Joinder

Question 1

What is claim joinder?

Answer 1

Under the FRCP, a party may join any additional claim they have against an adverse party into a single action, even if the additional claim is unrelated to the original claim.

Question 2

What is required for a claim to be properly joined?

Answer 2

The court must have SMJ over the additional claim

Question 3

For joinder to be proper, claims by multiple plaintiffs or multiple defendants must: (2)

Answer 3

(1) arise from the same transaction or occurrence; AND

(2) raise at least one common question of law or fact

Question 4

Three questions to ask to determine whether an absent (non-joined) party is necessary and indispensable:

Answer 4

(1) Is the absentee necessary (or “required”)?
(2) If the absentee is necessary, can the absentee be joined?
(3) If the absentee can’t be joined, can the case proceed anyway?

Question 5

What does it mean for a party to be “necessary”? (3)

Answer 5

(1) Without the absentee, the court cannot accord complete relief among the existing parties (worried about multiple suits);
(2) The absentee’s interest may be harmed if she is not joined; OR
(3) The absentee claims an interest that subjects a party (usually defendant) to a risk of multiple obligations

NOTE: Joint tortfeasors are NEVER necessary.

Question 6

If an absentee is deemed to be necessary, a court will see if joinder of the absentee is “feasible.” Joinder is feasible if: (2)

Answer 6

(1) There is personal jurisdiction over the absentee; AND
(2) There will be federal subject matter jurisdiction over the claim by or against the absentee. (In determining whether the claim invokes diversity, the court “aligns” the absentee as a plaintiff or defendant based on the absentee’s interest.)

If joinder of the absentee is feasible, the absentee is simply joined to the case.

Question 7

If an absentee can’t be joined (e.g., there is no PJ), the court must determine whether to proceed without the absentee or dismiss the entire case by looking at these factors: (3)

Answer 7

(1) Whether there is an alternate forum available (e.g., state court)
(2) Whether there is actual likelihood of harm to the absentee
(3) Whether the court can shape relief to avoid that harm to the absentee

Question 8

If a court decides to dismiss a case rather than proceed without an absentee who cannot be joined, the absentee is called _______.

Answer 8

indispensable

Question 9

If a defendant serves a counterclaim against the plaintiff, the plaintiff must respond under Rule 12 within _______ of service of the counterclaim.

Answer 9

21 days

Question 10

Explain the two types of counterclaims.

Answer 10

(1) Compulsory: one that arises from the same transaction or occurrence as the plaintiff’s claim. Unless the counterclaim has already been filed in another case, the counterclaimant MUST file the compulsory counterclaim in the pending case or the claim is waived.
(2) Permissive: one that does not arise from the same transaction or occurrence as the plaintiff’s claim. The party is not required to file it in this case and can sue on the claim in a separate case.

Question 11

Explain crossclaims.

Answer 11

A crossclaim is a claim against a co-party. It must arise from the same transaction or occurrence as the underlying action, but it is not compulsory.

Question 12

What is an impleader claim? How is it used?

Answer 12

An impleader claim (i.e., third-party claim) is one where a defending party brings in a new party. The person bringing the impleader claim is the “third-party plaintiff,” and the party brought in under the impleader claim is called the “third-party defendant.”

Impleader claims are used to shift the liability that the defendant would owe to the plaintiff to the third-party defendant. If the defendant is found liable to the plaintiff and the third-party claim is successful, the third-party defendant will be liable for some or all of the defendant’s liability.

(Typically these will be indemnification claims.)

Question 13

What is the difference between indemnity and contribution in the context of third-party claims?

Answer 13

Indemnity shifts liability completely to the third-party defendant.

Contribution shifts liability pro-rata (the third-party defendant must cover some portion of the claim).

Question 14

Are impleader claims compulsory or permissive (or both)?

Answer 14

Impleader claims are always permissive.

Question 15

There is a right to implead a third-party defendant within _______ of serving the answer.

Answer 15

14 days (after that, court permission is needed)

Question 16

What is intervention?

Answer 16

When a nonparty absentee brings herself into the case, either as a plaintiff to assert a claim or as a defendant to defend a claim.

Question 17

What is intervention of right?

Answer 17

Intervention is “of right” when the absentee’s interest may be harmed if she is not joined and that interest is not adequately represented by the current parties.

Question 18

What is permissive intervention?

Answer 18

Intervention is “permissive” when the absentee’s claim or defense and the pending case have at least one common question of law or fact.

Permissive intervention is at the discretion of the court and is usually allowed unless it would cause delay or prejudice to one or more of the parties in the pending case.

Question 19

What is interpleader?

Answer 19

Interpleader applies if separate actions might result in double liability against a stakeholder. An interpleader suit permits a person/stakeholder to require two or more adverse claimants to the stake to litigate among themselves to determine which, if any, has the valid claim to it.

Question 20

What are the requirements for Rule 22 interpleader? (2)

Answer 20

(1) Complete diversity between the stakeholder and all adverse claimants and in excess of $75,000 in issue, OR
(2) A federal question claim

Normal service and venue rules apply.

Question 21

What are the requirements for statutory interpleader?

Answer 21

Diversity between any two contending claimants and $500 in issue

Service may be nationwide and venue is proper where any claimant resides.

Question 22

What is a class action?

Answer 22

A class action is a case in which representative(s) sue on behalf of a group

Question 23

What are the four initial requirements for a valid class action suit?

Answer 23

(1) Numerosity: there are too many class members for practicable joinder
(2) Commonality: there must be some issue in common to all class members, so resolution of that issue will generate answers for everyone at once
(3) Typicality: the class representative’s claims are typical of the claims of the class
(4) Representative adequate: the class rep will fairly and adequately represent the class

Question 24

What are the three types of class actions?

Answer 24

(1) Prejudice: class treatment is necessary to avoid harm (prejudice) either to class members or to the non-class party (rare)
(2) Injunctive or declaratory relief: seeks an injunction or declaratory judgment because the defendant treated the class members alike (plaintiffs generally cannot seek damages)
(3) Common question/damages: common questions must predominate over individual questions AND the class action is a superior method to handle the dispute (frequently used for mass torts)

Question 25

A case is not a class action until the court grants the motion to certify it as a class action. The court also must: (2)

Answer 25

(1) Define the class and the class claims, issues, or defenses
(2) Appoint class counsel, who must fairly and adequately represent the interests of the class

Question 26

In a Type 3 (“common question” or “damages”) class action, the court must notify all reasonably identifiable class members that they are in a class. The notice, paid for by the rep, tells the class members that they: (3)

Answer 26

(1) Can opt out
(2) Will be bound by the judgment if they don’t opt out
(3) Can enter a separate appearance through counsel

Question 27

The Class Action Fairness Act grants SMJ separate from diversity. It lets a federal court hear a class action if: (3)

Answer 27

(1) There are at least 100 members
(2) Any class member, not just the representative, is of diverse citizenship from any defendant
(3) The aggregated claims of the class exceed $5 million