Joinder Flashcards
May a third-party beneficiary sue in his own right?
Yes–even if not mentioned in the contract
How may P sue joint obligors/tortfeasors?
Can sue one, some, or all at her option
* Fact she may be barred as to one does not affect right to sue others
* Fact she settles with one does not have impact on right to sue others (but could reduce judgment by amount received in settlement)
How may a partnership sue or be sued?
May sue or be sued in their individual names “doing business under the firm name X” OR in the partnership name
How may an executor or administrator sue/be sued?
- If related to acts of decedent, in representative capacity (and case caption will indicate capacity)
- If related to acts by this person indivudally, can sue in either capacity, but can only be sued in individual capacity
Who is a minor in VA?
Someone under 18 that hasn’t been emancipated
How may a minor sue?
In her own name “by X, her next of friend”
* Court will not disturb choice of next friend unless conflict of interest or impropriety
* Judgment in favor of minor will not necessarily be distrubed for failure to sue through a next of friend
How may a minor be sued?
In his own name, but can ask clerk OR the court to appoint GAL, who must be present throughout trial
* If no GAL appointed, but minor represented by lawyer who has entered appearance for him, judgment valid with one exception
* Exception is that minor must have GAL in suit to encumber minor’s land
How may a person under disability be represented?
Typically there will be a formal incompetency proceeding resulting in appointment of a fiduciary (“committee”) to act for mentally incompetent person
* If a fiduciary is appointed, suit by or against person under disability will be by or against fiduciary
What happens if no fiduciary is appointed for a person under disability?
- If plaintiff, a guardian sues or, if none, person sues in his own name through next friend
- If defendant, case proceeds in the same way as if person were a minor
How may a convict sue or be sued?
- If in custody, cannot be sued individually–committee must be appointed
- If in custody, should not be able to sue and should have committee, but instituting suit waives failure to have committee appointed
What happens if P or D dies?
Cause of action survives, and P’s executor should make a motion to substitute himself as plaintiff (“survival and revival”)
* If change in sivil status other than death (e.g., disability/convicted), case survives, but must be revived in representative’s name
When must D file counterclaims?
- In CC, within 21 days of service of process on her
- In GDC, any time before trial (BUT CHECK SMJ)
When is a counterclaim compulsory?
NEVER–not waived, and D has choice of whether to assert, even if transactionally related
Must a counterclaim be transactionally related to P’s claim?
No–can be for any claim, under any theory, that D has against P
Against whom must P assert counterclaims in order to be valid?
Must be against P or all Ps
* If A and B sue D and D files counterclaim against only A, A can demur, which will be sustained
Must a counterclaim be served formally?
No–don’t need to serve a summons
How long does P (“counter-defendant”) have to respond?
21 days
May a counterclaim exceed P’s claim?
YES, but watch GDC jurisdictional limit
* If counterclaim for non-personal injury damages in GDC case exceeds $25,000, it cannot be asserted in GDC (would have to be separate case in CC)
Is a cross claim compulsory?
No–always permissive
Must a crossclaim be transactionally related to the underlying case?
Yes–same as federal
Against whom may a crossclaim be asserted?
One of several co-parties
* Compare with state counterclaim rules
What is unique about VA cross claims?
Historically, must have served with summons
* Present practice unclear–may be able to just mail or otherwise send as subsequent document
* Since no clear case law, note the historical rule
In CC, how long does crossclaimant have to file?
21 days from service of process on him
In GDC, when may crossclaim be asserted?
Any time before trial, but remember jurisdictional limits
How long does cross-defendant have to respond?
21 days
When is impleader appropriate?
When a defending party wants to join a third party from whom he will seek indemnity or contribution on the underlying claim against D
What is D’s pleading called?
Third-party complaint
When does D file third-party complaint?
Has a right to file not later than 21 days after he serves his first responsive pleading, otherwise needs leave of court
* In GDC, time is within 10 days after service, or up until trial date, whichever is earlier
What must D do to institute impleader?
D (now “Third Party Plaintiff”) must serve process on TPD because TPD is being sued
* Third-party complaint and summons
May P assert claims against TPD or vice-versa?
Yes–if they arise from the same transaction or occurrence as the underlying case
Whom may a defending party implead?
Anybody that may owe him contribution or indemnity on the underlying case (e.g., duty may arise from K)
May a tortfeasor seek contribution from a jointfeasor?
YES–if the tort is negligence and the case involves no moral turpitude
* However, cannot implead joint tortfeasor against whom P could not recover
Does VA recognize necessary parties and who are they?
Yes–absentees who should be made to join in the case
* Defined the same as in federal court
* VA also has a statute that allows court to order joinder of parties as the ends of justice requires
Does VA reocgnize the rule about indespensable parties that federal courts do?
Yes–may dismiss entire case rather than to proceed without absentee
* VA statute says no dismissal for nonjoinder without giving P chance to join A
What is interpleader?
Where a stakeholder of real personal property or money knows that there are others who claim a right to it
* Stakeholder may interplead all claimants rather than go through several suits
Does GDC have jurisdiction over interpleader actions?
Yes–can order interpleader as to property worth $25,000 or less
* Any amount for earnest money deposits in a land sale contract
* Cannot issue injunction against pursuing other related proceedings
What is CC jurisdiction over interpleader actions?
Only option available if stake is worth more than $25,000
* CAN enjoin parties from litigating in other proceedings
Is intervention available in GDC?
No–only in CC
Is there a right to intervene in VA?
No–absentee must make a motion and decision within discretion of court
What is the time limit to intervene?
No time limit prescribed, but watch for delay and prejudice
What relationship is required to intervene?
Claim or defense must be related to the case
* Look for intervention that would allow the court to wrap up the entire dispute if allowed
What is the procedure for intervention?
Petition for intervention filed with motion; if granted, intervenor-plaintiff files complaint and serves it formally with process
* If defendant-intervenor petition granted, they file answer
