Chapter 4

Question 1

parties to an action

Answer 1

parties to an action

Question 2

partnership

Answer 2

made up of two or more individuals who carry on a business and divide any profit or loss of the business. This is because the partnership has an existence separate from the existence of its partners.

Question 3

unincorporated association

Answer 3

is made up of individual members who operate under a common name, such as social organizations, churches, and homeowners’ groups. As with partnerships, the association may sue or be sued in the name of the association.

Question 4

sole proprietorships

Answer 4

(which are entities consisting of just one person), and unincorporated associations, in addition to naming the entity as a party, it is good practice to also name the individual members that are known. In this way, any judgment will be binding on the individual members as well as on the entity.

Question 5

corporation

Answer 5

is made up of its shareholders who own the entity. However, unless the shareholders have not kept the existence of the corporation separate and distinct from their individual affairs, the shareholders are not liable for the obligations

Question 6

Federal Rules of Civil Procedure Rule 17(a)

Answer 6

(a) Real Party In Interest.

(1) Designation in General. An action must be prosecuted in the name of the real party in interest. The following may sue in their own names without joining the person for whose benefit the action is brought:

(A) an executor;

(B) an administrator;

(C) a guardian;

(D) a bailee;

(E) a trustee of an express trust;

(F) a party with whom or in whose name a contract has been made for another’s benefit; and

(G) a party authorized by statute.

Question 7

assignment

Answer 7

which is a claim that has been transferred to another person or entity, the assignee is the real party in interest and has a right to sue in the assignee’s own name. If the claim has been only partially assigned, however, then the assignee must join the assignor as a party to the lawsuit. This prevents the defendant from being harassed by multiple lawsuits

Question 8

Subrogation

Answer 8

occurs when one party becomes obligated to pay for the loss sustained by another. In such a case, the one obligated to pay for the loss becomes subrogated to the rights of the other to collect against the person who caused the loss. For example, in an automobile accident, if the insurance company pays for the loss by its insured, the insurance company is the real party in interest and becomes subrogated to the rights of the insured to collect against the defendant. Thus, in the area of subrogation, the real party in interest will be the one paying for the loss.

Question 9

Capacity to sue

Answer 9

lawsuit must be brought by and against parties that have a legal capacity to sue or defend the action. That means the person who has both the ability and the right to file the action.

This includes natural persons and corporations, partnerships, and unincorporated associations. However, there are a few instances when the capacity to sue or defend may be raised. For example, under Rule 17(c) an infant or someone who is mentally incompetent can sue or be sued in the name of a representative. If no representative has been appointed, a guardian ad litem can bring suit or be appointed for the sued party. In addition, suspended corporations — corporations not properly qualified to do business in the state — may be unable to either sue in court or defend an action brought against it.

Question 10

Guardian ad litem

Answer 10

A person appointed by the court to represent another, usually a minor or incompetent, in a lawsuit

Question 11

Federal Rules of Civil Procedure Rule 17(b) and 17(c)

Answer 11

(b) Capacity to Sue or Be Sued. Capacity to sue or be sued is determined as follows:

(1) for an individual who is not acting in a representative capacity, by the law of the individual’s domicile;

(2) for a corporation, by the law under which it was organized; and

(3) for all other parties, by the law of the state where the court is located, except that:

(A) a partnership or other unincorporated association with no such capacity under that state’s law may sue or be sued in its common name to enforce a substantive right existing under the United States Constitution or laws; and

(B) 28 U.S.C. §§754 and 959(a) govern the capacity of a receiver appointed by a United States court to sue or be sued in a United States court.

(c) Minor or Incompetent Person.

(1) With a Representative. The following representatives may sue or defend on behalf of a minor or an incompetent person:

(A) a general guardian;

(B) a committee;

(C) a conservator; or

(D) a like fiduciary.

Question 12

Joinder of parties

Answer 12

The bringing together of different parties in one lawsuit

Question 13

Intervention

Answer 13

The ability of a person not a party to the lawsuit to become a party to the lawsuit when such person has an interest in the outcome of the lawsuit

Question 14

Federal Rules of Civil Procedure Rule 20(a)

Answer 14

a) Persons Who May Join or Be Joined.

(1) Plaintiffs. Persons may join in one action as plaintiffs if:

(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all plaintiffs will arise in the action.

(2) Defendants. Persons — as well as a vessel, cargo, or other property subject to admiralty process in rem — may be joined in one action as defendants if:

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in the action.

Question 15

in adjoining multiple parties, however, permissive joinder often can operate to delay the litigation and make it unfairly expensive and burdensome on certain parties

Answer 15

For that reason, Rule 20(b) gives the court broad regulatory powers, including the power to order separate trials to prevent any unfairness and delay

Question 16

improper joinder

Answer 16

Rule 21 provides that this is not a ground for dismissing the action. Rather, the misjoined parties can be dropped and nonjoined parties that should be added can be added by court order.

Question 17

Required and permissive joinder rules, set forth in Rules 19 and 20, are not the only rules that regulate whether or not parties can be joined in a lawsuit.

Answer 17

There are several pleading rules that govern a number of special types of actions. These are:

Counterclaims — Rule 13

Cross-claims — Rule 13

Third-Party Practice — Rule 14

Interpleader — Rule 22

Intervention — Rule 24

Class actions — Rule 23

Shareholder derivative suits — Rule 23.1

Question 18

Joinder of claims

Answer 18

The bringing together, in one lawsuit, of the different claims that a party may have against another part

Question 19

Subject matter jurisdiction

Answer 19

the power of a court to hear particular matters. Federal district courts are courts of limited jurisdiction and cannot hear a case unless it falls within their power

Question 20

Rule 12

Answer 20

Lack of subject matter jurisdiction is most commonly raised by a Rule 12 motion to dismiss; however, it also can be raised at any time, even after judgment or on appeal

Question 21

Standing

Answer 21

The right of a person to challenge in court the conduct of another.

In private litigation, ordinarily there will be an obvious controversy, with the parties having obvious standing. In public interest litigation, on the contrary, the issue of actual case or controversy as well as the issue of standing are both common and complex

Question 22

Pendent jurisdiction

Answer 22

Jurisdiction by the federal court over nonfederal claims when both the federal and nonfederal claims derive from a common set of facts

if the nonfederal claims are based on the same set of facts as the federal claims, joinder of the claims is proper, although the court retains discretion to reject the pendent claim.

Question 23

Sovereign immunity

Answer 23

is the insulation of the government from being sued when functioning in an official government capacity. A plaintiff suing the United States, therefore, must expressly demonstrate the statutory basis under which the government has consented to be sued.

Question 24

diversity jurisdiction

Answer 24

28U.S.C. §1332 provides for the jurisdiction of federal courts in civil actions involving diversity of citizenship, and parallels the constitutional grant of power found in Article III, §2 of the Constitution

Question 25

diversity jurisdiction requirements

Answer 25

Citizenship

Complete diversity

Jurisdictional amount

Question 26

If all of these three requirements are met, the complaint may be filed in federal court.

Answer 26

Citizenship” requirement: the citizenship of natural persons is the state of permanent residence (called domicile), and no person can have more than one domicile at a time.

For a corporation, §1332(c) provides that its citizenship is both the state where it is incorporated and the state where it has its principal place of business.

Complete diversity requirement: means that each plaintiff must have a different state citizenship from each defendant in order for the federal district courts to have jurisdiction. Stated another way, if any plaintiff and any defendant are citizens of the same state, diversity will not be complete.

Complete diversity is determined according to the citizenship of parties at the time the initial complaint was filed. Later changes in citizenship by a party will not defeat jurisdiction.

Jurisdictional amount requirement: Section1332(a) requires that the “matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” The plaintiff’s complaint is the sole basis for determining if the requirement has been met.

Question 27

ancillary jurisdiction

Answer 27

arises whenever a plaintiff has a proper claim and another party wishes to file a counterclaim, cross-claim, or third-party complaint, but the latter claim does not have an independent jurisdictional basis.

The concept of ancillary jurisdiction is important because it permits certain types of pleadings involving claims that do not have an independent basis for federal jurisdiction. These include compulsory counterclaims, cross-claims, interpleader, intervention of right, and impleader

Question 28

Personal jurisdiction

Answer 28

refers to the power of a court to bring a party before it. A judgment is not enforceable against a party unless that party can lawfully be brought into court and has received notice of the lawsuit.

Question 29

In personam jurisdiction

Answer 29

refers to the court’s power to personally bind the parties to the court’s judgment. This jurisdiction can be either general or specific

If a court has general jurisdiction over a defendant, the defendant can be sued on any matter.

For example, if a defendant in a breach of contract action resides within the state in which the action is brought, the court has jurisdiction over the defendant to personally bind the defendant to any judgment that is rendered against him.

If the jurisdiction is specific, it means that the defendant’s contacts are not sufficient and pervasive enough to be sued on all matters in the forum state. Rather, the claim must arise out of specific contacts that the defendant has in the forum state. For example, a situation in which a defendant lives in another state but comes to the forum state to sell his goods and enters into a contract with the plaintiff in the forum state allows the court to exercise specific jurisdiction over the defendant for any claim concerning the contract or the sale of the good

Question 30

in rem

Answer 30

one that involves property (the res) located within the state in which the court sits and in which the parties have their dispute. Jurisdiction over the party exists by virtue of the party’s ownership of the property. With in rem jurisdiction, the court decides rights in the property, and that determination is then binding on any party

Question 31

quasi in rem

Answer 31

Finally, it is a type of jurisdiction that allows a plaintiff to use the property of the defendant to satisfy a claim so long as the property is in the state. Thus, even if the defendant is not in the state and there is no in personam jurisdiction over the defendant, jurisdiction can still be obtained over the property. Only the property, however, may be used to satisfy the claim. If the property is not sufficient to satisfy the claim, the plaintiff may not try to enforce the balance of the claim or subsequent judgment against the defendant since the court does not have in personam jurisdiction against the defendant.

Question 32

differences between federal and state courts

Answer 32

s the time it takes to get to trial. As a general rule, the length of time between the filing of a complaint in federal court and trial is much shorter than if the same case were filed in state court. Some state courts may take up to five years from the filing of a complaint to the time of trial; in federal court, the time to trial may be as short as six months.

Another potential advantage of filing in federal court is that one judge and usually a magistrate are assigned to hear all aspects of the case. In contrast, in many state courts, a different judge will hear law and motion matters, discovery disputes, and the trial. Thus, a federal judge is able to quickly become familiar with the facts of each case and may be able to move the case along to a more rapid conclusion.

Many times, the procedural and evidentiary rules in federal court are more stringent than in state court. Moreover, federal courts are generally considered to be more formal and technical than state courts

Question 33

Personal jurisdiction must meet

Answer 33

due process: is a constitutional doctrine requiring fairness in judicial proceedings. Due process issues do not arise for plaintiffs, since by initiating suit a plaintiff is considered to have voluntarily submitted to the court’s jurisdiction for all purposes, including being required to respond to counterclaims and other claims brought in that action

service-of-process requirements refer to the actual delivery of the legal document (usually the initial summons and complaint) to the defendant. It is important to keep in mind that jurisdiction over the party is different from, and independent of, the adequacy of service of process. If a party is not constitutionally amenable to process, any service on that party will have no effect unless the party waives objections to the service. If a party is amenable to process, service of process on that party must still be properly made

Question 34

Service-of-process requirements

Answer 34

Long-arm statutes

State laws that enable a court to exercise jurisdiction over a defendant who is outside the geographical boundaries of the cour

Question 35

Due process requirements

Answer 35

When a defendant is a resident of the forum state — that is, the state in which the action is brought — due process problems do not arise. Since the defendant is a resident of the state, it is fair to require the defendant to defend against an action brought in the state.

When a nonresident defendant, however, is sued in the forum state and does not consent to the jurisdiction of the court, due process problems may prevent that defendant from being required to defend in the forum state.

Question 36

Venue

Answer 36

can be changed by the defendant only if the venue chosen by the plaintiff is improper or inconvenient.