Joinder Flashcards
2 Step Process - Joinder (Broad Questions)
- Is it okay under the Federal Rules of Civil Procedure
- Okay under SMJ (Div / FQ)?
Remember: Every single claim in federal court MUST have SMJ
Claim Joinder by Plaintiff with Single Defendant
Plaintiff can assert any claim, even those unrelated, if the Defedent is the same in every claim
Claim Joinder with Multiple Plaintiffs and Defendants (2 Needs)
- Claims must arrive from the same transaction or Occurrence (“common nucleus of operative facts”)
- Claims share a common question of law or fact
Necessary and Indispensable Parties - 2 Part Test
- Is missing party necessary (If no, 12(b)(7) motion is denied)
- If yes than:
i) join missing party unless you can’t because of lack of PJ or missing party destroys SMJ
ii) if you can’t join, determine whether missing party is indispensable
Who is a necessary party? Must meet 1 of 3 Tests
- Without party (A), the court cannot accord complete relief among existing parties (worried about multiple suits); OR
- A’s interest (property interest) may be harmed if he is not joined (practical harm); OR [most likely one tested on BAR]
- A claims an interest that subjects a party (usually the D) to risk of multiple obligations
Are joint tortfeasors necessary parties?
Fuck no, never are
Once you determine a party is necessary, now what makes the party feasible? (2 prongs, the second step in the Necess/Indispensible Test)
1) is there PJ over party
2) Joining the party won’t ruin SMJ
If the party is necessary and feasible, what happens?
Court orders the absentee party be joined
If the party can’t be joined, the court must do one of two things. What are the options?
- Proceed without absentee; or
- Dismiss Case
Counterclaim Definition
A claim against an opposing party (usually D to P)
After D serves a counterclaim against P, what must P do?
Answer or make a motion within 21 days of service
What are the two types of counterclaims?
- Compulsory
- Permissive
Compulsory Counterclaims Definition and Requirements
Arises from the same t/o as P’s claim, unless you have already filed claim in another case
MUST file in pending case or the claim is WAIVED
Compulsory Counterclaims are the ONLY COMPULSORY CLAIM IN THE WORLD
Permissive Counterclaims Definition and Requirements
Does NOT arise from same T/O as P’s claim
NOT required to assert in this case, may sue separately
Crossclaim Definition
A claim against a co-party. It MUST arise from the same T/O as the underlying action. NOT compulsory - can assert or sue separately
If D1 sues D2, what can D2 do?
The Ds become opposing parties meaning that D2 can assert a counterclaim against D1 – Counterclaim rules then apply
Impleader Definition
A defending party is bringing in some one new – a 3rd party defendant (may call this third-party practice on bar)
When can D bring in a TPD?
Can only bring in TPD if D can say to TPD “if I owe P, then TPD has to pay some or all of award” (Flow through liability)
Claims (2) for Flow Through Liability
- Indemnity (full payment)
- Contribution (Pro rate portion)
How long do you have to implead?
There is a right to implied within 14 days of serving your ANSWER. After that you need court permission
After TPD is joined, may P assert a claim against TPD?
Yes, if the claim arises from the same T/O as the underlying case –> Must satisfy SMJ
After TPD is joined, may TPD assert a claim against P?
Yes, if the claim arises from the same T/O as underlying case –> Must satisfy SMJ
Intervention Definition
A nonparty brings themselves into the case. Application to intervene must be “timely”
Intervention of Right
Parties interest may be harmed if she is not joined and is not adequately represented now
Same as test (2) for necessary parties
Permissive Intervention
Parties claim/defense and the pending claim have at least one common question
Class Actions - 4 Requirements that MUST be Met
- Numerosity
- Commonality
- Typicality
- Representative Adequate
Numerosity
Too many members for practical joiner – NO magic number
Commonality
There is some issue in common to all class members, so resolution of that issue will generate answers for everyone in one stroke
Typicality
Rep’s claims are typical of those of the class
Representative Adequate
The class Rep will fairly and adequately represent class
Type of Class Action - Must satisfy ONE of three
- Prejudice
- Injunction or declaratory judgment
- Damages
Prejudice Class Definition
Class treatment necessary to avoid harm whether to class members or to the non-class party
Injunction or Declaratory Judgment Class Def
Class seeks an injunction or declaratory judgment because D treated the class members alike
ex) Employment discrimination
Damages Class - 2 Requirement {Stricter Hurdle}
1) Common questions PRE-DOMINATE over individual questions; AND
2) Class action is the superior method to handle the dispute
Rep’s Complaint will say “class action,” but case is not a class action until what? (3 Things)
- Court certifies it as such
- Define the class and the class claims, issues, or defenses
- Appoint class counsel
Class Action Appeal Exception
Usually you can’t appeal until action has closed, BUT if you lose on the class certification motion you may seek appeal
If the class is a Damages Class, the court must notify members that they are in a class individually. What does the notice tell them? (3 Things)
NOT required for Type 1 or 2; Representative pays for notice
- They can opt out
- They’ll be bound if they don’t
- They can enter a separate appearance through counsel
Who is bound by the judgment in a certified class action?
All class members who DO NOT opt out
Can the parties settle or dismiss a certified class action?
Not without Court approval
SMJ for Class Actions
FQ or Diversity
SMJ Diversity Rules (Class Actions)
- For citizenship we only consider the Rep (ignore other class members)
- For amount in controversy, the Rep’s claim must exceed 75K (ignore other class members’ claims)
