Complaint and Joinder of Parties Flashcards
What are complaints like in General District Court?
- Informal
- Can file a regular complaint, but often, “complaints” are simply forms to fill out (sometimes called a “warrant in debt” or “summons for unlawful detainer.”
What are the basic requirements for complaints in Circuit Court?(2)
- Must contain the facts that establish the plaintiff’s claim for relief
- Must include a demand for relief
What is an “Ad Damnum Clause” and what is its importance?
It is a clause that states how much the plaintiff is demanding. The plaintiff cannot recover more than is stated in the clause.
Does the complaint need to be consistent?
Nah, you can plead alternative facts and theories of liability
What is the rule concerning essential documents and complaints?
If the plaintiff does not attach essential documents to the complaint, the defendant can file a motion “craving oyer.”
Craving oyer = “a request to require that a document sued upon, or a collateral document which is necessary to the plaintiff’s claim, be treated as though it were part of the plaintiff’s pleadings.”
Every complaint must be signed, which signifies: (3)
- signor has read the complaint
- signor believes it is supported by sufficient faccts and law
- complaint is not offered for an improper purpose (like harassment or delay)
What can happen if the complaint is not signed?
It can be STRICKEN
In what name does a minor bring suit?
In what name is a minor sued?
She should sue in her own name, by John Doe, her next friend
She should be sued in her own name, but the court must ensure that the minor is represented by an attorney
minor P: must be filed by a next friend
How do you sue an incompetent?
If he has a substantial estate, there is a formal proceeding appointing fiduciary to act for the mentally incompetent person.
Then, you sue the fiduciary that was appointed
How is an incompetent sued without a fiduciary?
Any judgment is invalid, unless both:
- incompetent represented by a lawyer who entered an appearance for her
- Suit is not to encumber incompetent’s land
next friend pleading
How does an incompetent sue without a fiduciary?
Either:
- Guardian sues
- Incompetent sues in own name, by next friend
next friend pleading
How are imprisoned people handled?
similar to those that are incapacitated.
Instead of a fiduciary, the court will appoint a “committee” which is actually one person.
How are deceased persons handled? (3 things to know)
If someone dies while a lawsuit is pending, the lawsuit continues and the person’s heir or personal representative will take over.
if a person is liable and dies before liability is determined, the liability is passed on to their estate.
Ultimately, upon the decedent’s death, a “personal representative” is substituted as the new party.
When can multiple plainitff’s join together? What about those jointly injured in an accident?
They must have joint legal rights (e.g., lawsuit dealing with jointly owned home)
Ps who are jointly injured in the same accident CANNOT join together (Different from Fed. Rules!)
When can a P sue multiple Ds?
When the claims against the Ds arise out of the same transaction or occurrence.
Necessary Party Joinder
What is Necessary Party Joinder?
Arises when a person or entity has a significant interest in the litigation, but is not a party.
Necessary Party Joinder
To determine whether join the person or entity, the court asks: (3)
- Is the absent party necessary
- if necessary, can the party be joined
- if the absent, necessary party cannot be joined, should the court continue with the suit or dismiss the entire action?
Necessary Party Joinder
When is a party necessary? (3)
- The party has an interest that might be impaired if left out of the litigation;
- complete relief cannot be issued in the party’s absence;
- the current parties would be subject to duplicative or inconsistent liability
I think this is an “or” situtation
Necessary Party Joinder
are joint tortfeasors necessary parties?
No, as a rule, they are not necessary
but multiple D’s can be joined if the claims against them arise out of the same T/O
Necessary Party Joinder
Key reason necessary party cannot be joined?
lack of PJ
Necessary Party Joinder
what factors (3) does a court consider in deciding whether to continue the case or dismiss it if a necessary party cannot be joined?
The court will consider:
* the extent of prejudice to the missing party
* whether there are ways to lessen the prejudice
* whether there is another forum in which the plaintiff can join all parties
Highly discretionary
Interpleader
What is interpleader?
When one party is stuck between two other competing parties. For example, K has a life insurance policy with Insurance Co. A and H, former spouses, claim the proceeds. Insurance Co. may file an interpleader action to determine who should receive the funds.
Nomenclature: misjoinder and nonjoinder
What does “misjoinder” mean, and what does “nonjoinder” mean?
- Misjoinder: when a party has been inappropriately joined
- Nonjoinder: when a necessary party should have been joined but was not
How does a party intervene in a pending action?
A new party may by leave of court file a pleading to intervene as a plaintiff or defendant to assert any claim or defense germane to the subject matter of the proceeding. Courts have considerable discretion in granting or refusing such a request.
