Joinder Flashcards
what is a must have in a joinder claim
SMJ!!
list (2)
what must the claim have in regards to multiple Ps or multiple Ds
- claim arises from same T/O
- claim raises at least one common question of law or fact
list (3)
court might force a nonparty to join, what Q to ask to determine if adding the nonparty is the right move
- is the absentee necessary/required?
- note: joint tortfeasors are never _necessary_
- is they are necessary, can the absentee be joined?
- if they cannot be joined can the case proceed without them
three tests to determine if a party is necessary for joinder
- Can relief be completed? - without absentee court cannot complete relief
- Will interests be harmed? the absentee’s interest may be harmed
- Will the claim subject the D to multiple obligations? the absentee claims an interest that subjects a party (usually D) to multiple obligation
List (2)
how to determine if absentee can be joined
- is there PJ over absentee?
- is there federal SMJ over the claim by or against the absentee?
If the absentee cannot be joined what will the court do if the absentee is necessary? if they are not necessary?
necessary: dismiss the case
not necessary: proceed with the case
List (3)
What will court look at if the absentee cannot be joined?
- is there an alternative forum available?
- what is the actual likelihood of harm to the absentee and
- can the court shape relief to avoid the harm?
what is a counterclaim
claim against an opposing party
D serves counterclaim to P, how many days does P have to respond
21 days
types of counterclaims
- compulsory counterclaim
- permissive counterclaim
compulsory counter claim arises from
the same t/o
if a complusory counterclaim is not filed, what happens
it is waived!!
use it or lose it!!
what is a permissive counterclaiim
non-transaction claim aka does NOT arise from the same t/o
what is a must have in a counterclaim claim
SMJ!!!
(so diversity or FQ SMJ or try suppl jx if no diversity or FQ)
what is a crossclaim
claim against a coparty
a crossclaim arises from
the same t/o
is a crossclaim compulsory? what does this mean?
NO! meaning that is can be asserted in another case
what is an impleader claim
defending party brings in a third party
what is the point of an impleader aka what does it shift?
shifts liability from D to the 3rd party D
indemnity shifts liability?
completely so TPD has to fully pay
contribution shifts liability?
pro-rata so TPD pays a portion of the claim
is an impleader claim complusory?
no it is permissive
how is a 3rd party impleaded
- D filed a 3rd party complaint naming the TPD
- complaint formally served to TPD within 14 days of D’s answer
- court permission need if 14 days pass
After the TPD is joined can P assert claims against him and vice versa?
what is needed?
YES!!!
need same t/o and SMJ!
what is intervention
third party brings themselves into claim as a P to assert claim or D to defend claim
list (4)
to qualify for a class action, need
- numerosity
- commonality
- typicality and
- adequate representative
what is numerosity
too many ppl for regular joinder claim so do class action
what is commonality
some issue in common btwn class members
what is typicality
the class rep has claim that is typical of the claims of the class
what is an adequate representative
someone who fairly and accurately represents the class
after the four requirements for class action are met, what type of class actions can be used
- prejudice
- injunction/declaratory relief
- common question or damages
what is a prejudice type of class action
an action that claims it is necessary to avoid harm (prejudice) to class
rare
what is an injunction / declaratory relief class action
D treats class members alike so injunction / declaratory relief most appropriate remedies
what is needed for common question/damages class action
- common question must predominate over individual questions
- class action is the superior method to handle the dispute
often used in mass torts cases
common question/damages class action requires?
what can class members do?
notice to all class members
class members can opt out
under the Class Action Fairness Act (CAFA), fed ct can hear the class action if
- minimum of 100 members
- any class member (not just rep) is of diverse citizenship from any D
- claim exceeds $5 million
As between the P and the D, any claim that arises from the same T/O as a claim asserted against a party is a compulsory counterclaim—even if the party asserting the counterclaim is a plaintiff.
