Aggregation of Claims and Parties

Question 1

Joinder of Claims

Rule 18

Answer 1

Joinder of Claims

(a) A party can join as many claims as he/she has against the opposing party

• if T/O - use it or lose it - Pavon
• if not T/O - your choice

Question 2

Counterclaims

Rule 13 (a) - Compulsory

Rule 13(b) - Permissive

Answer 2

COUNTERCLAIMS

1. (a) Compulsory: T/O that is the subject matter of the opposing party’s claim”; USE IT OR LOSE IT

2. (b) ​Permissive: unlimited scope; generally no preclusion problem.

Question 3

Crossclaims

Rule 13(g)

Answer 3

CROSS CLAIMS

Claim by a defendant against a co-defendant. Must already be a party. Rule 13(g).

Test is “same transaction or occurrence that is the subject of the original action or counterclaim or claim relates to property that is subject matter of original action”

Question 4

Real Party in Interest

Rule 17(a)

(3 elements)

Answer 4

REAL PARTY IN INTEREST

• Like standing; only the person who has the actual claim can sue
• Certain legal relationships qualify (e.g., executor, administrator, guardian, bailee)
• Person who owns the claim can ratify someone else’s ability to bring the claim (Pat Robertson)
• Naghui v. Intercontinental Hotels

Question 5

Permissive Joinder of Parties

Rule 20

(2 elements)

Answer 5

Permissive Joinder of Parties (v Mandatory, Rule 19)

(a) Who May Join or Be Joined.

π/▲:

• same T/O
• CQLF

Purposes of Permissive Joinder

1. Promote efficiency
2. Avoid multiple, duplicative, and sometimes inconsistent suits

Question 6

Misjoinder

Rule 21

(3 elements)

Answer 6

Misjoinder:

1. Court, on motion or on its own, may add or drop a party or sever claims against a party.
2. A party is misjoined when the requirements of permissive joinder are not satisfied.
3. Not grounds for dismissal.

Question 7

Guedry v. Marino

(1 main takeaway)

Answer 7

• Joinder of parties under Federal Rule of Civil Procedure 20(a) does not require that every question of law and fact be common to every party.
• T/O
• Common question of fact
• Shows how liberal joinder can be

Allowed the joinder of seven plaintiffs alleging a variety of constitutional violations by the sheriff of St. Charles Parish, Louisiana. Although an important aspect of all of the claims (excluding those of Wilson) was harassment and termination based on support of the defendant’s opponent in the election, only some of the plaintiffs claimed race discrimination. And Wilson’s claims were not similar to those of the other plaintiffs, as the court itself acknowledged.

Question 8

Rule 19

Test For Mandatory (Required) Joinder of Parties

(3 elements)

Answer 8

1. Can the court accord complete relief without the party? 19(a)(1)

• YES - joinder not mandatory >> Done
• NO - Party is necessary >> Step 2

2. Is joinder feasible? (PJ, SMJ, Venue etc.) 19(b)

• YES - party must be joined >> Done
• NO - indispensable test >> Step 3

3. Is the party indispensable?

• YES - case must be dismissed >> Done
• NO - Action may continue at court’s discretion based on:

(i) extent to which judgment in person’s absence would prejudice that person or existing parties;
(ii) extent to which prejudice can be reduced;
(iii) whether a judgment in the person’s absence would be adequate; and
(iv) whether plaintiff would have an adequate remedy if the action were dismissed.

Question 9

Temple v. Synthes Corp.

(1 main takeaway)

Answer 9

• It is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit because joint tortfeasors are merely permissive parties.

Temple had surgery in which a plate and screw device was implanted in his lower spineManufactured by Synthes; LaRocca performed surgery

Screws broke off inside Temple’s back

Sued Synthes in federal court; sued LaRocca and hospital in state court

Synthes moved to dismiss federal suit for failure to join necessary party

Supreme Court held that Synthes was not even a necessary party, let alone an indispensable party. A tortfeasor with joint and several liability is merely a permissive party.

Question 10

Kescoli v. Babbitt

(2 or so elements)

Answer 10

The court first found that the Navajo Nation and Hopi Tribe—which were not parties to the suit—were necessary because the settlement at issue impacted royalties received by them, and they had an interest in ensuring that a proper balance was maintained between the receipt of royalties and the preservation of their sacred sites. Because they were immune from suit as a result of their sovereign status, the Navajo Nation and Hopi Tribe could not be joined against their will. Finding that the action could not proceed without them, the court concluded that they were indispensable –> must dismiss

Question 11

Impleader

Rule 14

(When ▲/π)

(Policies)

(5 general elements)

Answer 11

Impleader

(a) ▲ may implead
(1) By motion and with court’s leave if 15+ days after original answer, a ▲ (3Pπ) may… sue … a nonparty who is or may be liable to it for all or part of the claim against it.
(2) The 3P▲:

(A) must assert any defense against the 3Pπ claim under Rule 12;

(B) must assert any counterclaim Rule 13a, and may assert any counterclaim Rule 13(b) or any crossclaim Rule 13(g);

(C) 3P▲ Can mirror ▲ defense in case 1

(D) may also assert against the π any claim arising out of the T/O that is the subject matter of the plaintiff’s claim against the third-party plaintiff.

(3) π can assert ▲’s claim against 3P▲ as long as T/O
(4) Any party may move to strike the third-party claim, to sever it, or to try it separately.
(5) 3P▲ can implead
(b) π may implead against counterclaims

Rule 14: a defending party may sue “a nonparty who is or may be liable to it for all or part of the claim against it.” The new party is allegedly liable to the defendant if the defendant is found liable.

A sues B, B brings in C

Policies:

1. promotes efficiency
2. prevents inconsistent verdicts

Without impleader, in A v. B, B would have to defend without the presence of C, even though C would be liable to B if B were liable to A. B would have to sue C separately, creating inefficiency. Plus, if the first jury found A’s case to have merit, the second jury could rule against B and in favor of C on the ground that A’s case lacks merits, even though A’s case was previously found to have merit.

Claim must be contingent or derivative of the main claim:

• Indemnification: Insured sued in an auto accident case may implead the insurance company that has agreed to insure against such claims
• Contribution: joint and several liability for torts (plaintiff smoked two brands of cigarettes and sued one company after developing cancer)
• Subrogation: one person stands in the shoes of another for purposes of pursuing a claim – insured party sues his insurance company for injuries suffered in a car accident; insurance company can implead the driver whose alleged negligence caused the accident
• Liability of the defendant to the plaintiff need not be the same theory as the liability of the third-party defendant to the third-party plaintiff
• Impleader is permissive: Defendant might decide to sue nonparty in another forum in a separate case

Question 12

Tiesler v. Martin Paint Stores

Answer 12

• Tiesler* is a straightforward application of Rule 14 (impleader)
• Joint and several liability is sufficient for impleader.

A minor plaintiff who was injured by denatured alcohol sued the paint store (for failure to comply with federal labeling and packaging requirements), and the paint store claimed that, if it were held liable, it would be entitled to contribution from the other youth (the third party defendant) whose negligence (according to the paint store) allegedly caused the injuries. As this case shows, while a joint tortfeasor context does not establish a basis for Rule 19 dismissal, it does justify an impleader action at the option of the defendant.

Question 13

Intervention

Rule 24

(2 main, 5 sub-elements)

Answer 13

Intervention

(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.
(b) Permissive Intervention.
(1) In General. On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or

(B) CQLF

(2) By a Government Officer or Agency.
(3) Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.

Question 14

Johnson v. City of Dallas

Answer 14

This case takes a very narrow approach to intervention. The businesses and homeowners’ associations had an economic interest in the challenge to the city ordinances. Yet, the court denied not only intervention as of right, but also permissive intervention.

With respect to intervention as of right, the court found that the interests were too abstract and were shared by too many businesses in the community. The court also found that the movants’ interests were adequately represented by counsel for the City of Dallas.

With respect to permissive intervention, the court reiterated that the movants’ interests were adequately represented. It further found that movants’ participation would needlessly delay the case, and that the economic arguments that the movants planned to make were not legally relevant.

The court, however, allowed movants to appear as amici for the sole purpose of submitting briefs.

An amicus is not a party, but rather only a “friend” of the court; an intervener becomes a party to the case. In Johnson, the movants were only allowed (as amici) to file briefs.

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Question 15

Interpleader

Rule 22

(5 elements)

Answer 15

Interpleader

• All JD rules are liberalized (nationwide PJ)
• Rule 19 mandatory more stringent (tests)
• 2+ adverse claimants
• π/▲ may trigger interpleader if it risks being exposed to double or multiple liability; (stakeholder need not demonstrate merits, only good faith concern)
• If stakeholder doesn’t care about the property, it can be removed from the interpleader and let the others fight it out
• Equitable device that allows an individual to confront multiple claims involving a fund or piece of property in a single proceeding.
• Avoids multiple liability, inconsistent judgments, multiple lawsuits in different courts

(a) Grounds.
(1) Persons with claims that may expose a π to double or multiple liability may be joined as ▲ and required to interplead. Joinder for interpleader is proper even though:

(A) the claims of the several claimants don’t have to be identical

(B) the plaintiff denies liability in whole or in part to any or all of the claimants.

(2) A ▲ exposed to similar liability may seek interpleader through a crossclaim or counterclaim.

Question 16

6247 Atlas Corp v. Marine Ins. Co

Answer 16

This case involved an interpleader relating to insurance coverage. Atlas, the plaintiff, was a dealer who claimed that more than $6 million in jewelry and other valuables had been stolen. Various “memo holders” sought to recover for valuables consigned to Atlas. As a result, Atlas sued its insurance carriers based on its $3.1 million in coverage. The court held that the insurance defendants were entitled to interplead the various memo holders under Rule 22.

First, the insurance carriers legitimately feared multiple litigation over the $3.1 million fund. Second, absent interpleader, unnecessary duplication and waste would occur. Finally, Atlas was adverse to the memo holders, and defendants were adverse to all of the other parties because they were denying liability to Atlas and the memo holders

Question 17

Consolidation

Rule 42

(3 elements)

Answer 17

Consolidation; Separate Trials

• First consider venue and transfer motions, then removal, then consolidation
  
  • If venue/JD problems = MDL
• cases remain separate but same trial
• weak because same district required
• Malcom v National Gypsum (too many parties to try together - abuse of discretion)

(a) Consolidation. If actions before the same district involve a CQLF the court may:
(1) join for hearing or trial any or all matters at issue in the actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay (e.g. joint discovery)
(b) Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.

Test: common question of law or fact

Question 18

Malcolm v. Nat’l Gypsum Co

Answer 18

The Second Circuit held that the district court erred in consolidating for trial 48 plaintiffs claiming injuries from exposure to asbestos. The court explained that there were numerous differences among the plaintiffs (including different work sites, occupations, exposure periods, disease types, etc.), and expressed concern about the jury’s ability to sort out all of the evidence and keep track of each plaintiff’s case. The court sent a very strong message that efficiency could not be purchased at the expense of fairness to defendants. If adopted by other circuits, the Malcolm approach would clearly limit the ability of Rule 42 consolidation as an aggregation device. The dissent by Judge Walker suggests that reasonable minds can differ on the result.

Question 19

MDL

28 USC §1407

(8 elements)

Answer 19

Multi-District Litigation (MDL)

1. Pretrial purposes only
2. Includes both class actions and individual cases
3. Only applies to cases in federal court
4. Venue and personal jurisdiction rules don’t apply
5. Judge selected does not need to have any of the pending cases
6. Must be one or more CQF
7. MDL decision is made by special court – Judicial Multidistrict Litigation Panel (7 judges; none from same circuit) - Appoints ONE judge
8. Initiated by a party or MDL panel

Question 20

Breast Implant Litigation

Answer 20

Breast Implant Litigation

The MDL Panel rejected the suggested choices for judge by all parties and selected Chief Judge Sam Pointer, an experienced MDL judge and former member of the MDL Panel. Pointer apparently was not identified by any party.

Question 21

Class ASS

Rule 23

(General 3 elements)

(a) - 4 elements
(b) - 1 main element

Answer 21

Class Actions

C definable class

E judicial economy

N numberosity

C commonality

T typicallity

A adequacy

B 23(b) - class action may proceed if…

1) separate rulings risk
2) outcome applicable to all
3) common issues predominate

• Do NOT analyze PJ or SMJ
• Class action has to be superior to non class

Class Certification

1. Threshold Requirements
   a. Definable class (for notice, distribution of claims)
   i. Objective
   ii. (some courts) Ascertainability
   b. A representative who is a member of the class
   c. Claim that is not moot (Rocky)
2. Rule 23(a) requirements (must satisfy all four)
   a. Numerosity - lots of people (30+)
   b. Commonality - CQLF
   c. Typicality - Rep is typical of the class
   d. Adequacy of representation both
   i. Representative
   ii. Counsel
3. Rule 23(b) - if 23(a) met then class action can be maintained if:
   (1) separate actions would risk

(A) inconsistent rulings

(B) individual rulings would be dispositive to other members

(2) Party opposing’s actions apply to all members to that outcome would be applicable to all
(3) (catchall – usually for damages): common issues predominate over individual issues and a class action is superior to other ways of resolving the

Question 22

Rocky v. King

Answer 22

Mootness

The problem in the case was that Rocky was removed from field work—the subject of his complaint—about a month before moving for class certification. The court held that Rocky’s case—which sought only declaratory and injunctive relief—had become moot.

If he would have gone for $ damages he could have proceeded :(

Question 23

Marcus v. BMW

Answer 23

Claim that Bridgestone run-flats are defective; Marcus’s class involved BMWs with Bridgestone RFTs sold or leased in New Jersey where tires have gone flat and have been replaced. Marcus is NY resident; leased 2007 BMW; had four flat tires that failed but in two instances he ran over sharp objects

NJ district court granted class cert for NJ subclass for various claims.

Standard: class cert – abuse of discretion.

Class Definition (objective): Must be clear and concise definition of parameters of the class.

• Here, Marcus says intent was to include only owners and lessees of new BMWs purchased or leased in NJ from BMW dealerships with Bridgestone RFTs. But post hoc clarification is not sufficient.

Class Definition (ascertainability): Must be able to identify class members without individual fact finding or mini trials.

• Here BMW doesn’t know which cars it sold had run flat tires; even if a particular car came to the lot with RFT, may have left with different tires; and not clear which ones had gone flat and been replaced.
• Need reliable, administratively feasible approach. Court allows Marcus to address the issue further on remand. Court suggests a due process concern about using affidavits from putative class members.

Numerosity: so numerous that joinder is impracticable

• No evidence of how many BMWs purchased or leased in NJ with Bridgestone RFTs have gone flat and been replaced. Thus, numerosity is not satisfied.

Commonality:

Common issues of law and fact exist: whether the tires are defective, duty to disclose defects, common claims.

Typicality: Met here

Plaintiff’s claims must arise from same event, practice or course of conduct giving rise to the claims

• Marcus supposedly did little research before buying car but that doesn’t make him atypical; not a problem that Marcus leased only one model BMW with only one kind of RFT; unclear how Marcus’s issues will constitute major focus of litigation (unique defenses); neither side has shown how any defenses unique to Marcus will be major focus of BWM and Bridgestone.

Predominance: Causation concerns – a tire can go flat for a variety of reasons;

• illustrative is Marcus’s own experience; two of the tires would have been damaged under the circumstances even if they were not RFT

Question 24

Black v. Rhone Poulenc

Answer 24

Black focuses on the requirement of vigorous representation where class representatives were unprepared and did not understand their roles or the allegations in the case. Instead of dismissing the representatives, the court put the burden on class counsel to get them up to speed.

• set up sanctions if counsel didn’t fix

Question 25

Kaplan v. Pomerantz

Answer 25

The falsehoods in the case involved

(i) plaintiff’s involvement in other lawsuits and
(ii) his wife’s ownership of other stocks.

The court acknowledged that the issues were of “marginal relevance” to the suit, but dismissed the representative and class counsel for lack of integrity.

Question 26

In re: NFL Concussion Litigation

Answer 26

Class Settlements

For purposes of our class, the key Girsh factors focus on

(1) reasonableness of the settlement amount given the risks and likely duration of litigation;
(2) whether the parties had adequate opportunity to investigate the claims.

The settlement provided uncapped monetary compensation for retired NFL players with certain cognitive conditions (diagnosed currently or over the next several decades), a baseline assessment program for all class members, and a fund to educate football players on how to prevent injury. After finding that class certification was proper, the Third Circuit agreed with the district court that the settlement was fair, reasonable, and adequate.

Initially, the court emphasized that there is a presumption of fairness in settlements where, like here, certain elements are met: arms-length negotiations, sufficient discovery, settlement proponents with experience in similar litigation, and objections from only a small fraction of the class.

The court then provided a detailed fairness analysis using the nine Girsh factors. The analysis largely tracked the district court’s analysis in previously approving the settlement. Both courts also focused on whether the settlement’s treatment of CTE was fair. The court found that it was reasonable to limit the death with CTE condition to only a small subset of class members who were diagnosed with CTE prior to the district court’s final settlement approval. As to the other class members, the court emphasized that because the cognitive symptoms of CTE correlated with other compensable conditions, those with CTE would likely be compensated under a different qualifying diagnosis.

Question 27

Statutory Interpleader

28 USC §1335

(4 elements)

Answer 27

(Statutory Interpleader):

• enables a party with money or property of value of $500 or more to invoke interpleader when
• two or more adverse claimants,
• of diverse citizenship,
• are claiming or may claim to be entitled to such property and the
• π has deposited such money or property with the court.

Tradeoff: relaxed diversity v. deposit stake with court.

Question 28

Aggregation types

Answer 28

1. Permissive Joinder: of π/▲(Rule 19)
2. Mandatory Joinder: (Rule 19)
3. Impleader: A v B –> (B brings C) (Rule 14)
4. Intervention: A v B (C wants to join) (Rule 24)
5. Interpleader: (Rule 22)

Question 29

Counerclaims

(2 elements)

Answer 29

Rule 13(a)

• compulsory = T/O
  
  • use it or lose it
  • for protection of π

Rule 13(b)

• permissive = your choice

Question 30

Cross-claims

(2 elements)

Answer 30

Rule 13(g)

• always permissive
• π v ▲1, ▲2
  
  • ▲1 sues ▲24
• T/O