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A counterclaim that must be asserted or lost to its holder. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon the claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under Rule 13. Fed. R. Civ. P. 13(a).


Courts look to state law to determine if a claim is a compulsory counterclaim, and, if so, the effect of a failure to raise such a claim. Fox v. Maulding, 112 F.3d 453, 456 (10th Cir. 1997). Under 28 U.S.C. § 1738, the preclusive effect of a state judgment is governed ...

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