CPLR ART 10 Volume 1 Flashcards
- Necessary joinder of parties.
Necessary joinder involves parties who need to be joined for __________ or parties who may be inequitably affected by the judgment
complete relief
- Necessary joinder of parties.
When a person who should join as a plaintiff refuses to do so he may be made a _________
defendant.
- Necessary joinder of parties.
A party SHALL be summoned by the court to appear in the action if there is jurisdiction over them and they have not _________ in the action
joined
- Necessary joinder of parties.
When the consent of a necessary party is needed for jurisdiction over them, the court may allow the action to proceed without the necessary party based on:
- Whether there is another effective remedy the plaintiff has if dismissal is granted for Non-joinder
- The prejudice which may accrue from the Non-joinder to the defendant
- Whether and by whom the prejudice might have been avoided now or in the future
- The feasibility of a protective provision by court order or in the judgment
- Whether an effective judgment may be rendered in the absence of the person who is not joined
- Necessary joinder of parties.
When the consent of a necessary party is needed for jurisdiction over them, the court may allow the action to proceed without the necessary party based on:
- Whether there is another effective remedy the plaintiff has if dismissal is granted for Non-joinder
- The prejudice which may accrue from the Non-joinder to the defendant
- Whether and by whom the prejudice might have been avoided now or in the future
- The feasibility of a protective provision by court order or in the judgment
- Whether an effective judgment may be rendered in the absence of the person who is not joined
1002- Permissive Joinder
Permissive joinder of plaintiffs or defendants may occur when:
- Claims arise out of the same __________ or __________
- The action involves common questions of __________ or __________
transaction or occurrence …… law or fact
1002- Permissive Joinder
Joined parties (DO/DO NOT) have to be seeking all the same relief or defending against all the same allegations.
DO NOT
1002- Permissive Joinder
The court may order separate trials to prevent _____________
This is interesting. The court can make an order to separate to prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and, who asserts no claim against him. That’s right. EMBARRASSMENT!
prejudice
1003- Nonjoinder and misjoinder of parties.
Nonjoinder - Parties who should be in an action and ___________ – This (IS/ISNOT) a ground for Dismissal
aren’t…… IS
1003- Nonjoinder and misjoinder of parties.
Misjoinder- Parties improperly joined (IS/IS NOT) ground for Dismissal
IS NOT
HINT: “lf you MIS, you can’t dismiss”
1003- Nonjoinder and misjoinder of parties.
A motion to add or drop parties may be made at any stage of the action, sua sponte (on the court’s own motion) or by stipulation of the parties
Parties may be added _________ without leave (permission) of the court within:
- ___________ from the service of the original summons or before time to answer has expired or __________ from the time a responsive pleading is served
ONCE…… Twenty (20) DAYS…… Twenty (20) DAYS
1003- Nonjoinder and misjoinder of parties.
The court may order any claim against a party severed and proceeded with separately.
severed
1004- When joinder unnecessary
Sometimes Joinder is Unnecessary, for example the Guardian of the property of an infant does not have to join in the action with the infant
(Bard) Except where otherwise prescribed by court order, certain parties, such as executors, trustees, and insured persons, may sue or be sued without joining the person for or against whose interest the action is brought.
1004- When joinder unnecessary
Sometimes Joinder is Unnecessary, for example the Guardian of the property of an infant does not have to join in the action with the infant
(Bard) Except where otherwise prescribed by court order, certain parties, such as executors, trustees, and insured persons, may sue or be sued without joining the person for or against whose interest the action is brought.
1006- lnterpleader - (Procedural) device to protect a person at risk with multiple liabilities+
A ___________ is a person who has made or may be expected to make a claim against a stakeholder.
claimant
1006- lnterpleader - (Procedural) device to protect a person at risk with multiple liabilities+
A ___________ may commence an action of interpleader against two or more claimants.
stakeholder
1006- lnterpleader - (Procedural) device to protect a person at risk with multiple liabilities+
When a debt or asset is claimed by two or more people, the third party in possession of the asset is the _________________ and may commence an action of interpleader against the two or more ____________ in order to protect themselves
STAKEHOLDER ……….. CLAIMANTS
1006- lnterpleader - (Procedural) device to protect a person at risk with multiple liabilities+
*There could be a ______________ when the stakeholder brings in another claimant by serving upon them a Summons, interpleader Complaint, and all prior pleadings.
defensive interpleader
1006- lnterpleader - (Procedural) device to protect a person at risk with multiple liabilities+
If a stakeholder seeks to bring in a claimant in an interpleader action as defense and there is a pending action between the claimant and the stakeholder based on the same claim, the court may ___________ the interpleader complaint, consolidate or jointly try the actions, or stay the pending action until final disposition of the interpleader action.
dismiss
1006- lnterpleader - (Procedural) device to protect a person at risk with multiple liabilities+
- (Bard) After all parties have filed their pleadings, the stakeholder may file a motion to be discharged from ___________
- The court may grant the motion and order the stakeholder to pay the disputed funds ___________ , deliver them to a designated person, or retain them in the action until further order.
- The court may order the stakeholder to pay the parties’ expenses, costs, and disbursements, and interest at the lowest discount rate of the Federal Reserve Bank of New York.
Liability.….. into court
1007-IMPLEADER/THIRD-PARTY PRACTICE (Third Party Plaintiff)
Impleader/Third-Party Practice:
- Used after the service of _____________
- A defendant may proceed against a party not a party to the action if it is believed by defendant that this person is liable to him
- Done by filing a third-party summons and complaint with the clerk of the court in the county in which the main action is pending, for which a separate index number (SHALL/SHALL NOT) be issued but a separate index number fee shall be collected.
an answer….. SHALL NOT
1007-IMPLEADER/THIRD-PARTY PRACTICE (Third Party Plaintiff)
A defendant serving a third-party complaint shall be styled a ______________ and the person so served shall be styled a _____________
third-party plaintiff….. third-party defendant
1007-IMPLEADER/THIRD-PARTY PRACTICE (Third Party Plaintiff)
- Service of a Third party complaint, summons, and all prior pleadings must be done in ___________ from filing.
- The original plaintiff must also be served to keep them in the loop.
- The third party defendant must then answer
120 days
1008- Answer of third-party defendant; defenses
- The third party defendant will answer by serving upon the _____________
- They may assert in their answer all defenses except that the original summons and complaint was not properly served or that jurisdiction was not obtained over the third party plaintiff.
- All other rights like the right to counter-claim, cross claim and appeal stand
third party plaintiff.
1009- Claim by Plaintiff against Third Party Defendant
The original plaintiff has ___________ from the service of the answer by the third party defendant, to amend his complaint without leave of the court to now sue the third party defendant directly
TWENTY(20) DAYS
- Dismissal or separate trial of third-party complaint.+
The court can separate these actions or dismiss the third party action if prejudice or delay may affect the _____________
primary claim
