (citing Olawsky v. Clausen, 212 N.W.2d 653, 655 (S.D. 1973)). See generally Teague I. Donahey, Antitrust Counterclaims in Patent Infringement Litigation: Clarifying the Supreme Court's Enigmatic Mercoid Decision, 81J. PAT & TRADEMARK OFF. SOC'Y 493, 499-500 (1999) (explaining the logical relationship test).

(86.) S.D.C.L. [section] 15-6-13(a) (2004).

(87.) Olawsky, 212 N.W.2d at 654 (citing 6 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE [section] 1410 (3d ed. 2010)). See also Kimberly E. O'Leary, The Inadvisability of Applying Preclusive Doctrines to Summary Evictions, 30 U. TOL. L. REV. 49, 67 (1998).

(88.) Olawsky, 212 N.W.2d 653, 654.

(89.) Ainsworth v. First Bank of S.D., 420 N.W.2d 32, 34 (S.D. 1988) (quoting Staab, 234 N.W.2d at 50).

(90.) Id. at 35 (Wuest, C.J., dissenting).

(91.) Douglas D. McFarland, In Search of the Transaction or Occurrence: Counterclaims, 40 CREIGHTON L. REV. 699, 718 (2007) (citing 28 U.S.C. [section] 1367 (2000)). The Federal Rules of Civil Procedure's definition of a compulsory counterclaim, FED. R. CIV. P. 13(a), aligns with S.D.C.L. section 15-6-13(a). Compare FED. R. CIV. P. 13(a)(1)(A) (stating the elements of a compulsory counterclaim) with S.D.C.L. [section] 15-6-13(a) (2004) (stating the elements of a compulsory counterclaim). The Court in Moore v. New York Cotton Exchange explained a "transaction" as follows:
   [The transaction] may comprehend a series of many occurrences,
   depending not so much upon the immediateness of their connection as
   upon their logical relationship.... Essential facts alleged by
   appellant (plaintiff) enter into and constitute in part the cause
   of action set forth in the counterclaim. That they are not
   precisely identical, or that the counterclaim embraces additional
   allegations ... does not matter. To hold otherwise would be to rob
   this branch of the rule of all serviceable meaning, since the facts
   relied upon by the plaintiff rarely, if ever, are, in all
   particulars, the same as those constituting the defendant's
   counterclaim.


270 U.S. 593, 610 (1926).

(92.) Bank of Hoven v. Rausch, 449 N.W.2d 263, 266-67 (S.D. 1989). "Res judicata is premised upon two maxims: [a] person should not be twice vexed for the same cause and public policy is best served when litigation has a repose." Black Hills Jewelry Mfg. Co. v. Felco Jewel Indus., Inc., 336 N.W.2d 153, 157 (S.D. 1983) (citing Carr v. Preslar, 47 N.W.2d 497, 502-03 (S.D. 1951)).

(93.) Glover v. Krambeck, 2007 SD 11, [paragraph] 16, 727 N.W.2d 801, 805 (citing Barnes v. Matzner, 2003 SD 42, [paragraph] 16, 661 N.W.2d 372, 377) (emphasis in original). See Yoshimasa Furuta, International Parallel Litigation: Disposition of Duplicative Civil Proceedings in the United States and Japan, 5 PAC. RIM. L. & POL'Y J. 1, 6-7 (1995).

(94.) See Sioux Enter., Minnesota v. Tri-State Ref. Co., 456 N.W.2d 774, 777-78 (S.D.1990). See also Lesnik v. Pub. Indust. Corp., 144 F.2d 968, 975 (2d Cir. 1944) (stating "'the test is a query into whether the wrong sought to be redressed is the same in both actions'"); Stone v. Dep't of Aviation, 296 F. Supp. 2d 1243, 1250 (D. Colo. 2003) (holding that res judicata barred a claim that should have been brought as a counterclaim in a previous state court action) (rev'd by the Tenth Circuit on grounds that the claim was not a compulsory counterclaim (Stone v. Dep't of Aviation, 453 F.3d 1271 (10th Cir. 2006))); Glover, 2007 SD 11, [paragraph] 18, 727 N.W.2d at 805 (citing Barnes, 2003 SD 42, [paragraph] 16, 661 N.W.2d at 377).

(95.) Lesnik, 144 F.2d at 975.

(96.) See S.D.C.L. [section] 15-6-13(b) (2004).

(97.) S.D.C.L. [section] 15-6-13(b) (2004).

(98.) Baker v. Gold Seal Liquors, Inc., 417 U.S. 467, 469 n.1 (1974); FED. R. CIV. P. 13(b).

(99.) 6 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE [section] 1425 (2d ed. 1990).

(100.) See Jacobson v. Leisinger, 2008 SD 19, 746 N.W.2d 739 (holding that permissive counterclaims are subject to a statute of limitations and do not benefit from the relation-back doctrine); Carrie Cleaver et al., Survey, Survey of 1997 Nonprofit Case Law (July-December), 32 U.S.F.L. REV. 773, 793 (1998) (stating "[u]nder Rule 13 of the Federal Rules of Civil Procedure, a 'compulsory counterclaim' tolls the statute of limitations at the filing of the initial complaint, but a 'permissive counterclaim' tolls the limitations period when it is filed and served"). See also Bonilla v. Trebol Motors Corp., 913 F. Supp. 655, 660 (D. Puerto Rico 1995) (explaining that "[i]n general, the institution of plaintiffs suit would toll the statute of limitations for a compulsory counterclaim, but not for a permissive counterclaim") (internal citations omitted); Callaway Land & Cattle Co., Inc. v. Banyon Lakes C. Corp., 831 So.2d 204, 207 (Fla. Dist. Ct. App. 2002) (finding that permissive counterclaims are subject to applicable statute of limitations); Stein v. Feingold, 629 So.2d 998, 999 (Fla. Dist. Ct. App. 1993) (discussing that tolling of statute of limitations is only permissible for compulsory counterclaims).

(101.) See supra Part II.B.

(102.) S.D.C.L. [section] 15-1-1(1) (2004).

(103.) S.D.C.L. [section] 15-2-1 (2004).

(104.) See, e.g., S.D.C.L. [section] 15-2-14 (2004) (explaining the time to bring an action against law enforcement; for statutory penalty or forfeiture; or personal injury); S.D.C.L. [section] 15-2-14.1 (2004) (stating the time to bring a medical malpractice action); S.D.C.L. [section] 15-2-14.2 (2004) (explaining the time to bring a legal malpractice action); S.D.C.L. [section] 15-2-14.3 (2004) (explaining the time to bring an action against a professional corporation); S.D.C.L. [section] 15-2-14.4 (2004) (stating the time to bring an action against a licensed public accountant); S.D.C.L. [section] 15-2-14.5 (2004) (explaining time to bring an action against a veterinarian); S.D.C.L. [section] 15-2-14.6 (2004) (stating the time to bring an action against real estate licensees, agents, and employees); and S.D.C.L. [section] 15-2-14.7 (2004) (explaining the time to bring an action against a real estate broker). "The relevant limitations period for a personal injury case stemming from an automobile accident is 'three years after the cause of action shall have accrued.'" Jensen v. Kasik, 2008 SD 113, [paragraph] 5, 758 N.W.2d 87, 88 (citing S.D.C.L. [section] 15-2-14 (2004)).

(105.) See Discover Bank v. Stanley, 2008 SD 111,757 N.W.2d 756; People ex rel. K.D., 2001 SD 77, [paragraph] 7, 630 N.W.2d 492, 494.

(106.) Discover Bank, 2008 SD 111, [paragraph] 15, 757 N.W.2d at 761(citing Martinmaas v. Engelmann, 2000 SD 85, [paragraph] 49, 612 N.W.2d 600, 611).

(107.) Hagemann ex rel. Estate of Hagemann v. N.J.S. Eng'g, Inc., 2001 SD 102, [paragraph] 8 n.7, 632 N.W.2d 840, 846 n.7.

(108.) St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 791 (1981) (Stevens, J., concurring); Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184 n.29 (1978); Fin-Ag, Inc. v. Cimpl's, Inc., 2008 SD 47, [paragraph] 72, 754 N.W.2d 1, 22.

(109.) Miller v. Hernandez, 520 N.W.2d 266, 269 (S.D. 1994).

(110.) S.D.C.L. [section] 15-2-30 (2004).

(111.) See S.D.C.L. [section] 15-2-1 (2004); S.D.C.L. [section] 15-2-30 (2004).

(112.) Compare S.D.C.L. [section] 15-6-13(a) (2004) (explaining the elements of a compulsory counterclaim) with S.D.C.L. [section] 15-2-30 (2004) (explaining how an action is commenced by the service of summons upon a defendant).

(113.) See S.D.C.L. [section] 15-6-13(a) (2004); S.D.C.L. [section] 15-6-13(b) (2004).

(114.) Jacobson v. Leisinger, 2008 SD 19, [paragraph] 30 n.7, 746 N.W.2d 739, 747 n.7.

(115.) See Bull v. United States, 295 U.S. 247, 262 (1935).

(116.) NEB. REV. STAT. ANN. [section] 25-217 (LexisNexis 2004).

(117.) 590 N.W.2d 360 (Neb. 1999).

(118.) Becker, 590 N.W.2d at 362.

(119.) Id.

(120.) Id.

(121.) Id.

(122.) Id. at 364.

(123.) Id. at 365.

(124.) Becker, 590 N.W.2d at 365.

(125.) Compare Durant v. Murdock, 1894 WL 11955, *8 (D.C. 1894) (stating "it is not the institution of a suit, but the exhibiting of a cause of action, that determines the application of the statute of limitations") with Spartan Grain & Mill Co. v. Ayers, 581 F.2d 419, 430 (5th Cir. 1978) (observing that the view that the plaintiffs complaint tolls the statute of limitations to a compulsory counterclaim "has not been entirely accepted") and 3 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE [section] 13.11 (2d ed. 1978) (commenting that "[t]he courts are sharply split as to whether the filing of the complaint tolls the statute of limitations governing a compulsory counterclaim based on federal law").

(126.) FED. R. CIV. P. 15(c).

(127.) FED. R. CIV. P. 15(c).

(128.) Burlington Indus. v. Milliken & Co., 690 F.2d 380, 389 (4th Cir. 1982) (stating "Rule 13(a) contains no mention of relation back. Nonetheless, the better view holds that 'the institution of plaintiffs suit tolls or suspends the running of the statute of limitations governing a compulsory counterclaim.'"); Canned Foods, Inc. v. United States, 140 F. Supp. 771, 772 (Ct. Cl. 1956) (holding that the statute of limitations is tolled for a compulsory counterclaim).

(129.) Aramony v. United Way of Am., 969 F. Supp. 226, 231 (S.D.N.Y. 1997) (stating "a counterclaim tolls its limitations period at the filing of the initial complaint if it is compulsory, but not until the service of the counterclaim if it is permissive") (citations omitted); MacDonald v. Riggs, 166 P.3d 12, 18 (Alaska 2007) (stating that the counterclaim is compulsory and relates back "if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim") (citation omitted); Domke v. Alyeska Pipeline Serv. Co., 137 P.3d 295, 301 (Alaska 2006) (citing ALASKA R. Cir. P. 13(a), (b) and 15(c)).

(130.) MacDonald, 166 P.3d at 17-18.

(131.) Jones v. Mortimer, 170 P.2d 893, 897 (Cal. 1946).

(132.) Denton v. Detweiler, 282 P. 82, 84 (Idaho 1929).

(133.) Armstrong v. Logsdon, 469 S.W.2d 342, 243-44 (Ky. 1971).

(134.) See In re Gardner, 202 S.E.2d 318, 323-24 (N.C. Ct. App. 1974) (citing Brumble v. Brown, 71 N.C. 513 (N.C. 1874)).

(135.) Eagle Sav. & Loan Ass'n v. West, 50 N.E.2d 352, 357 (Ohio Ct. App. 1942).

(136.) Religious Tech. Ctr. v. Scott, Nos. 94-55781, 94-55920, 1996 WL 171443, *8 (9th Cir. 1996); Employers Ins. of Wausau v. United States, 764 F.2d 1572, 1576 (Fed. Cir. 1985); Burlington Indus. v. Milliken & Co., 690 F.2d 380, 389 (4th Cir. 1982); Canned Foods, Inc. v. United States, 140 F. Supp. 771, 772 (Ct. Cl. 1956). See also Cleaver, supra note 100, at 793.

(137.) Durant v. Murdock, 1894 WL 11955, at *5 (D.C. 1894).

(138.) Id.

(139.) Id.

(140.) Id.

(141.) Id.

(142.) McClure v. McClure, 1855 WL 6997, at *1 (Pa. 1855); King's Ex'r v. Coulter's Ex'r, 1853 WL 6180, at *1 (Pa. 1853); Gilmore v. Reed, 1874 WL 13228, at *1 (Pa. 1874).

(143.) Webster v. Byrnes, 1870 WL 3932, at *3 (Md. 1870); Sprogle v. Allen, 1873 WL 5688, at *2 (Md. 1873).

(144.) Durant, 1894 WL 11955, at *7. The court also noted that in the D.C. district "the period of limitations is not determined by the date of the filing of the bill, but the time when they are exhibited in the suit." Id. (citing Gillespie v. Creswell, 1841 WL 1968, at *1 (Md. 1841); McDowell v. Goldsmith, 1866 WL 2699, at *7 (Md. 1866)).

(145.) Durant, 1894 WL 11955, at *8.

(146.) 216 F.3d 380 (4th Cir. 2000).

(147.) Id. at 382.

(148.) Id.

(149.) Id.

(150.) Id.

(151.) Id.

(152.) Kirkpatrick, 216 F.3d at 382.

(153.) Id.

(154.) Id.

(155.) Id. at 382-83.

(156.) FED. R. CIV. P. 13(a).

(157.) Kirkpatrick, 216 F.3d at 382-83.

(158.) Id. at 383.

(159.) Id. at 387. The statute itself gives an explicit right to a party who has exhausted their administrative remedies to bring a civil action. Id. at 384 (citing 20 U.S.C. [section] 1415(i)(2)(A) (2006)). "Pursuant to Rule 13(a) of the Federal Rules of Civil Procedure, the Board's counterclaim was compulsory because it arises from the same administrative hearing and review officer's decision, involves the same child and school district, and evokes consideration of the same law." Id. at 387-88. The court held that because the Kirkpatricks' IDEA action was timely filed, the Board's counterclaim related back to the date of the original complaint, and was not barred regardless of the length of the statute of limitation. Id.

(160.) See Burlington Indus. v. Milliken & Co., 690 F.2d 380, 389 (4th Cir. 1982) (holding that "the institution of plaintiffs suit tolls or suspends the running of the statute of limitations governing a compulsory counterclaim").

(161.) MacDonald v. Riggs, 166 P.3d 12 (Alaska 2007).

(162.) Id.

(163.) Id. at 17-18 (citing 6 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE [section] 1419 (2d ed. 1990)).

(164.) Id. at 18. See A. Graham Allen, Logic and the Law: When Their Paths Diverge, Ten Instances in which Judicial Interpretations in Matters of Evidence and Procedure Seemingly Run Counter to Logic, 76 FLA. B.J. 20, 26 (2002) (citing Allie v. Ionata, 503 So. 2d 1237, 1240 (Fla. 1987)).

(165.) Id.

(166.) Chauffeurs, Teamsters, Warehousemen & Helpers, Local Union No. 135 v. Jefferson Trucking Co., Inc., 628 F.2d 1023 (7th Cir. 1980).

(167.) Id.

(168.) Id. at 1024.

(169.) Id.

(170.) Id. at 1024-25. See IND. CODE ANN. [section] 34-57-2-13(b) (LexisNexis2008). "An application under this section shall be made within ninety (90) days after the mailing of a copy of the award to the applicant, except that, if predicated upon corruption or fraud or other undue means, it shall be made within ninety (90) days after such grounds are known or should have been known." Id. The plaintiff also moved to strike the affirmative defenses. Chauffeurs, 628 F.2d at 1024-25.

(171.) Chauffeurs, Teamsters, Warehousemen & Helpers Local Union No. 135 v. Jefferson Trucking Co., Inc., 473 F. Supp. 1255 (S.D. Ind. 1979).

(172.) Chauffeurs, 628 F.2d at 1026. See 29 U.S.C.A. [section] 185(a) (1998) (stating that suits brought for violations of the collective bargaining agreement between an employer and union may be instituted in any United States District Court having jurisdiction of the parties).

(173.) Chauffeurs, 628 F.2d at 1026 (citing UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 704-705 (1966)).

(174.) Id. at 1026-27 (citing IND. CODE ANN. [section] 34-4-2-12 (repealed 1998)). The author found that the entire section of Article 4 was repealed and reorganized into one comprehensive statute. See IND. CODE ANN. [section] 34-57-2-13(b) (LexisNexis2008). "Section 34-4-2-13 prescribes a ninety day time limit for the filing of a motion to vacate, and the same time limit is imposed by Section 34-4-2-14 on the motion to modify or correct an arbitration award." Chauffeurs, 628 F.2d at 1026 (relying upon IND. CODE ANN. section 34-4-2-13 (repealed 1998) and IND. CODE ANN. section 34-4-2-14 (repealed 1998)).

(175.) Chauffeurs, 628 F.2d at 1026.

(176.) Id. at 1028.

(177.) See Bull v. United States, 295 U.S. 247, 262 (1935); David G. Epstein & Jonathan A. Nockels, Recoupment: Apples, Oranges and Fruit Basket Turnover, 58 SMU L. REV. 51, 58 (2005) (discussing the ability for recoupment to be asserted in lieu of a time-barred counterclaim).

(178.) Bull, 295 U.S. at 262.

(179.) See id. See, e.g., Berger v. City of North Miami, Fla., 820 F. Supp. 989, 991-92 (E.D. Va. 1993); Katskee v. Nevada Bob's Golf of Nebraska, 472 N.W.2d 372, 377 (Neb. 1991).

(180.) Ed Miller & Sons Inc. v. Earl, 502 N.W.2d 444, 452 (Neb. 1993).

(181.) Id.

(182.) Id. at 449, 452 (stating that plaintiff filed petition in December 1989 and defendant filed a counterclaim, alleging misrepresentation, of which he was aware of in 1984, and had subsequently been barred by the four year statute of limitations).

(183.) Id. at 452.

(184.) See generally id. (discussing a counterclaim's shortcomings when barred by the statute of limitations prior to an initial action commencing).

(185.) Murray v. Mansheim, 2010 SD 18, 779 N.W.2d 379.

(186.) Id. [paragraph] 6.

(187.) Id. [paragraph] 11.

(188.) Id. [paragraph] 13.

(189.) See Appellant's Brief, supra note 25, at 1,4; Reply Brief, supra note 57, at 5.

(190.) See Discover Bank v. Stanley, 2008 SD 111, [paragraph] 15,757 N.W.2d 756, 761 (citing Martinmaas v. Engelmann, 2000 SD 85, [paragraph] 49, 612 N.W.2d 600, 611).

(191.) Murray, 2010 SD 18, [paragraph] 9, 779 N.W.2d at 383 (citing Jacobson v. Leisinger, 2008 SD 19, [paragraph] 30 n.7, 747 N.W.2d 739, 747 n.7).

(192.) See id. [paragraph] 21.

(193.) See id. [paragraph] [paragraph] 7-9, 14.

(194.) See S.D.C.L. [section] 15-6-15(c) (2004).

(195.) See generally Murray, 2010 SD 18, 779 N.W.2d 379 (holding that a compulsory counterclaim, viable at the original petition's inception is barred by the statute of limitations).

(196.) Discover Bank v. Stanley, 2008 SD 111, [paragraph] 15, 757 N.W.2d 756, 761 (citing Martinmaas v. Engelmann, 2000 SD 85, [paragraph] 49, 612 N.W.2d 600, 611).

(197.) Id.

(198.) Murray, 2010 SD 18, [paragraph] 7, 779 N.W.2d at 382-83. "[I]t would appear that limitation laws should not bar counterclaims." Id.

(199.) See Murray, 2010 SD 18, 779 N.W.2d 379.

(200.) See Appellant's Brief, supra note 25, at 9.

(201.) Discover Bank, 2008 SD 111, [paragraph] 15,757 N.W.2d at 761 (citing Martinmaas, 2000 SD 85, [paragraph] 49, 612 N.W.2d at 611).

(202.) Id.; People ex tel. K.D., 2001 SD 77, [paragraph] 7, 630 N.W.2d 492, 494 (internal citations omitted). See St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 791 (1981) (Stevens, J., concurring); Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 n.29 (1978).

(203.) See S.D.C.L. [section] 15-2-30 (2004); S.D.C.L. [section] 15-2-1 (2004); S.D.C.L. [section] 15-6-13(a) (2004).

(204.) Murray, 2010 SD 18, [paragraph] 7, 779 N.W.2d at 382.

(205.) Id. [paragraph] 7 (citing City of Sioux Falls v. Ewoldt, 1997 SD 106, [paragraph] 17, 568 N.W.2d 764, 768). See generally Appellant's Brief, supra note 25; Reply Brief, supra note 57.

(206.) See S.D.C.L. [section] 15-1-1 (2004).

(207.) S.D.C.L. [section] 15-2-1 (2004) (emphasis added in original); S.D.C.L. [section] 15-2-14 (2004). In a footnote, the South Dakota Supreme Court explained their fear of parsing together the language of S.D.C.L. sections 15-2-1 and 15-2-14.1 to hold counterclaims as "claims" instead of "actions." Murray, 2010 SD 18, [paragraph] 8 n.l, 779 N.W.2d at 382 n.1. Since only "commenced actions" are subject to a statute of limitations, a "claim" would circumvent the imposition. Id.

(208.) S.D.C.L. [section] 15-2-30 (2004).

(209.) Compare S.D.C.L. [section] 15-2-30 (2004) (explaining how an action is commenced by the service of summons upon a defendant) with S.D.C.L. [section] 15-6-13(a) (2004) (stating the elements of a compulsory counterclaim).

(210.) See S.D.C.L. [section] 15-6-13(a)(2004).

(211.) Murray v. Mansheim, 2010 SD 18, [paragraph] 33,779 N.W.2d 379, 391 (Severson, J., dissenting). See S.D.C.L. [section] 15-2-30 (2004).

(212.) See S.D.C.L. [section] 15-2-1 (2004).

(213.) See S.D.C.L. [section] 15-6-13(a); Becker v. Hobbs, 590 N.W.2d 360, 365 (Neb. 1999).

(214.) Murray, 2010 SD 18, [paragraph] 23, 779 N.W.2d at 389. See S.D.C.L. [section] 15-2-1 (2004).

(215.) See, e.g., Becker, 590 N.W.2d 360.

(216.) Id.

(217.) Jacobson v. Leisinger, 2008 SD 19, [paragraph] 30 n.7, 747 N.W.2d 739, 747 n.7.

(218.) Id.

(219.) Compare S.D.C.L. [section] 15-6-13(a) (2004) (stating the elements of a compulsory counterclaim) with S.D.C.L. [section] 15-6-13(b) (2004) (stating the elements of a permissive counterclaim).

(220.) Jacobson, 2008 SD 19, [paragraph] 30 n.7, 747 N.W.2d at 747 n.7 (citing 6 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE [section] 1425 (2d ed. 1990)).

(221.) Id. The Wright & Miller standard is recognized by many courts as the majority view. See Aramony v. United Way of Am., 969 F. Supp. 226, 231 (S.D.N.Y. 1997); MacDonald v. Riggs, 166 P.3d 12, 18 (Alaska 2007); Domke v. Alyeska Pipeline Serv. Co., 137 P.3d 295, 301 (Alaska 2006); Mogg v. Nat'l Bank of Alaska, 846 P.2d 806, 813-14 (Alaska 1993).

(222.) Aramony, 969 F. Supp. at 231.

(223.) MacDonald, 166 P.3d at 18.

(224.) Jacobson, 2008 SD 19, [paragraph] 30 n.7, 747 N.W.2d at 747 n.7. See Cleaver, supranote 100, at 793.

(225.) 3 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE [section] 13.93 (3d ed. 2009).

(226.) Murray v. Mansheim, 2010 SD 18, [paragraph] 13 n.4, 779 N.W.2d 379, 385 (citing Wiersma v. Maple Leaf Farms, 1996 SD 16 [paragraph] 5 n.1, 543 N.W.2d 787, 790 n.1).

(227.) Brendtro v. Nelson, 2006 SD 71, [paragraph] 19 n.5, 720 N.W.2d 670, 676 n.5 (internal citation omitted).

(228.) See Jacobson, 2008 SD 19, [paragraph] 30 n.7, 747 N.W.2d at 747 n.7 (citing 6 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE [section] 1425 (2d ed. 1990)).

(229.) See id.

(230.) Id.

(231.) Murray, 2010 SD 18, [paragraph] 2, 779 N.W.2d at 381.

(232.) Id.

(233.) See S.D.C.L. 15-6-13(a) (2004).

(234.) See Moore v. Michelin Tire Co., Inc., 1999 SD 152, [paragraph] 25,603 N.W.2d 513, 521.

(235.) See S.D.C.L. [section] 15-6-13(b) (2004); Aramony v. United Way of Am., 969 F. Supp. 226, 231 (S.D.N.Y. 1997); MacDonald v. Riggs, 166 P.3d 12, 18 (Alaska 2007). See also Bonilla v. Trebol Motors Corp., 913 F. Supp. 655, 660 (D. Puerto Rico 1995); Callaway Land & Cattle Co., Inc. v. Banyon Lakes C. Corp., 831 So.2d 204, 207 (Fla. Dist. Ct. App. 2002); Stein v. Feingold, 629 So.2d 998, 999 (Fla. Dist. Ct. App. 1993); Cleaver, supra note 100, at 793.

(236.) See Baker v. Gold Seal Liquors, Inc., 417 U.S. 467, 469 n.1 (1974).

(237.) Compare Ainsworth v. First Bank of S.D., 420 N.W.2d 32, 34 (S.D. 1988) (stating that the compulsory counterclaim's purpose is to decrease the amount of litigation and encourage efficient adjudication by preventing the relitigation of the same facts) with Moore, 1999 SD 152, [paragraph] 25, 603 N.W.2d at 521 (explaining that a statute of limitations' purpose is to prevent the bringing of stale claims and to punish litigants who do not timely file suit).

(238.) Ainsworth, 420 N.W.2d at 34.

(239.) Moore, 1999 SD 152, [paragraph] 25,603 N.W.2d at 521 (citing Jiricek v. Woonsocket Sch. Dist. No. 55-4, 489 N.W.2d 348, 350 (S.D. 1992)). See Nardone v. Reynolds, 333 So.2d 25, 36 (Fla. 1976); Foremost Prop., Inc. v. Gladman, 100 So.2d 669, 672 (Fla. Dist. Ct. App. 1958).

(240.) Jensen v. Kasik, 2008 SD 113, [paragraph] 4, 758 N.W.2d 87, 88 (citing State of Minn. ex rel. Hove v. Doese, 501 N.W.2d 366, 370 (S.D. 1993)).

(241.) 6 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE [section] 1419 (2d ed. 1990).

(242.) Murray v. Mansheim, 2010 SD 18, [paragraph] 36, 779 N.W.2d 379, 392 (Severson, J., dissenting). See S.D.C.L. [section] 15-6-13(a) (2004).

(243.) Appellant's Brief, supra note 25, at 4.

(244.) Id. at 8; Reply Brief, supra note 57, at 2; MacDonald v. Riggs, 166 P.3d 12, 18 (Alaska 2007). "Having sufficient knowledge of the facts to support a complaint and sufficient evidence to prosecute that complaint, he must be prepared to defend against any affirmative defenses arising therefrom." Allen, supra note 164, at 26.

(245.) Canned Foods, Inc. v. United States, 140 F. Supp. 771,772 (Ct. Cl. 1956).

(246.) See Appellant's Brief, supra note 25, at 7-8.

(247.) See Jensen v. Kasik, 2008 SD 113, [paragraph] 4, 758 N.W.2d 87, 88 (citing State of Minn. ex rel. Hove v. Doese, 501 N.W.2d 366, 370 (S.D. 1993)), Moore v. Michelin Tire Co., Inc., 1999 SD 152, [paragraph] 25, 603 N.W.2d 513,521; Ainsworth v. First Bank of S.D., 420 N.W.2d 32, 34 (S.D. 1988).

(248.) See Canned Foods, 140 F. Supp. at 772.

(249.) See S.D.C.L. [section] 15-6-15(c) (2004). See also Armstrong v. Logsdon, 469 S.W.2d 342, 343 (Ky. 1971).

The court in Armstrong stated:
   Statutes of limitation are statutes of repose-they are designed to
   bar stale claims. Where, as in this case, the counterclaim arises
   from the same incident as the complaint, the counterclaim is no
   more stale than the complaint. Simple justice dictates that if the
   plaintiffs are given an opportunity to present a claim for relief
   based upon a particular automobile collision, the defendant should
   not be prevented from doing so by a mere technicality.


Id.

(250.) Murray v. Mansheim, 2010 SD 18, [paragraph] 14, 779 N.W.2d 379, 385. See S.D.C.L. [section] 15-6-15(c) (2004).

(251.) Murray, 2010 SD 18, [paragraph] 14, 779 N.W.2d at 385. The court explained that S.D.C.L. section 15-6-15(c) "applies to situations where a later 'amended pleading' seeks to 'relate back' to the date of the 'original pleading' of that party, not the original pleading of a different party." Id. (emphasis in original).

(252.) Id. [paragraph] [paragraph] 7-9.

(253.) See supra Part II.F. See also S.D.C.L. [section] 15-2-1 (2004); S.D.C.L. [section] 15-2-30 (2004); S.D.C.L. [section] 15-2-14 (2004); S.D.C.L. [section] 15-6-15(c) (2004).

(254.) Murray, 2010 SD 18, [paragraph] 9 n.2, 779 N.W.2d at 382 n.2.

(255.) Compare S.D.C.L. [section] 15-6-13(a) (2004) (stating the elements of a compulsory counterclaim) with S.D.C.L. [section] 15-6-13(b) (2004) (stating the elements of a permissive counterclaim). See also O'Leary, supra note 86, at 67.

(256.) See Murray, 2010 SD 18, [paragraph] 34, 779 N.W.2d at 391-92.

(257.) Baker v. Gold Seal Liquors, Inc., 417 U.S. 467, 469 n.1 (1974); 6 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE [section] 1425 (2d ed. 1990). "A compulsory counterclaim qualifies for supplemental jurisdiction that allows a court to resolve an entire dispute between parties in one lawsuit." McFarland, supra note 91, at 718.

(258.) Lesnik v. Pub. Indus. Corp., 144 F.2d 968, 976 n. 10 (2d Cir. 1944).

(259.) Moore v. Michelin Tire Co., Inc., 1999 SD 152, [paragraph] 24, 603 N.W.2d 513,520.

(260.) Id.

(261.) See Miller v. Hernandez, 520 N.W.2d 266, 269 (S.D. 1994); Mielitz v. Schmieg, 461 N.W.2d 763, 765 (S.D. 1990).

(262.) MacDonald v. Riggs, 166 P.3d 12, 17-18 (Alaska 2007).

(263.) Jones v. Mortimer, 170 P.2d 893, 899 (Cal. 1946).

(264.) Denton v. Detweiler, 282 P. 82, 84 (Idaho 1929).

(265.) Armstrong v. Logsdon, 469 S.W.2d 342, 343-44 (Ky. 1971).

(266.) See In re Gardner, 202 S.E.2d 318, 323-24 (N.C. Ct. App. 1974) (citing Brumble v. Brown, 71 N.C. 513 (N.C. 1874)).

(267.) Eagle Say. & Loan Ass'n v. West, 50 N.E.2d 352, 357 (Ohio Ct. App. 1942).

(268.) Religious Tech. Ctr. v. Scott, Nos. 94-55781, 94-55920, 1996 WL 171433, *8 (9th Cir. 1996); Employers Ins. of Wausau v. United States, 764 F.2d 1572, 1576 (Fed. Cir. 1985); Burlington Indus. v. Milliken & Co., 690 F.2d 380, 389 (4th Cir. 1982); Canned Foods, Inc. v. United States, 140 F. Supp. 771, 772 (Ct. CI. 1956). See Cleaver, supra note 100, at 793.

(269.) See generally Kirkpatrick v. Lenoir County Bd. of Educ., 216 F.3d 380 (4th Cir. 2000) (holding that the plaintiff's appeal was an original civil action, making the defendant's response a compulsory counterclaim and it was therefore allowed to relate back to the date of the plaintiff's complaint). Also, the plaintiff is not prejudiced because notice is inherent to a compulsory counterclaim. MacDonald v. Riggs, 166 P.3d 12, 18 (Alaska 2007).

(270.) See Black Hills Jewelry Mfg. Co. v. Felco Jewel Indus., Inc., 336 N.W.2d 153, 157 (S.D. 1983).

(271.) See Glover v. Krambeck, 2007 SD 11, [paragraph][paragraph] 17-18, 727 N.W.2d 801, 805. See also Stone v. Dep't of Aviation, 296 F. Supp. 2d 1243, 1254 (D. Colo. 2003) (holding that res judicata barred a claim that should have been brought as a counterclaim in a previous state court action) (rev'd by Tenth Circuit on grounds that the claim was not a compulsory counterclaim (Stone v. Dep't of Aviation, 453 F.3d 1271 (10th Cir. 2006))).

(272.) See supra Part 11.B. and C.

(273.) See S.D.C.L. [section] 15-6-13(a) (2004). See Furuta, supra note 93, at 6-7.

(274.) See S.D.C.L. [section] 15-6-13(a) (2004).

(275.) See S.D.C.L. [section] 15-6-13(a) (2004); S.D.C.L. [section] 15-6-15(c) (2004).

(276.) See supra Part II.

(277.) See id.

(278.) See id.

(279.) Reply Brief, supra note 57, at 4.

(280.) See Appellant's Brief, supra note 25, at 10.

(281.) See Murray v. Mansheim, 2010 SD18, [paragraph] 2, 779 N.W.2d 379, 381.

(282.) See generally Ed Miller & Sons Inc. v. Earl, 502 N.W.2d 444 (Neb. 1993) (holding that the defendant could not assert his compulsory counterclaim because the statute of limitations had expired on the counterclaim's cause of action prior to the bringing of the initial complaint). See also Bull v. United States, 295 U.S. 247, 262 (1935).

(283.) See generally Ed Miller, 502 N.W.2d at 444.

(284.) Allie v. Ionata 503 So.2d 1237, 1239 (Fla. 1987) (citing Payne v. Nicholson, 131 So. 324, 326 (Fla. 1930)); Epstein, supra note 177, at 58. See Beekner v. L.P. Kaufman, Inc., 198 So. 794, 796 (Fla. 1940) (upholding the right to raise the defense of usury even though the claim of usury as an affirmative cause of action would have been barred by the statute of limitations).

(285.) See Bull, 295 U.S. at 262.

RALEIGH E. HANSMAN, J.D. Candidate, 2012, University of South Dakota School of Law. The author would like to thank Abigail Howell and Blayne Grave for their editorial guidance. Most importantly, the author would like to express her genuine appreciation to her parents for their lifelong encouragement, support, and love. The author would also like to acknowledge the support of her sister, Logan, fiance, Tom, and furry friends, Kurby and Sadie.
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