Joinder Flashcards
counterclaim
suit against party suing you
joinder
P can bring all claims against a single D, related or not.
refusal to bring a related claims
preclusion will bars litigation of omitted claim
Permissive counter claim
claim not arising out of transaction or occurrence underlying P’s action.
D can but not required to file permissive counterclaims
compulsory counterclaim
arises out of same transaction or occurrence underlying P’s claim
Must file compulsory counterclaims or be barred by law of joinder
multiple counterclaims
multiple unrelated counterclaims are OK
related counterclaims must be brought or forfeited
Cross Claims
Claim filed against a co-party
only filed if arising under same transaction or occurrence
as P’s claims against D’s
Claims joined with Cross Claims
D files cross claim against co-D,
co-D is free to respond with a cross claim.
Subsequent cross claim may be compulsory or permissive
Impleader Claims
claim brought by party defending claim
against a party not yet involved
only if claim alleges 3rd party is responsible for D’s liability
Classic Impleader Claims
Indemnification
Contribution
Timing of Impleader
automatic right to implead 3rd party D within 14 days of serving answer
after 14 days only with permission of court
Subsequent Claims after Impleader
impleaded party may bring claims against parties
or implead additional parties.
Original P may file claim against impleaded D if claim arises under the same transaction or occurrence
Permissive Joinder
claim arises out of the same transaction or occurrence
and
there are common questions of law or fact
Mandatory Joinder - 3 step analysis
- Necessary party - complete relief cannot be granted without or have interest that might be impaired if left out
- Can they be joined - court have PJ over party? will adding party destroy jurisdiction based on diversity of citizenship?
- If cannot be joined, are they indispensable?
Indispensable party considerations
extent of prejudice to missing party
prejudice can be lessened by shaping relief
whether P will be able to find relief in another forum
goal is to see dispute resolved with as little prejudice to missing party
Class Action Defined and when permitted
Where one person (representative) litigates on behalf of a group (class)
Permissible if
- a class can be formed
- action is of the sort proper for resolution via class action
Class formation Requirements (4)
Numerosity
Commonality
typicality
Representativeness
Numerosity Requirement
Class is so numerous that joinder is impractical
Commonality Requirement
common questions of law or fact
Typicality Requirement
Claims of representative parties are typical of the class ensure incentive to litigate to protect the class
Representativeness requirement
representative parties will fairly and adequately represent the class
considers experience of attorney if it might adversely impact the interests of the class
Considerations - is lawsuit proper for adjudication as a class
- Separate actions risk of inconsistent judgements or impair non-party interests
- Where party opposing the class has acted in ways generally applicable to the class. (unlikey where class seeks monetary relief)
- Where common questions of law or fact predominate over individualized questions and a class action is superior to other available methods for the fair and efficient adjudication of the matter
Personal Jurisdiction in Class Action
Court needs PJ over named parties - P’s and D’s
Does not need PJ over class
Binding effect of Class Action Judgement
judgement will bind all members of the class unless they opt out
Class members will have the option to ‘opt out’ in “common question class actions
Common Question Class Actions
have common questions of law or fact
members given notice of pendency of suit
notice reasonably calculated to apprise members of the class often accomplished by mail or public notice
