The Oklahoma Bar Journal August 2022

or indemnification claim or both. Yet it is worthy to note a recent trend surrounding contribution claims in the district courts. Under Okla. Stat. Tit. 23 §15, joint and several liability in Oklahoma was completely abolished in 2011 and liability in Oklahoma became sev eral only. Any liable party is, there fore, only liable for their pro rata share of liability, and Oklahoma district courts have concluded that contribution is, therefore, not a viable cause of action between defendants. While the Oklahoma Supreme Court has not concluded there is no viable third-party contribution claim in the state of Oklahoma, it is vital to ensure you consider this analysis when deter mining whether to initiate that third-party claim for contribution. Removal to Federal Court Transferring a case from state court to federal court is a tactical move that could prove to be ben eficial to a client. Federal courts have different procedural rules, and federal judges have more precedential authority to rely on than Oklahoma courts on many different issues. That said, remov ing a case from state court to fed eral court can be more costly than filing a motion to dismiss, and you

If there are multiple defendants, a cross-claim may be appropriate. A cross-claim is a claim against any party that is not an opposing party arising out of the transaction or occurrence that is the subject matter of the original action. 39 The most common cross-claims are derivative cross-claims, i.e., a claim for contribution or indem nification. Contribution is avail able when one or more persons become jointly or severally liable in tort for the same injury to a person or property. 40 An indem nification claim is available to one who, without fault on their own, has paid damages because of the negligence of another. 41 Third-Party Litigation Under Okla. Stat. Tit. 12 §2014, a defendant can serve a petition and summons on a non-party who is or may be liable for the plaintiff’s claim or a defendant’s counterclaim arising out of the transaction or occurrence that is the subject matter of a claim asserted against them. This can be pursued by a defendant any time after the commencement of the action or by a plaintiff any time after a counterclaim is asserted. Often, third-party claims are initiated to assert a contribution

RESPONDING TO THE PETITION

Filing a motion to dismiss can be costly for a client as it can require an attorney to expend a great deal of time researching and brief writing. Because motions to dismiss are rarely granted in Oklahoma state courts, there will often be times when a motion to dismiss is not proper and responding to the petition is the appropriate move. However, it is still not the time to rush as there are numerous considerations to be made, strategic moves that can be pursued and opportunities that can be missed. The next step should result from discussions with the client and a determina tion of the facts. Asserting a Counterclaim, Cross-Claim or Both Under the Oklahoma Pleading Code, there are two types of counterclaims: a compulsory counterclaim and a permissive counterclaim. A compulsory counterclaim is any claim against the opposing party that arises out of the transaction or occur rence that is the subject matter of the opposing party’s claims. 35 If you do not assert a compulsory counterclaim in response to the petition, it will bar a later action of that claim. 36 “The purpose of the compulsory counterclaim bar is to prevent multiplicity of litigation over related claims.” 37 A permis sive counterclaim includes any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claims. 38 Any claim that falls short of a compulsory counterclaim essentially qualifies as a permis sive counterclaim, and the failure to assert a permissive counter claim in response to a petition does not bar a later action.

Because motions to dismiss are rarely granted in Oklahoma state courts, there will often be times when a motion to dismiss is not proper and responding to the petition is the appropriate move.

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THE OKLAHOMA BAR JOURNAL