Civ Pro Flashcards
1
Q
Legal Sufficiency
A
Plaintiff has said enough in their complaint. If the court assumes everything pled is true, then Plaintiff will win.
2
Q
Legal Insufficiency
A
Even if we took everything Plaintiff said to be true, they still would not be entitled to review.
Ex: Plaintiff leaves out an element of the claim
3
Q
Factual Sufficiency
A
When all the elements of the claim are alleged, are there enough factual details in the complaint to proceed with litigation
4
Q
Conley v. Gibson
A
A complaint should not be dismissed for failure to state a claim unless it is apparent Plaintiff cannot prove a set of facts. (no set of facts standard)
5
Q
Rule 8(a)
A
General Rules of Pleading
1) a statement of the grounds of subject matter jurisdiction
2) a “short and plaint statement” of the claim
3) a demand for the relief sought
6
Q
Twiqubal Modern Pleading Standard
A
- a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face”
- enough fact to raise a reasonable expectation that discovery will reveal evidence to claim
- a judge must decide if a claim is plausible based on judicial experience and common sense
- if liable and non-liable expectations are in the same ballpark, it could be plausible and therefore should survive
7
Q
Plausibility
A
Once a complaint has been stripped of the conclusory allegations and left with factual allegations. The factual allegations are consistent with liable and non-liable explanations. Judge will then decide what the more likely explanation is.
8
Q
General denial
A
denies each and every allegation including jurisdiction
9
Q
Specific denial
A
Goes through the entire complaint like by line and deny portions that you dispute (helps narrow down what is actually in dispute)
10
Q
Rule 8(b)
A
When answering specific part of the complaint Defendant has 3 options:
1) Admit - binding and must have good faith for not admitting
2) Denial - reject the allegation
3) Statement that Defendant lacks the knowledge or information sufficient to form a belief
11
Q
Affirmative Defenses
A
the interjection of new information, where if found to be true would dismiss the case. If you do not include affirmative defenses in your answer, you may not bring it up later in the case.
12
Q
Rule 12(b)
A
Motion to Dismiss
13
Q
Rule 12 (g)(h)
A
1) personal jurisdiction
2) venue
3) process
4) service of process
5) lack of subject matter jurisdiction
6) failure to state a claim
7) failure to join a party under Rule 19
14
Q
What defenses must be asserted in Defendant’s first response?
A
1) personal jurisdiction
2) venue
3) process
4) service of process
15
Q
What defenses can be asserted at anytime?
A
5) lack of subject matter jurisdiction
6) failure to state a claim
7) failure to join a party under Rule 19
16
Q
How can you win Motion to Dismiss?
A
- factual content of the complaint isn’t enough to state a claim that is plausible on its face
- a complaint is missing an element (legal sufficiency)
- the the complaint reveals an absolute defense
17
Q
Personal Jurisdiction
A
The power of a court to enter into a binding, final judgment against the defendant or any other party brought into a lawsuit
18
Q
Personal Jurisdiction automatically exists when…
A
- voluntary appearance
- consent to jurisdiction
- domicile in the forum state
19
Q
In personam jurisdiction
A
against a person, judgment can be collected against any of the person’s things.
jurisdiction is gained by physical presence or consent
20
Q
In rem jurisdiction
A
jurisdiction over a specific piece of property, the value of the judgment you get is only equivalent to the value of the property
21
Q
True in rem jurisdiction
A
jurisdiction over who owns the property
22
Q
Quasi in rem (1)
A
two people are fighting over a piece of property
23
Q
Quasi in rem (2)
A
the plaintiff is using a piece of property to establish jurisdiction over the defendant and then collects up to the value of that property
24
Q
Copy the constitution Long Arm
A
authorize a court of the state to assert long arm jurisdiction to the maximum extent permitted by the constitution
25
Grocery List long arm
list the specific activities that subject a non-resident to personal jurisdiction
26
Rule 4k1A
each federal court must analyze personal jurisdiction as if it were a court of the state in which it is located
27
Pennoyer Standard
presence is required to establish jurisdiction over a person
1) serving a person while they were in the state
2) express consent that service of process would be given to an in-state agent
3) voluntary appearance
4) Domicile
28
Minimum Contacts Test
- Did the defendant purposely avail himself to the forum state
- are there connections between defendant and the forum state
(has to be D's contacts with the forum, NOT D's contacts with a person who resides in the forum state)
29
Shoe Standard
- shift from presence in the state to reasonableness
- a state may subject a corporation to in personam jurisdiction if the corporation has such minimum contacts with the state as to make it reasonable to require the corporation to defend a suit there
30
Reasonableness Factors
1) Burden on the defendant
2) interest of forum state in adjudicating the dispute
3) Plaintiff's interest in obtaining convenient and effective relief
4) Interstate judicial efficiency
5) States interest in fundamental substantial social policy
31
Relatedness Requirement
1) defendant purposefully directed activities toward the forum state; and
2) whether the harms from those activities are the cause of litigation
32
Differences in Purchasers
active-> vigorously negotiating
passive-> merely placing an order by mail, phone, etc. and accepts the price
33
Jurisdiction Effects test
only used for intentional conduct that is expressly aimed at targeting state where defendant had knowledge that his intentional tortious conduct would case harm in that specific forum
34
Stream of Commerce Fact Pattern
the movement of goods from manufacturers through distributors to consumers
State A -> State B -> State C
35
Stream of Commerce Pure
(Ginsburg) if the manufacturer reasonably expect its business intermediary to send the product to the forum state that is good enough
- enough for it to be in the country where the forum state is (ex: United States -> New york)
36
Stream of Commerce+
(O'Connnor & Kennedy) reasonable expectation that the product ends up in the forum is not enough. There must be something more to show the defendant is targeting the forum state specifically.
(ex: marketing, service channels, product modification to comply with a specific state)
37
Steps of Analysis for Stream of Commerce
1) is this a stream of commerce fact pattern?
- if there are no minimum contacts in forum state then you are done
2) if minimum contacts are found under SOC pure, then move to evaluate the reasonableness factors and compare the weight of each
38
complaint
information of the general term of what the lawsuit was about
39
summons
explains to defendant that he has been used, court sued in, when response is due, consequences of failure to appear, and advises to seek a lawyer
40
How a Plaintiff can give notice to the Defendant is affected by:
1) due process clause of the U.S. Constitution
2) must be authorized by statute or court rule
41
Rule 4(d)
* Waiver designed to avoid formal service
* Send a copy of the complaint to D with a waiver of service (D’s signature on the waiver indicates that he is waiving formal service)
o He has 30 days from sending the waiver to sign the form
o Has 60 days from sending of waiver by P to answer
o If D does not sign the waiver, formal service is required
42
Rule 4(d)(2)
* If D purposely does not sign the waiver, he is on the hook for the cost of being formally served
Reasons to not sign the waiver:
* If there is a statute of limitations, you might not want to sign so P cannot serve you in time
* Try to exhaust the other side’s resources
* You may want to assert a counterclaim on P in a different venue
43
Rule 4(2)A
* Service on the individual
* Most valid form of service
44
Rule 4(e)(2)
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy at the defendant's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) service on the defendant’s appointed agent by appointment or by law to receive service of process
45
Rule 4(h)(1)
- In the manner prescribed by Rule 4(e)(1) for serving an individual (FOLLOW RULES OF STATE YOU’RE SERVING IN); OR
- By delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant; or
46
Rule 4(e)(1)
* following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court (New York) is located or where service is made (Mass.) (only one of the states needs to find service effective)
47
Rule 4(m)
*The summons is good for 90 days, and the case must be dismissed if
service is not accomplished in that time, unless the court extends it for good cause.
This rule does not apply to foreign service.
48
Notice Due Test
constitutionally adequate notice turns on “reasonable under the circumstances”; Is the notice reasonably calculated under the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections
49
Notice Due Reasonableness factors
1) how effective the service was
2) burden associated with the notice
3) interest of the state and affected party in regarding the service
4) what are the available alternatives?
50
Constructive Notice
things have occurred as such the law assumes the person know what is going on (legal fiction)
51
Subject Matter Jurisdiction
The subject matter jurisdiction of the federal courts is limited to that authorized by
the Constitution as implemented by federal statute and decisional law.
- cannot be waived
cannot be obtained through consent
52
Article 3
* Provides the outer limits on what federal courts can decide
* Congress can make federal jurisdiction smaller than the Constitution authorizes
o Maintains the federalist system by narrowing federal jurisdiction so the rest is left to the state courts
* Sets forth heads of jurisdiction; diversity and federal question (FQ)
53
Concurrent Jurisdiction
very often there will be SMJ for a given claim for both courts (claim will satisfy limited jurisdiction for federal courts and general jurisdiction for state courts)
54
Federal Question Jurisdiction
28 U.S.C. 1331 (FQ)
* Authorizes Federal Question Jurisdiction
* The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
55
Creation Test
- a suit needs to arise under the law that created the cause of action
- if state law brings the cause of action, no jurisdiction. If federal law creates the cause of action, then FQ jurisdiction.
- ask which sovereignty gave the Plaintiff this cause of action to bring
56
Federal Ingredient Test
To bring a case within the statute, a right or immunity created by the constitution or laws of the United States must be an element and an essential one of the plaintiff’s cause of action, a possible federal defense is not enough
57
Grable test "We Belong test"
1) Necessarily raise a federal issue – you are asking whether or not satisfying the elements of the plaintiff’s claim will require resolving a federal issue
2) Actually disputed – is the federal issue actually under dispute
3) Substantial – whether or not this is a substantial issue to the federal system as a whole (does the federal system care a lot about it?)
4) Capable of resolution in federal court – can a federal court decide without disturbing the balance of federal and state judicial responsibility;
58
Well Pleaded Complaint Rule
* Defenses do not count for arising under jurisdiction; if someone argues that they have a defense, they aren’t going to get into federal court because it isn’t an essential federal ingredient.
o A well-pleaded state claim doesn’t artfully contain a federal issue. If an FQ doesn’t arise out of a well-pleaded state claim it can’t be brought to federal court
59
Why Diversity Jurisdiction?
Federal forums are less likely to display hostile, discriminatory attitudes to out-of-state parties
60
A3 § 2
Only requires that at least one P have different citizenship than at least one D (minimum diversity)
Ex: P (NY) v. D (CA), D (NY) ✓
61
§ 1332
Requires complete diversity, all Ps and Ds must have diverse citizenship across both sides of the v.
P (NY) v. D (TX), D (TX) ✓
P (NY) v. D (TX), D (NY) ✗
62
Time of Diversity
Diversity must exist at the time of filing
63
To determine domicile...
Look at totality of the circumstances as illustrated by the bank one factors and the facts to determine domicile
64
Bank One Factors
where the person exercises political rights, pays taxes, works, owns or keeps property, has a driver’s license, holds bank accounts, attends church, and belongs to membership associations
65
28 U.S.C. § 1332(c)(1)
A corporation shall be deemed to be a citizen of every state or foreign state by which it has been incorporated and of the state or foreign state where it has its principal place of business
(Principal Place of Business is decided on where the “nerve center”)
66
Nerve Center
the place where a corporation’s officers direct, control, and coordinate the corporation’s activities are and decisions are made
67
Amount in Controversy
where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs 28 U.S.C. § 1332 (only applies to diversity jurisdiction)
68
legal certainty
It must appear to be a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. Sum claimed by the plaintiff controls if the claim is apparently made in good faith. (“legally certain it is not enough”)
69
Aggregation of Claims
one plaintiff can aggregate a bunch of claims against a D to satisfy the amount in controversy
70
Single Plaintiff v. Single Defendant
A single plaintiff may aggregate the damages and other appropriate amounts from all claims, both related and unrelated, against one defendant to form the amount in controversy
Ex: an employment claim and negligence claim against same D
71
Multiple plaintiffs v. single defendant
when two or more plaintiffs join a single lawsuit against a single defendant, they may not aggregate claims, related, or unrelated to meet the jurisdictional amount. (Each P has to satisfy the amount in controversy)
72
Exceptions to Aggregation
- Joint and undivided interest
- Supplemental jurisdiction exception
- Single plaintiff v. multiple defendants
73
Joint and undivided interest
Multiple plaintiffs may aggregate if the claims are
based on a common and undivided interest.
74
Supplemental Jurisdiction Exception
If one plaintiff meets the amount in controversy against the sole defendant, the other plaintiffs’ claims may be joined as supplemental.
75
Single Plaintiff v. Multiple Defendants
the single plaintiff may not aggregate claims against multiple defendants. The test here is the same as for multiple plaintiffs against a single defendant: no aggregation, whether the claims are related or not.
76
Supplemental Jurisdiction
The FRCP allow people as a matter of procedure to join (add) parties to the case and to add claims to cases
- just because Supp. J is constitutional, it does not mean the court is obligated to exercise supp. J
77
Supplemental Claim
A supplemental claim is one lacking its own basis for
federal jurisdiction (that is, not a federal question or diversity claim), but that is “so related to
claims in the action within such original jurisdiction that [it] forms a part of the same case or
controversy under Article III.” 28 U.S.C. § 1367(a).
78
Common Nucleus of Operative fact
If a case involves a claim that has independent SMJ and there is also a standalone claim, then the tag-along claim can be heard as a matter of constitutional power if the tag-along claim has the same CNOF as the independent claim
79
Discretionary factors
- Try to avoid needless decisions on important matters of state law
- Try to avoid where standalone claims have been dismissed before trial
- Try to avoid where tagalong claims substantially dominate the case
- Try to avoid when hearing would lead to confusing the jury
80
Removal
A defendant can bring a case from state court to federal court if the federal court would have had original jurisdiction
- D can only remove from state court to the federal district that embraces the place where the state suit is pending
- removal only goes one way
- D has 30 days to remove after receiving P's complaint
- If there is an FQ anchor claim and claims without Original Jurisdiction and Supp. Jur., then the claims can be severed (FQ stays in federal court and other claims remanded to state court)
81
Removal is a privilege for...
Defendants only!
- all Ds served and subject to service have to agree with the removal
82
Homeboy Rule
When diversity jurisdiction is the reason for getting into federal court, a D sued in his home state cannot remove to federal court
Ex: A is sued on diversity grounds in his home state of Texas. He moved to remove the case to Texas federal court –> this breaks the homeboy rule
83
The Erie Doctrine
lets you figure out what law to apply in federal court for diversity cases
84
Horizontal Choice of Law
if there are two states involved in a suit, you have to decide what state law apples
85
Vertical Choice of Law
for a given issue in a given case whether or not we are going to apply federal or state law
86
Procedural Law
the manner or means in which you advance your claim
87
Substantive Law
regulates underlying conduct in the regular world
88
Rules and Decision Act
in diversity cases you use state substantive law and federal procedural law
89
Choice of Law Principle
Federal court uses the choice of law principle that the state court would use to determine which state court law would apply
90
Once a court knows it is supposed to apply the laws of the state...
1) if the state supremes have recently weighed in, the federal court is bound by what they said and what the legislature said; IF NOT
2) it looks at the law in the state and tries to predict what the state supremes would do
if it still can't figure it out –> federal courts can certify a question to the state court as to what the law is
91
Erie Track 2
FRCP v. State Law
first ask if there is a conflict, if yes then do REA Analysis:
1) is the rule in question rationally capable of classification as a procedural rule?
2) Does it abridge, enlarge, or modify any substantive right?
- All FRCPs have a presumption of validity. The court has never overturned an existing FRCP but still do the analysis
92
Erie Track 1
Fed. Statute v. State Law
is there a conflict? No, apply both
if there is a conflict...
1) Is the statue sufficiently broad to control the issue?
2) Is the statute a valid exercise of congressional authority?
–> is the rule in question rationally capable of classification as a procedural rule?
93
Erie Track 3
Judge Made Law v. State Law
1) Assume Constitutional Grant of Judge Made Law
2) Does applying the federal law lead to inequitable administration of the laws and forum shopping?
if yes then apply state law, UNLESS,
- Countervailing federal interests outweigh the risk of forum shopping and inequitable administration (take into account the likelihood of FS and IA)
94
Examples of Countervailing Federal Interest
- something that is not in the constitution but has something to do with it
- Rules that affect judge and jury allocations
95
Rule 56 Motion
Summary Judgment
A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law
96
Genuine Issue
If a reasonable jury could return a verdict for either party
97
Material fact
a fact that might affect the outcome of the case
98
When does MSJ occur?
after the discovery period
99
Movant must establish...
there is no genuine dispute of material fact with respect to every element of the claim
100
Preponderance of the evidence
51% sure
101
Clear and Convincing
75%
102
Beyond a Reasonable Doubt
95-99%
103
MSJ Defining Details
- the court should not engage in credibility determinations of witnesses
- movant cannot make conclusory assertions, you have to point to a hole in the record
- evidence is viewed in favor of the non-moving party
- Moving party has burden to present the absence of issue of material fact → non-moving party responds by showing there still is an issue of material fact.
104
3 purposes of discovery
- preserve evidence
- narrow issues in dispute
- learn more about the fact
105
Discovery in the federal rules permits...
a party to obtain any unprivileged matter that is relevant to the claim and defense of any party and proportional to the needs of the case
106
Discovery rules are...
broad
107
Rule 26(b)
sets forth discovery scope and limits
any party may obtain unprivileged material
a reasonable fishing expedition is okay under the rules
108
Attorney Client Privilege vs. Work Product
AC protects confidential communications between an attorney and their client, while the work-product doctrine protects the preparation an attorney undertakes on behalf of their client in anticipation of litigation or trial
109
Attorney client privilege applies to
a) a person to whom the communication was made, is a member of the bar of a court, or their subordinate and b) in connection with the communication is acting as a lawyer
- only applies to communications and not to facts!
110
Work Product Privilege
protects against disclosure of information gathered in anticipation of litigation or trial
111
Opinion work product
the mental impressions of an attorney, including notes and memoranda
- entitled to absolute protection
- underlying facts are not protected
112
Work Product can be overcome when...
the requesting party shows a substantial need for such information and shows there is an undue hardship
113
a court must limit the frequency or extent of otherwise permissible discovery if:
- the discovery sought is unreasonably cumulative of duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive
- the party seeking recovery has had ample opportunity to obtain the information by discovery in the action, or
- the proposed discovery is outside the scope permitted by Rule 26(b)(1)
114
RULE 26(F)
parties must meet ASAP but within 21 days to come up with written discovery plan for the litigation
115
Rule 26(a)(1)(A)
required initial disclosures
- purpose is to accelerate the exchange of basic information about the case and to eliminate paperwork involved in requesting such information
- must be made to the other parties at, or within 14 days after the Rule 26(F) conference unless a different time is set by stipulation or court order
116
What is included in required initial disclosures
i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. (does not mean this is admissible)
117
Depositions
* The point is to gather information that helps you understand the strengths and weaknesses of your case
* The person being deposed is only required to answer questions based on their present knowledge and recollection
* You have an objection, but the witness still has to answer unless the information is ACP and later a judge will possibly sustain the question and therefore that question and answer is not admissible
118
Rule 30(a)2(i)
limits each side to 10 depositions per side no more than 7 hours each
119
Rule 33
Written Interrogatories
a written request for informations that may be served on an opposing party and that must be answered by that party in writing and under oath
- a party may serve a maximum of 25 interrogatories on any one party, though the number may be increased by leave of court or stipulation of the parties
- a party served with interrogatories must serve a written copy of the answers, and any objections within 30 days after service of roggs.
120
Rule 34
Request for Production
a party may ask an opposing party to produce or provide access to the designated items
121
Rule 35
Physical and Mental Exams
to subject another to a physical or mental examination, the party's mental or physical health must be an issue in controversy and good cause be shown to subject the party to an order requiring said exams
122
Rule 36
Request for Admission
other party has to admit or deny or explain why they cannot admit or deny the RFA
- failure to answer after 30 days is taken as an admission to everything
123
Rule 26(e)
Supplementation
when you gain new information, you have to disclose it so the other side does not have to keep asking you the same questions over and over
124
Rule 26(b)(4)
discovery of consulting experts: cannot be discovered unless on showing exception circumstances under which it is impractial for the party to obtain facts or opinions on the same subject by other means
125
Purpose of consulting experts
a) Can help you win by helping you understand
b) Help your presentation of complex materials
c) Helps you understand what arguments are good
d) Experts can really help you focus your discovery (what to ask for & what to look out for on your side)
e) Can help you evaluate the settlement value of your case
f) Good source of impartial advice
126
Rule 26(a)(2)
testifying experts: experts retained in anticipation of litigation or trial for performance
the expert report that the other side gets to see must include all data and other information considered by the expert witness and all facts or data that is considered because you want the other expert to consider the same set of data
127
FRCP 26(a)(2)(B)(i)-(vi)
What the report of the testifying expert must contain:
i) a complete statement of all opinions the witness will express and the basis and reasons for them;
* (ii) the facts or data considered by the witness in forming them;
* (iii) any exhibits that will be used to summarize or support them;
* (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
* (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
* (vi) a statement of the compensation to be paid for the study and testimony in the case
128
Rule 26(a)(2)(D)
* Experts disclosure and deposition comes at the end of the litigation process (at least 90 days before trial or 30 days after the other expert) because it is expensive
* Experts benefit by having a complete data set
129
Joinder
when and how the litigants in a dispute can join other parties and join other claims
Takeaway: the joinder rules in the FRCP are procedural only – they do not answer the jurisdictional question about who can be in court (nothing to do with PJ or SMJ)
130
2 joinder questions you always have to ask:
1) do the FRCP permit joinder in these circumstances
2) if joinder were to occur, would the court have SMJ?
131
Rule 18
Permits P to assert any claim against an opposing party
- claims do not have to be related in any way "open season"
- parties do not have to join every claim but they can if they want
- applies to counterclaims, crossclaims, and 3rd party claims but does not kick in until they become cross claimants
132
Rule 13(a)
Compulsory Counterclaims
a pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against an opposing party if it:
a) arises out of the same transaction or occurence that is the subject matter of the opposing party's claim
b) does not require adding another party over whom the court cannot acquire jurisdiction
- failure to assert a compulsory counterclaim in the original suit bars the filing of the claim in a second suit only if the first suit has already gone to judgment
133
How to determine if a counterclaim arises out of the same T/O?
Logical relationship test: ask whether the claims are logically related in a way where it would make good sense to try them together and you should consider:
1) the totality of the claims
2) the nature of the claims
3) legal basis of recovery
4) the law involved
5) the respective factual backgrounds
- if a case is a compulsory claim, then you automatically have supplemental jurisdiction (1367 "same case or controversy")
134
Rule 13(b)
Permissive Counterclaims
a pleading may state a counterclaim against an opposing party any claim that is not compulsory
- a counterclaim is deemed permissive if it does not rise out of the same T/O
- must have own basis for federal subject matter jurisdiction to survive
135
Rule 13(g)
Crossclaims
claims asserted by a party against a co-party such as those filed by a defendant against a co-defendant
* Co-parties become opposing parties within the meaning of 13(a) after one party pleads an initial cross-claim against the other unless the cross-claim is one for indemnification or contribution
136
Rule 20
Permissive Joinder of Parties
plaintiffs and defendants who may join or be joined:
1) they assert any right to relief jointly, severally, or in the alternative with respect to arising out of the same transaction, occurrence, or series of T/O
2) any question of law or fact is common to all p/d will arise in the action
- broader than Rule 13 bc it applies to separate claims that arise out of the same series of T/O
137
Rule 13(h)
Joinder of Parties by Defendants
Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim
- does not differentiate between parties added under 19 or 20 and explains that "since the claim itself is already within the court's supplemental jurisdiction, the party should be added on the same basis in the interests of maximum judicial efficiency and economy
138
Rule 14
Impleader
joinder of a party who is or may be liable to the defending party for all or part of the claim against it (c/i claims)
- a theory that the other party is the correct defendant as a defense is not the proper basis for impleader
139
Rule 19
Compulsory Joinder
necessary parties that should be added to the case
140
Rule 19 Compulsory Joinder Steps
Step 1: is the party to be joined a required party?
Step 2: if the party is required, is it feasible to join them?
Step 3: Should the show go on? (19(b))
141
Rule 19 Step 1:
1) (a)(1)(A) – those whom the court will be unable to accord “complete relief” among the existing parties without them (no complete relief prong)
2) (a)(1)(B)(i) – Those who claim an interest in the subject of the action and whose interest might be harmed in their absence; or (prejudice in absence party prong)
3) (a)(1)(B)(ii) – Those who have an interest in the subject of the action and whose absence will leave an existing party subject to the double, multiple, or otherwise inconsistent obligations (prejudice to a current party prong)
142
Rule 19 Step 2:
1) Is there a PJ or SMJ problem? If not, then the party is required to be joined by the court
- But if there is a jurisdiction problem, go to step 3
143
Rule 19 Step 3:
The court must determine whether, in “equity and good conscience,” the action should proceed among the existing parties or should be dismissed.
* (b)(1) – how much prejudice will the existing/absent parties really suffer?
* b)(2) – are there steps that the court can take to reduce the prejudice?
* (b)(3) – Whether judgment rendered in a person’s absence is adequate
* (b)(4), would the plaintiff have an adequate remedy if the action were dismissed for nonjoinder? (is there another forum?)
