joinder Flashcards
claims by mult. Ps or against mult. Ds must:
(1) Arise from same transaction or occurrence and (2) Raise a common question of law or fact
necessary and indsipensable party
(1) necessary/required to action?
* (a) Without the absentee, the court cannot accord complete relief among the existing parties (worried about multiple suits); or
* (b) The absentee’s interest may be harmed if she is not joined; or
* (c) The absentee claims an interest that subjects a party (usually the defendant) to a risk of multiple obligations
(2) can absentee be joined?
* feasible if: PJ over absentee and fed SMJ over claim by or against absentee
(3) if absentee cannot be joined, can case proceed without them?
* proceed if (a) alt forum available, (b) actual harm to absentee is unlikely, (c) court can shape relief to avoid any harm
* othwerise, dismiss
counterclaim
part of answer
any claim back against complaining party– usually by D against P
* still need SMJ over CC (FQ or div) so if not, try for supplemental
cumpolsory (use it or lose it) if:
* arises from same transaction or occurrence
permissive:
* does not arise from same T/O
* not lost, can sue in seperate case
crossclaim
Claim against co-party arising from same transaction or occurrence
* not cumpolsory: can be asserted in another case
impleader aka third party claim
defendant brings in new party
* party bringing the claim is called a third-party plaintiff and the new party is called a third-party defendant (“TPD”)
for indemnity or contribution–
* impelader claim is used to shift to the TPD the liability that the D will owe to the P
* indemnity = shifts complete liability (TPD must cover the full claim)
* contribution = shifts it pro-rata (TPD must cover a pro-rate portion of the claim)
third-party claim must be derivative: If D is just alleging that he (the TPP) is not liable and that the TPD is, that is not derivative
always permissive
effect:
* 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
timing for impleader
defendant may serve a third-party complaint as of right within 14 days of serving his original answer
thereafer, must make a motion to serve the complaint, and it is within the trial court’s discretion whether to grant or deny the motion
class action requirements
(1) numerosity
* Too many class members for practicable joinder
* No magic number but think about if too many there together it would be cumbersome
(2) 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
(3) typicality
* The class rep’s claims are typical of the claims of the class.
(4) adequate representative
* The class rep will fairly and adequately represent the class
class action types
once meet reqs, then have to fall into one of these types:
prejudice– class treatment necessary toa void harm (prejudice) either to class memebrs or to the non-class party
injunctive or declaratory relief– D treated class members alike
common Q or damages– (1) Common questions must predominate over individual questions and (2) the class is a superior method to handle the dispute
* for this type, need to notify class members that they are in a class and tell them they can opt out, or will be bound by the judgment and can enter sep appearance thru counsel
settlement of class actions
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.
class action fairness act
grant of SMJ to FCs for class actions if
* there are at least 100 members
* any class member, not just the rep, is of diverse citizenship from any D; and
* the agrgeated claims of teh class exceed $5 million
Also, any one defendant, even an in-state defendant, may remove the case from state to federal court
