Joinder

Question 1

Purpose of joinder rules

Answer 1

Joinder rules define the scope of the case.

Determines how many parties and claims can be joined into one case.

Question 2

What is the rule for plaintiffs joining claims?

Answer 2

The plaintiff (or other party asserting a claim) may join any additional claim she likes, even if the additional claim is unrelated to an original claim. But, all the claims must invoke SMJ.

Question 3

When can plaintiffs sue together as co-plaintiffs?

(they need not, but may)

Answer 3

When their claims:

1. Arise from the same transaction or occurrence, and
2. they raise at least one common question.

Question 4

When can a plaintiff or co-plaintiffs sue more than one defendant?

(they don’t have to though)

Answer 4

When the claims against the defendants:

1. Arise from the same transaction or occurrence, and
2. raise at least one common question.

(same as permissive joinder of plaintiffs)

Question 5

Joining absentees

Answer 5

After the case is filed, the court might force some nonparty (‘absentee”) to join the case.

The court does this when the absentee is necessary.

Question 6

When is an absentee necessary (also called required)?

Answer 6

When:

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

Number 2 is most likely to show up on the bar exam.

Question 7

Are joint tortfeasors necessary?

Answer 7

No. Joint tortfeasors are never necessary.

Question 8

When does a party typically become necessary?

Answer 8

When the effects of the plaintiff’s win would hurt the party’s interests in some way.

e.g. canceling the party’s stock in a company

Question 9

Feasibility of joinder

Answer 9

After determining if a party is necessary, joinder must also be feasible.

joinder is feasable when:

1. There is PJ over the party, and
2. Joining the party will not goof up diversity jurisdiction.

(the court determines whether the party would come in as a P or
a D to see if bringing them in will goof up diversity).

Question 10

If joinder is found to be feasible, what happens next?

Answer 10

The court orders joinder of the absentee.

Question 11

If the necessary party cannot be joined, what must the court do?

Answer 11

1. Proceed without the party, or
2. dismiss the entire case.

Question 12

How the court decides what to do with a case when a necessary party can’t be joined

Answer 12

Always Look Sideways

It looks at these factors:

1. Is there an alternative forum available? (maybe some state court);
2. What is the actual likelihood of harm to the party?
3. Can the court shape relief to avoid that harm to the party?

Question 13

Indispensable absentee

Answer 13

if the court decides to dismiss instead of proceed with the case sans the necessary party, the absentee is labeled indispensable.

Question 14

What is a counterclaim?

Answer 14

A claim against an opposing party that is not the original claim bringing the lawsuit.

Question 15

After D serves a counterclaim against P, what must P do?

Answer 15

Make a rule 12 response within 21 days of service.

Question 16

What are the two types of counterclaims?

Answer 16

1. Compulsory:
   
   1. Arises from the same transaction or occurrence as the plaintiff’s claim.
   2. Unless the party has already filed the claim in another case, they must assert it in this case. (this is the only compulsory counterclaim in the world.)
2. Permissive
   
   1. Does not arise from the same transaction or occurrence as the plaintiff’s claim.
   2. The party need not file the claim in the case at hand, and can do so in a separate case.

Question 17

Timeline of compulsory counterclaim

Answer 17

Counterclaims that arise from the same t/o are only compulsory when D is required to answer.

e.g. D wins on an initial rule 12 motion. He can still bring what would have been a compulsory counterclaim as a plaintiff in another case.

Question 18

What is a crossclaim?

Answer 18

A claim against a co-party.

Question 19

requirement to assert a crossclaim

Answer 19

In order to assert a crossclaim, the claim must arise from the same t/o as the underlying action.

Question 20

Crossclaims are never…

Answer 20

compulsory. They may be asserted in the initial claim or separately.

Question 21

Every single claim, including counterclaims and crossclaims, must have SMJ.

What does a claimant do if it doesn’t?

Answer 21

Try for supplemental jurisdiction.

Question 22

P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). It’s a
diversity case in federal court. Sterling doesn’t know who’s at fault between the two drivers, but knows his car (worth $200,000) is totaled.

What should Sterling do?

Answer 22

File a compulsory counterclaim.

Question 23

P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). It’s a diversity case in federal court. Sterling doesn’t knowwho’s at fault between the two drivers, but knows his car (worth $200,000) is totaled.

Sterling files a compulsory counterclaim against P.

Does sterling’s counterclaim have SMJ?

Answer 23

Yes, it’s against P, a citizen of a different state, and the AIC is over $75,000.

Question 24

P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). It’s a diversity case in federal court. Sterling doesn’t knowwho’s at fault between the two drivers, but knows his car (worth $200,000) is totaled.

Sterling files a compulsory counterclaim against P.

What can sterling do in the event Draper is liable for the wreck?

Answer 24

File a crossclaim against Draper. He need not do this in P’s action though.

Question 25

P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). It’s a diversity case in federal court. Sterling doesn’t knowwho’s at fault between the two drivers, but knows his car (worth $200,000) is totaled.

Sterling files a compulsory counterclaim against P.

Sterling also files a crossclaim against Draper. Do they have SMJ? If not, what should Sterling do?

Answer 25

No SMJ because they’re citizens of the same state. Sterlling should seek supplemental jurisdiction.

Question 26

P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). It’s a diversity case in federal court. Sterling doesn’t knowwho’s at fault between the two drivers, but knows his car (worth $200,000) is totaled.

Sterling files a compulsory counterclaim against P.

Sterling also files a crossclaim against Draper, but no SMJ.

How likely is sterling to receive supplemental jurisdiction?

Answer 26

Very likely. Sterling’s claim against Draper arises from the same transaction or occurrence as the intial case.

Question 27

P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). It’s a diversity case in federal court. Sterling doesn’t knowwho’s at fault between the two drivers, but knows his car (worth $200,000) is totaled.

Sterling files a compulsory counterclaim against P.

Sterling also files a crossclaim against Draper, but no SMJ.

Sterling fits the test for supplemental jurisdiction.

Does the limitation on supplemental jurisdiction apply?

Answer 27

No, because Sterling is not the plaintiff in the original case.

Question 28

P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). It’s a diversity case in federal court. Sterling doesn’t knowwho’s at fault between the two drivers, but knows his car (worth $200,000) is totaled.

Sterling files a compulsory counterclaim against P.

Sterling also files a crossclaim against Draper, but no SMJ.

Sterling fits the test for supplemental jurisdiction.

If Draper has a claim he wants to file against Sterling what would it be?

Answer 28

A counterclaim against draper. It will either be compulsory or permissive depending on the facts alleged in the complaint.

Question 29

Claims that start with the letter _ involve bringing in someone new.

Answer 29

I

Question 30

What is an impleader?

Answer 30

An impleader is when a defending party (D or counterclam plaintiff) is bringing in someone new. The new party is the third-party defendant.

(also called third-party practice).

Question 31

Only reason D can assert an impleader

Answer 31

• The defendant can assert an impleader only to shift his liability to plaintiff onto a third party.
• So, if D is found liable, he will try to get the third-party defendant to pay all or part of his own liability.
• This is almost always a claim for indemnity or contribution.

Question 32

What is indemnity and contribution?

Answer 32

Indemnity shifts it completely (so TPD must cover the full claim).

Contribution shifts it pro-rata (so TPD must cover a pro-rata portion of the claim).

Question 33

What are the steps for impleading the third party defendant in the pending case?

Answer 33

1. D files a third-party complaint naming the TPD, and
2. Serves process on the TPD.

Question 34

Jurisdiction of a third-party defendant

Answer 34

In order to properly add a third-party defendant as a party to the case, the court must have PJ over the defendant.

Question 35

Defendant’s right to implead

Answer 35

Defendant has a right to implead within 14 days of serving his answer.

After that, he needs court permission.

Question 36

Original plaintiff claim against TPD

Answer 36

Original plaintiff may assert a claim against `TPD if the claim arises from the came T/O as the underlying case.

Question 37

TPD claim against plaintiff

Answer 37

After TPD is joined, they may assert a claim against plaintiff if the claim arises from the same T/O as the underlying case.

Question 38

Third party claim jurisdiction

Answer 38

Each claim must have subject matter jurisdiction. If no SMJ, try for supplemental jurisdiction.

Question 39

Defendant impleader of a party from the same state as Plaintiff

Answer 39

If the defendant impleads a party that is from the same state as the plaintiff, SMJ is not defeated, because the plaintiff is not a party to the third-party claim.

Question 40

If the plaintiff makes a claim against the third-party plaintiff, and they are both from the same state, is SMJ defeated?

Answer 40

Yes, because there is now a claim between plaintiff and the third party. Must seek supplemental jurisdiction.

Question 41

What is intervention?

Answer 41

When a nonparty brings herself into the case.

Question 42

Realignment of intervening party

Answer 42

An intervening party can come in as a plaintiff or defendant, and the court may realign the party if it thinks she came in on the “wrong side”.

Question 43

Application to intervene requirement

Answer 43

The application to intervene must be timely.

Question 44

Intervention of right

(most likely on exam)

Answer 44

When the intervening party’s interest may be harmed if:

she is not joined and is not adequately represented.

(same test for necessary parties)

if the intervening party mets this test, she has a right to intervene.

Question 45

What is permissive intervention?

Answer 45

When the absentee’s claim or defense and the pending case have at least one common question.

Question 46

Permissive intervention discretion

Answer 46

Permissive intervention is discretionary with the court and is usually okay unless the intervention will cause delay or prejudice to someone.

Question 47

Jurisdiction of intervened case

Answer 47

If someone successfully intervenes, you must also test to see whether the intervention meets SMJ.

Question 48

If the intervening claim doesn’t have SMJ, what should the intervenor do?

Answer 48

Try for supplemental jurisdiction.

Question 49

Effect of intervening plaintiff on supplemental jurisdiction

Answer 49

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 50

What is a class action suit?

Answer 50

A suit in which a representative sues on behalf of a group.

Question 51

What are the 4 intitial requirements for a class action suit?

Answer 51

• Numerosity: Too many class members for practica- ble joinder. Is there a magic number? NO
• Commonality: There is some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke.
• Typicality: Rep’s claims are typical of those of the class; and
• Representative adequate: The class Rep will fairly and adequately represent class.

Question 52

You must have one of the three types of class action suits to bring a claim. What is Type 1?

Answer 52

• “Prejudice”: class treatment necessary to avoid harm (prejudice) either to class members or to the non-class party.
• Many Ps have claim to a limited fund.
• If they sue individually, the fund will be depleted before all claimants get to court.
• Class 1 would allow everybody to recover at least a portion of their claim.
• Very rare

Question 53

A type 2 class action is where…

Answer 53

The class seeks an injunction or declaratory judgment because the defendant treated the class members alike.

Example: employment discrimination.

Question 54

Can a Type 2 class action seek damages?

Answer 54

No.

Question 55

What is type 3?

the most likely to recover money

Answer 55

“Damages”:

(1) common questions predominate over individual questions; AND
(2) class action is the superior method to handle the dispute.

Example: A mass tort

Question 56

Certification of class action

Answer 56

Case is not a class action until the court grants a motion to certify a class action.

Question 57

What the court must do when it certifies the class action

Answer 57

• define the class and the class claims, issues, or defenses.
• Appoint class counsel (decides who the lawyer is)
  
  • Class counsel must fairly and adequately represent the interests of the class.

Question 58

Appeal of class certification motion

Answer 58

If you lose on the class certification motion, you may ask the court of appeals to review that decision.

It’s discretionary with that court.

Question 59

Notification requirement

Answer 59

• In a Type 3 class action suit, 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 tells them various things, including:
  
  • they can opt out;
  • they’ll be bound if they don’t; and
  • they can enter a separate appearance through counsel.

Question 60

Notice is only required in type(s)

Answer 60

3 only.

Question 61

Who pays to give the notice?

Answer 61

The representative.

Question 62

Who is bound by the judgment in a certified class action?

Answer 62

All class members except those who opted out of the type 3.

Question 63

There is no right to opt out of…

Answer 63

a Type 1 or Type 2 class action.

Question 64

Settlement or dismissal of class action suits

Answer 64

• Parties can settle or dismiss a certified class action only with court approval.
• In all three types, the court gives notice to class members to get their feedback on whether the case should be settled or dismissed.
• If it’s a Type 3 class, the court might give members a second chance to opt out.

Question 65

Jurisdiction requirement of class action cases

Answer 65

A class acton still needs to have SMJ.

• FQ
  
  • A class action might assert rights under federal law, which would invoke FQ.
• Diversity
  
  • Only rep’s citizenship and AIC counts