Civ Pro: Complex Cases Flashcards
Party Joinder: Proper Ds and Ps
These are people who MAY be joined. Ps can join if their claims arise from same T/O AND raise at least one common question. Then assess SMJ
Party Joinder: Necessary and Indispensable Parties
Some absentees must be forced to join in the case because they are necessary if:
a. Without A, the court cannot accord complete relief amend existing parties (worried about multiple suits);
b. A’s interest may be harmed if he is not joined (practical harm); or
c. A claims an interest that subject a party (usually D) to a risk of multiple obligations.
* joint tortfeasors are NEVER necessary
If Absentee cannot be joined?
The court must do one of two things: 1) Either proceed w/o you OR 2) Dismiss entire case
Factors:
Is there an alternative forum available
What is the actual likelihood of harm to you
Can the court shape relief to avoid that harm to you
Impleader (third party practice)
A defending party wants to bring in someone new TPD– because TPD may owe indemnity or contribution to the defending party on the underlying claim.
Right to implead– within 14 days of serving your answer. After that you need court permission
Steps for Impleading TPD
1) File third party complaint naming TPD; and
2) Serve process on the TPD (so must have PJ over TPD).
After TPD is joined, may P assert a claim against TPD?
Yes, if the claim arises from the same T/O as the underlying case.
*Assess SMJ and if Div or FQ doesn’t work do SJ.
After TPD is joined, may TPD assert a claim against P?
Yes, if the claim arises from same T/O as the underlying case.
*Assess SMJ and if Div or FQ doesn’t work do SJ.
Intervention
An absentee (A) wants to join a pending suit. She chooses to come in either as P (to assert a claim) or as D (to defend a claim). The court may realign her if it thinks she came in on the wrong side. Application to intervene must be timely
Intervention of Right
A’s interest may be harmed if she is not joined and is not adequately represented now.
Permissive Intervention
A’s claim or defense and the pending case have at least one common question. Discretionary with court; OK unless delay or prejudice
Class Action: Rep sues on behalf of group. What are the initial requirements?
Must demonstrate all four of these:
- Numerology
- Commonality
- Typicality
- Representative Adequate.
Class Action: What is the next step after initial requirements.
Must fit the case within one of three types:
- Prejudice: class treatment necessary to avoid harm either to class members or to the non-class party
- Injunction or declaratory judgment sought because D treated the class ALIKE.
- Damages: common questions predominate over individual AND class action is the superior method to handle the dispute.
Class Action: Third requirements
The court has to certify it as a CLASS ACTION. IF the court grants the motion to certify it must define the CLSS and the class claims, issues, or defenses. Must also appoint class counsel.
In Damages class action what must the court do?
Must notify the class members that they are in a class. individual notice to all reasonably identifiable members. Notice tells them: they can opt out; bound if they don't; they can enter a separate appearance through counsel. *Rep pays for cost of notice
Can the parties settle or dismiss a certified class action?
Only with court approval * Court gives notice to class members to get feedback on whether the case should be settled or dismissed. IF type 3 class, court might give members a second chance to opt out
