Civ Pro I Flashcards
Rule 15(c)
Relate Back - an amended complaint against a new D relates back to thE original complaint if:
1. The claim arose out of the conduct, transaction, or occurrence set out in the original pleading. 2. w/in period of rule 4(m) (120 days usually) the defendant:</p>
<ol>
<li>
Rec'vd such notice of the action so as to not be prejudiced in defending on the merits; and</li>
<li>
Knew or should have known that the action would have been brought against it but for a mistake w/ proper party's identity.</li>
</ol>
<p style="text-align: center;"> Rule 13(a)</p>
<p>
<u>Compulsory Counterclaim</u></p>
<p>
A counterclaim is compulsory (use it or lose it) when:</p>
<ol>
<li>
it arises out of the transaction or occurrences that is the subject matter of opposing party's claims and</li>
<li>
does not require adding another party over whom the court cannot acquire jurisdiction</li>
</ol>
<p>
This applies to any D, not just original D</p>
<p>
Exceptions:</p>
<ol>
<li>
When action commenced, claim was subject of another pending action.</li>
<li>
If it forces personal jurisdiction when there would not be otherwise.</li>
</ol>
<p>
| 3 tests to determine "transaction or occurrence" test of Rule 13(a)</p>
<p> Nasalock v Nylok Corp</p> <ol> <li> Whether the legal & factual issues raised by the claim and counterclaim are largely the same.</li> <li> Whether substantially the same evidence supports or refutes both the claim and counterclaim.</li> <li> Whether there is a logical relationship between the claim and the counterclaim.</li> </ol> <p> Only 1 must be met not all 3.</p>
<p>
| Exceptions to Rule 13(a)</p>
<p>
Not all claims that do arise out of the same transaction or occurrence are compulsory</p>
<ol>
<li>
unmatured claims are not compulsory</li>
<li>
If the counterclaim cannot be adjudicated w/out joining unavailable 3rd parties</li>
<li>
Already pending before a court</li>
<li>
Counterclaims are not compulsory in cases where the court acquires jurisdiction by seizing property.</li>
</ol>
<p style="text-align: center;"> Rule 13(b)</p>
<p>
Permissive Counterclaim</p>
<p>
A pleading may state as a counterclaim against an opposing party any claim that is not compulsory under 13(a)</p>
<p>
*Never litigation about this (per professor)</p>
<p style="text-align: center;"> Rule 13(g)</p>
<p>
Rainbow Management v Atlantis Submarine</p>
<p>
A co-party becomes an opposing party as defined in 13(a) when a cross claim is filed and is subjec to compulsory counterclaim.</p>
<p>
13(g) - A pleading may state as a cross claim any claim by one party against a co-party if the claimi arises out of the transacton or occurrence that is the subject matter of the original action or a counterclaim, or if the claim related to any property that is subject matter of the original action.</p>
<p style="text-align: center;"> Rule 13(h)</p>
<p>
Rules 19 and 20 govern the addition of a person as a party to a counterclaim or cross claim.</p>
<p>
Example - D files a counterclaim against P and adds a party.</p>
<p>
One party is already subject to claim.</p>
<p style="text-align: center;"> Rule 14(a)</p>
<p>
14(a)(1) - A D may serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. Typically has 14 days otherwise has to ask the court for leave.</p>
<p>
14(a)(2) - 3rd party D must assert any defense under Rule 12 and must assert any counterclaim under 13(a) and may assert any claims under 13(b) or (g).</p>
<p>
File an impleader complaint. "Impleader is only proper where the 3rd party defendant's liablity is in some way derivative of the outcome of the main claim" - Alltech v Brothers</p>
<p>
Must have a legal theory in which to implead the 3rd party.</p>
<p style="text-align: center;"> Rule 12(b)</p>
<p> Defenses - D may file a motion to dismiss under 12(b)</p> <ol> <li> Subject matter jurisdiction</li> <li> Lack of personal jurisdiction</li> <li> Venue</li> <li> Insufficient process</li> <li> Insufficient service of process</li> <li> Failure to state a claim upon which relief can be granted</li> <li> Failure to join a party under rule 19</li> </ol>
<p>
| Rule 18</p>
<p>
Joinder of Claims</p>
<p>
18(a) - A party in a claim, counterclaim. crossclaim, or 3rd party claim may join, as independent or alternative claims, as many claims as it has against a party.</p>
<p>
18(b) - Can join contingent claims</p>
<p>
Joinder is proper only if ct. has jurisdiction over all the claims.</p>
<p>
There is no common transaction or occurrence requirement.</p>
<p>
One claim has to be proper in order to join all the claims.</p>
<p>
| Rule 20</p>
<p>
Permissive Joinder of Parties</p>
<p>
20(a)(1) - P's - Plaintiffs can sue together if they assert claims arising out of the same transaction or occurrence and their claims against D's involve a common question of law or fact.</p>
<p>
20(a)(2) - D's - Defendants may be joined in one action if the claims asserted against them arise out of the same transaction or occurrence and the claim(s) against them involve a common question of law or fact.</p>
<p>
20(a)(3) - Court can grant judgment to one or more P's based on their rights and one or more D's based on their liability.</p>
<p>
| Juridical Link</p>
<p>
Related to Rule 20</p>
<p>
A legal relationship which sufficiently relates all the defendants so that a single action is preferable.</p>
<p>
| Personal Jurisdiction - Generally</p>
<p> Refers to the ability of a court to exercise power over a particular defendant or item of property.</p> <p> Forum State = State where suit is brought.</p> <p> Types of Jurisdiction</p> <ol> <li> Specific</li> <li> General</li> </ol>
<p style="text-align: center;"> In Personam</p> <p style="text-align: center;"> In Rem</p> <p style="text-align: center;"> Quasi In Rem Jurisdictions</p>
<p>
In Personam - Full faith and credit clause - judgment is personally binding and can be enforced in that state or in others.</p>
<p>
In Rem - Court has power to determine the rights of the parties in specific property within the state's boundaries.</p>
<p>
Quasi In Rem - Enables the Court to exercise power over D's property by attachments use it to satisfy P's personal claim against D. Limited to recovery not exceeding the property value.</p>
<p>
| Statutory Analysis for Personal Jurisdiction</p>
<p> Does the state authorize personal jurisdiction over D? It can be through:</p> <ol> <li> D was present in forum state when served (exceptions fraud and called to state as witness)</li> <li> Domicile (always grants PJ)</li> <li> Consent</li> <li> Long Arm Statutes - due process or laundry list</li> </ol>
