Joinder

Question 1

What is the basic idea of joinder?

Answer 1

Joinder rules define the scope of the case—how many parties and claims can be joined in one case? Remember that every single claim in federal court must have SMJ. So two things must be true: (1) joinder must be allowed by the Federal Rules; and (2) there must be SMJ over the case.

Question 2

What is a claim Joinder by P?

Answer 2

Under the FRCP, claim joinder by the plaintiff is easy because the plaintiff (in fact, anyone asserting a claim) may join any additional claim she has against that adverse party—even if the additional claim is unrelated to the original claim. But this can’t be stressed enough: there must be SMJ over the claim too, and that’s frequently the bigger question. We covered SMJ earlier.

Question 3

What are the proper Ps and Ds?

Answer 3

Many cases are brought by one plaintiff against one defendant. But what if the plaintiff is planning the case and wants to have multiple plaintiffs or multiple defendants? The rule is that the claims by multiple plaintiffs or against multiple defendants must: (1) arise from the same transaction or occurrence (“T/O”); and (2) raise at least one common question of law or fact.

Question 4

Who are necessary and indispensible parties?

Answer 4

The case has been filed. Now the court might force some nonparty (“absentee”) to join in the case, usually on motion by the defendant. How do you tackle such a problem? There are three questions to ask:
• Is the absentee necessary (or “required”)?;
• If the absentee is necessary, can the absentee be joined?; and
• If the absentee can’t be joined, can the case proceed anyway?

Question 5

Is the absentee necessary or required?

Answer 5

Why would a court force a nonparty into the case? Because the absentee is “necessary” (or “required”). What does “necessary” (or “required”) mean? It means that:
• Without the absentee, the court cannot accord complete relief among the existing parties (worried about multiple suits); or
• The absentee’s interest may be harmed if she is not joined; or
• The absentee claims an interest that subjects a party (usually the defendant) to a risk of multiple obligations.
The second is the most likely one that you’ll encounter on the exam. And note that joint tortfeasors are never necessary.

Question 6

Can the absentee be joined?

Answer 6

If an absentee is labeled as necessary, a court will see if joinder of the absentee is “feasible.” Joinder is feasible if:
• There is PJ over the absentee; and
• There will be federal SMJ over the claim by or against the absentee. In determining wehther 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

What is the absentee cannot be joined?

Answer 7

What happens if the absentee cannot be joined (for example, there is no PJ over the absentee)? The court then must determine whether to proceed without the absentee or dismiss the
entire case. How does the court make that decision? It looks at these factors:
• Is there an alternative forum available? (maybe some state court);
• What is the actual likelihood of harm to the absentee?; and
• Can the court shape relief to avoid that harm to the absentee?
So “necessary” is an odd label; don’t let that trip you up. You don’t necessarily need a necessary party’s presence to continue with the case. It’s just necessary to join him if feasible. But if the court decides to dismiss rather than proceed without the absentee, the absentee is called “indispensable.”

Question 8

What are counterclaims?

Answer 8

A counterclaim is a claim against an opposing party. Once one party asserts a claim against another party, they are opposing parties. Any claim back against that party is a counterclaim. Usually, this is a claim by a defendant against a plaintiff. The counterclaim is part of the defendant’s answer. After the defendant serves a counterclaim against the plaintiff, the plaintiff must respond under Rule 12 within 21 days of service of the counterclaim. There are two types of counterclaims: compulsory and permissive.
a. Compulsory Counterclaims
A compulsory counterclaim is one that arises from the same T/O as the plaintiff’s claim. Unless the counterclaimant has already filed the claim in another case, she must file the compulsory counterclaim in the pending case or the claim is waived. That is, if you do not use it, you lose it. This is the only compulsory claim in federal court.
b. Permissive Counterclaims
A permissive counterclaim is one that does not arise from the same T/O as the plaintiff’s claim. Permissive means that a party is not required to file it in this case and can sue on the claim in a separate case.
c. Subject Matter Jurisdiction
As always, there must be subject matter jurisdiction over the counterclaim, so you should assess whether the counterclaim can invoke diversity or FQ SMJ. If neither of those works (maybe yes, maybe no, depends on facts), check to see if there is supplemental jurisdiction.

Question 9

what are crossclaims?

Answer 9

A crossclaim is a claim against a coparty. It must arise from the same T/O as the underlying action. But it is not compulsory; it can be asserted in another case.

Question 10

What is impleader (third party practice)?

Answer 10

An impleader claim (also called a third-party claim) is one where a defending party (usually the defendant) is bringing in a new party. As to the impleader claim, the party bringing the claim is called a third-party plaintiff and the new party is called a third-party defendant (“TPD”).

Question 11

What is the nature of the impleader claim?

Answer 11

An impleader claim is used to shift to the TPD the liability that the defendant will owe to the plaintiff. So if the defendant is found liable to the plaintiff, he will try to get the TPD to pay all or part of his own liability. Look for claims for indemnity or contribution.
a. Definitions of Indemnity and Contribution
Indemnity shifts liability completely (so the TPD must cover the full claim). Contribution shifts it pro-rata (so the TPD must cover a pro-rata portion of the claim).

Question 12

Is an impleader claim permissive?

Answer 12

An impleader claim is permissive, meaning that the defendant need not bring it in the current case. Remember that the only compulsory claim is the compulsory counterclaim.

Question 13

What is the process for impleading TPD into the case?

Answer 13

To implead a third party, the defendant must (1) file a thirdparty complaint naming the TPD and (2) have that complaint formally served (that is, served like an original complaint) on the TPD. There is a right to implead within 14 days of serving the answer. After that, court permission is needed.
a. TPD and Plaintiff May Assert Claims
After the TPD is joined, the plaintiff may assert claim(s) against the TPD, and the TPD may assert claim(s) against the plaintiff, that arise out of the same T/O as the underlying case.
b. But Subject Matter Jurisdiction Is Required
Remember to access each claim separately for SMJ. Try diversity or FQ SMJ first. Then, if neither works, try supplemental jurisdiction. And remember the limitation on use of supplemental jurisdiction in diversity cases: The limitation applies only to claims by the plaintiff, if at all, and a TPD is not a plaintiff.

Question 14

What is intervention?

Answer 14

A nonparty absentee uses intervention to bring herself
into the case. She chooses to come in either as a plaintiff to assert a claim or as a defendant to defend a claim. The court may realign the intervening party if it thinks the absentee came in on the “wrong” side. Application to intervene must be “timely.” Intervention can be “of right” or “permissive.”

Question 15

What is intervention of right?

Answer 15

If the absentee’s interest may be harmed if she is not joined,
and that interest is not adequately represented by the current
parties, intervention is “of right.” If this sounds familiar, it is
because this is basically the same test as one of the tests for
necessary parties. So for the same reason that an absentee
was “necessary” in Hypo 9A, that absentee would also have
a right to intervene.

Question 16

What is permissive intervention?

Answer 16

If the absentee’s claim or defense and the pending case have
at least one common question of law or fact, intervention
would be permissive and discretionary with court. Permissive
intervention is usually allowed unless it would cause delay or
prejudice to someone.

Question 17

Do you need subject matter jurisdiction?

Answer 17

Again, you must assess whether the claim by/against the
intervenor invoke diversity or FQ SMJ. If neither applies, then
you try supplemental. But remember that a claim by an intervenor plaintiff in a diversity case is a claim by a plaintiff, so the limitation on supplemental jurisdiction may apply.

Question 18

What is interpleader?

Answer 18

Interpleader has not been a hot topic for the exam in past
years, but you should be familiar with the terminology and
jurisdictional grounds just in case. 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,. There are two interpleader procedures
in the federal courts: Rule 22 interpleader and section 1335
interpleader (statutory interpleader).
• Rule 22 interpleader requires (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.
• Statutory interpleader requires only diversity between
any two contending claimants and $500 be in issue. Service may be nationwide and venue is proper where any
claimant resides.

Question 19

What is the jurisdiction needed for interpleader?

Answer 19

If the stakeholder makes no claim to the stake (that is, the
stakeholder is disinterested), and the claimants are all from
the same state, statutory interpleader would not be available even if the stakeholder and claimants are from different states. (Rule 22 interpleader would be available if the stakeholder is of diverse state citizenship from each claimant and the amount in controversy exceeds $75,000.) But if the stakeholder is interested in the stake, statutory interpleader potentially would be available; in such a case, the stakeholder is considered to be a claimant.

Question 20

What are class actions?

Answer 20

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

Question 21

What are the initial requirements for class actions?

Answer 21

To qualify for a class action, all four of the following must be
demonstrated.
a. Numerosity
Numerosity means that there are too many class members
for practicable joinder. There is no magic number.
b. Commonality
There must be some issue in common to all class members,
so resolution of that issue will generate answers for everybody in one stroke.
c. Typicality
The class rep’s claims are typical of the claims of the class.
d. Representative Adequate
The class rep will fairly and adequately represent the class.

Question 22

What are the types of class actions?

Answer 22

After satisfying these four requirements, the action still must
fall into one of three types of class actions.
a. Type 1 (“Prejudice”)
For Type 1 class actions, class treatment is necessary to avoid harm (prejudice) either to class members or to the non-class party. These types of class actions are rare.
b. Type 2 (“Injunctive or Declaratory Relief”)
A Type 2 class action seeks an injunction or a declaratory
judgment because the defendant treated the class members
alike. Plaintiffs in a Type 2 class action generally cannot seek
damages.
c. Type 3 (“Common Question” or “Damages”)
For a Type 3 class action, (1) common questions must
predominate over individual questions; and (2) the class
action is a superior method to handle the dispute. This type
of class action is frequently used for mass torts.

Question 23

Must the court the class?

Answer 23

The rep’s complaint will say “class action.” But a case is not a
class action until the court grants the motion to certify it as a
class action. The court also must:
• Define the class and the class claims, issues, or defenses;
and
• Appoint class counsel, who must fairly and adequately
represent the interests of the class.
However, the court rules on the certification motion, the
losing party can seek review from the court of appeals. It’s
discretionary with the court of appeals.

Question 24

What kind of notice must the class get?

Answer 24

In a Type 3 class action, the court must notify class members
that they are in a class. This means individual notice (usually
by mail) to all reasonably identifiable members. The notice,
paid for by the rep, tells the class members various things,
including that they:
• Can opt out;
• Will be bound by the judgment if they don’t opt out; and
• Can enter a separate appearance through counsel.
This notice is not required in Type 1 or Type 2 class actions.

Question 25

Who can opt out of a class and what is the binding effect of class action judgment?

Answer 25

There is no right to opt out of a Type 1 or Type 2 class action. 
All class members are bound by the judgment unless, in a 
Type 3 class action, they opt out.

Question 26

What is the settlement of class action?

Answer 26

The parties can settle or dismiss a certified class action only 
with court approval. And, in all three types, the court must 
give notice to the class members to get their feedback on 
whether the case should be settled or dismissed. If it’s a 
Type 3 class, the court also might refuse to approve the 
settlement unless members are given a second chance to 
opt out.

Question 27

Is there subject matter jurisdiction in class actions?

Answer 27

If the class action asserts rights under federal law, FQ jurisdiction may be used. For diversity cases, only the citizenship of the class rep is considered, and her claim must exceed $75,000. The claims of other class members are ignored. 
That means that as long as the class rep’s claim meets the requirements of diversity, the class action may use diversity.