CIV PRO CMR MODULES 9-14

Question 1

What claims can multiple Ps and/or ∆s assert?

Answer 1

The claims by multiple Ps or against multiple ∆s must:

1. arise from the same T/O; AND
2. raise at least one common Q of law or fact.

Shorthand: same t/o & 1 common q of L or F.

Question 2

Claim joinder by plaintiff

Answer 2

Under the FRCP, a plaintiff (anyone asserting a claim) may join any additional claim she has against that adverse party EVEN IF the additional claim is unrelated to the original claim.

BUT THERE MUST BE SMJ OVER THE CLAIM!!! [FQ, diversity, supplemental]

Question 3

3 Qs to ask whether the court must force a nonparty/absentee to join in the case.

Answer 3

1. Is the absentee necessary or required?
2. If not, can the absentee be joined?
3. If not, can the case proceed anyway?

Question 4

Joinder of absentees STEP 1: When is joinder of an absentee “necessary” or “required”?

Answer 4

1. Without the absentee, the ct cannot accord complete relief among the existing parties; OR
2. The absentee’s interest may be harmed if she is not joined; [MOST LIKELY ON THE EXAM] OR
3. The absentee claims an interest that subjects a party/∆ to a risk of multiple obligations.

If ALL of these are NOT TRUE –> there’s no joinder issue; action can proceed without absentee.

Question 5

Joinder of absentees STEP 2: When is joinder of an absentee “feasible?”

Answer 5

Joinder is feasible if:

1. There is PJ over the absentee
2. There will be federal SMJ over the claim by or ag the absentee. [In determining whether the claim invokes diversity, the ct. “aligns” the absentee as a P or ∆ based on the absentee’s interest.

If the absentee is served within a U.S. dist. & <100 miles from where summons was issued, there’s PJ over the absentee regardless of contacts w/ the forum. Otherwise, do traditional contacts-based PJ analysis.

If joinder is feasible –> the absentee is simply joined to the case.

Question 6

Joinder of absentees STEP 1: if joinder is not “feasible” can the case proceed anyway [in equity & good conscience]?

Answer 6

If joinder of the absentee is not feasible, courts look to whether

1. is there an alternative forum available (i.e., state ct)?
2. What is the actual likelihood of harm to the absentee?; and
3. Can the court shape relief to avoid that harm to the absentee?

The court looks at these factors and determines whether to proceed without the absentee or dismiss the entire case.

If the ct. dismisses the case –> the absentee is called “indispensable.”

Question 7

What is a counterclaim? Where does the party assert their counterclaim? How many days does a party have to respond to a counterclaim?

Answer 7

A counterclaim is a claim against an opposing party, usually ∆ ag. P. There are compulsory and permissive counterclaims.

A counterclaim is part of the ∆’s answer.

After ∆ serves a counterclaim ag the P, the P must respond within 21 days of service of the counterclaim.

The ONLY compulsory claim is a compulsory counterclaim!!!

Question 8

Compulsory counterclaim?

Answer 8

A compulsory counterclaim is on that arises from same T/O as P’s claim; counterclaimant MUST file compulsory counterclaim in the pending case or the claim is WAIVED. Use it or lose it!

Court must have SMJ over the counterclaim [FQ/Div/Supp]

Question 9

Permissive counterclaim?

Answer 9

Doesn’t arise from same T/O; counterclaimant may file in pending case or in a separate case.

Court must have SMJ over the counterclaim [FQ/Div/Supp]

Question 10

Crossclaim?

Answer 10

A crossclaim is a claim against a coparty.

Must arise from same T/O as the underlying action but it’s not compulsory.

Question 11

What is an impleader claim?

Answer 11

∆/3PP impleads 3P∆ to shift the liability if ∆ found liable to P. Indemnity shifts liability completely; contribution shifts it pro-rata (3P∆ covers pro rata portion of the claim).

Impleader claims are permissive.

Question 12

Process for impleading 3P∆ into the case?

Answer 12

To implead a 3P∆, ∆/3PP must:

1. file a 3P complaint naming the 3P∆, AND
2. serve complaint on 3P∆

∆ may implead as of right within 14 days of serving the answer. After that, need ct. permission.

After 3P∆ is joined, P may assert claims ag 3P∆ &
3P∆ may assert claims ag P, THAT ARISE OUT OF THE SAME T/O AS THE UNDERLYING CASE.

Of course, you need SMJ over each claim.

3P∆ is NOT a P WRT limitation on supp jx in diversity cases [the limitation being that claims by Ps cannot invoke supp jx unless it’s multiple Ps & one P’s claim doesn’t meet amt in controversy req].

Question 13

What is the PJ loophole for impleaded parties?

Answer 13

As with an absent party, there’s PJ over an impleaded party if:

served in a U.S. district & not more than 100 miles from the fed ct that issued the summons (regardless of contacts w/ the forum).

If more than 100 miles, there must be traditional contacts based PJ.

Question 14

What is intervention?

Answer 14

When a nonparty absentee intervenes in the case as a P or ∆; the ct may realign the intervening party if the absentee came in on the wrong side. Application to intervene must be “timely.”W

Question 15

What is intervention of right?

Answer 15

If absentee’s interest may be harmed if not joined
& that interest is not adequately represented by the current parties.

Of course, claim must invoke SMJ. The limitation on on supp. jx may apply if intervenor P.

Question 16

Permissive intervention

Answer 16

If absentee’s claim or defense has at least one common Q of law or fact.

BUT still discretionary w/ ct.
Ct. will allow unless it would cause delay or prejudice to s.o.

Of course, claim must invoke SMJ. The limitation on supp. jx may apply if intervenor P.

Question 17

What is interpleader?

Answer 17

Applies if separate actions might result in double liability ag a stakeholder.

Permits stakeholder to require 2+ adverse claimants to the stake to litigate among themselves to determine which has the valid claim to it.

Rule 22 interpleader requires (1) complete diversity between stakeholder & all adverse claimants and in excess of $75,000 in issue or a (2) federal question claim. Norman service & venue rules apply.

Section 1335 (statutory) interpleader requires only diversity between any 2 contending claimants & $500 in issue. Service may be nationwide & venue proper where any claimant resides.

Question 18

Class action initial requirements?

Answer 18

a. Numerosity
Too many class members for practicable joinder [no magic #]

b. Commonality
Common issue to all class members so resolution of that issue will generate answers for everybody in one stroke.

c. Typicality
Class rep’s claims are typical of the claims of the class.

d. Adequacy (representative adequate)
The class rep will fairly and adequately represent the class. [there’s a diff. kind of adequacy later when ct. certifies the class and appoints class counsel who must fairly & adequately represent the interests of the class.]

Question 19

3 types of class actions?

Answer 19

Type 1 (Prejudice)
Class treatment is necessary to avoid harm/prejudice either to class members of the non class party. Rare.

Type 2 (Injunctive or Declaratory Relief)
Class members seeking injunctive or declaratory relief bc ∆ treated members alike. Class members generally cannot seek money damages.

Type 3 (Common Question/Damages)
1. Common Qs must PREDOMINATE over individual Qs
2. The class action is a superior method to handle the dispute.

Frequently used for mass torts.

Only Type 3 requires notice to all class members & allows opting out.

The court must notify class members that they are in a class.

Individual notice (usually by mail) to all reasonably identifiable members, paid for by the rep, tells class members 3 things: (1) can opt out; (2) will be bound by the judgment if they don’t opt out; and (3) can enter a separate appearance through counsel.

Question 20

Court must certify class.

Answer 20

Even though the rep’s complaints says class actions it’s not one until the ct grants the motion to certify it as a class action.

The ct. must:

1. Define the class & class claims/issues/defenses; AND
2. Appoint class counsel, who must fairly & adequately rep the interests of the class.

Immediately reviewable. Party who loses class cert motion can seek review from ct. of appeals.

Question 21

How are class actions settled? (remember hs ~chem prof~)

Answer 21

The parties can settle or dismiss a certified class action only with court approval.

In all 3 types, ct. must give notice to members to get ~feedback~ on whether the case should be settled or dismissed.

In Type 3, ct. might refuse to settle unless members given 2nd chance to opt out.

Question 22

SMJ in class actions

Answer 22

Can use FQ

If invoking diversity jx, only class rep citizenship is considered & only her claim must exceed $75,000. The claims of other members are ignored.

Question 23

Class Action Fairness Act (CAFA)

Answer 23

CAFA grants SMJ if:

1. At least 100 members
2. Any member is diverse (not just rep)
3. Aggregated claims exceed $5 million

Any 1 ∆ (even in state ∆) may remove the case to fed ct.

This makes it easier for interstate class actions to go to fed. ct.

But local actions will stay local (there’s complicated provisions to ensure that local classes stay in state ct. (where most members and the primary ∆s are citizens of the same state).