Joinder

Question 1

What is the rule regarding the Joinder of Claims in 2-Party Suits (A v. B)

Answer 1

Rule: 51(a) permits parties to join together in the same proceeding as many claims as each may have against the other party. Joinder of tort claims with a divorce, when feasiable, is encouraged. Court must avoid awarding a double recovery

Question 2

What is the exception of the rule for the Joinder of Claims in 2-Party Suits (A v. B)

Answer 2

97(g) forbids tort counterclaims against contractual claims and vice versa unless one “arises out of or is incident to or is connected with same”

Question 3

What is the rule for the Joinder of Claims in Multiple-Party Suits

Answer 3

General Rule: when there are multiple parties however, those other parties may only join or be joined if the claims asserted by or against arise “out of the same transaction, occurrence, or series of transactions or occurrences” and if any question of law or fact common to all of them will arise in the action

Question 4

What happens when one plaintiff in a multi-party suit does not establish proper venue

Answer 4

➢ In a suit where more than one π is joined, each π must, independently of any other π, establish proper venue in the county where the suit is filed. A person unable to establish proper venue may not join or maintain venue for a suit as a π unless the person independently establishes that

1. Joinder or intervention is proper under TRCP
2. Maintaining venue in the county of suit does not unfairly prejudice another party to the suit
3. There is an essential need to have the person’s claim tried in the county in which the suit is pending and
4. The county in which the suit is pending is a fair and convenient venue for the person seeking to join in or maintain venue for the suit and for the persons against whom the suit is brought

Question 5

List the 3 methods a Defendant can join additional parties

Answer 5

1. A third-party petition
2. A counter claim
3. A cross-claim

Question 6

What is a Third Party Petition. See Rule 38

Answer 6

➢ ∆, as a third-party π, may bring in a person not a party to the action for indemnity or contribution purpose
➢ Rule 38(c) specifically prevents parties from joining insurance companies in tort cases unless the company is directly liable to the person injured by the statute or contract

Question 7

What if the π files a COA the day b/f the SOL runs, & by the time the ∆ has been served, the ∆’s counterclaim is time barred?

Answer 7

➢ The SOL is tolled for counterclaims and cross-claims until the 30th day after the date on which the party filing the claim is required to answer.
➢ Similarly, amended pleading also will relate back to the time the original action was filed for statute of limitations purposes, unless the new pleading is “wholly based on a new, distinct or different transaction or occurrence.”

Question 8

Define Interpleader

Answer 8

• A method by which claims and parties can be joined even though the claims technically may not arise from the same transaction or occurrence, and do not have common questions of law or fact.
• Typically involves a sum of money or other valuable property that is claimed by several parties.
• Allows a “stakeholder” (party that may be subject to liability from other competing claims on the same property) to bring all relevant parties into one lawsuit for resolution.

Question 9

Define Intervention

Answer 9

• New parties can intervene in an ongoing lawsuit by filing a plea in intervention
• Under Rule 60, a person or entity has the right to intervene as a matter of right. This party is not required to get the cts permission.
• The party who opposes the intervention has the burden to challenge it by a motion to strike
• The ct should not grant the objectors motion to strike if the intervenor has a justiciable interest in the case.
• A party has a justiciable interest if he could have brought the same action, or any part thereof, in his own name, or, if the action had been brought against him

Question 10

When can a trial court strike a plea in intervention?

Answer 10

a. The intervenor meets the justiciable interest test;
b. The intervention will not complicate the case by an excessive multiplication of the issues; and
c. The intervention is almost essential to effectively protect the intervenor’s interest

Question 11

The right to intervene often turns on a question of standing

Answer 11

➢ This is especially true in cases involving government agencies & the public interest. When a suit is brought to benefit the public at large, a citizen has no justiciable interest in the litigation.
➢ Delay is also a valid basis for denying intervention
➢ Decisions of the TC allowing or denying intervention or joinder in response to venue-statute attacks are subject to interlocutory appeal.

Question 12

Name Stuff that deals with Misjoinder of Claims

Answer 12

• Remedy for misjoinder is severance, not dismissal
• The pending suit is divided into 2 or more separate suits, each with its own cause number
• Each suit then proceeds independently, resulting in its own judgment

Question 13

Separate Trials

Answer 13

• Claims are merely tried separately, as opposed to being severed
• Claims remain in the original suit, but are tried and resolved separately

Question 14

Discretionary Severance

Answer 14

• Claims that are properly joined may also be severed
• Parties often do not want some claims joined with other claims as a matter of trial strategy – One party may believe that the evidence relevant to one claim will unduly prejudice that party when the fact-finder considers the other claims.
• TCs ruling on a motion to sever or for separate trials is subject to review only for an abuse of discretion.

Question 15

Elements that Must be Present for Proper Severance

Answer 15

➢ Controversy must involve more than one cause of action
➢ Severed cause must be one that would be the proper subject of a lawsuit if independently asserted
➢ Severed causes must be so intertwined as to involve the same identical facts and issues

Question 16

Bifurcation

Answer 16

• Involves trying issues, not entire causes of action, separately
• Often used as a tool of judicial efficiency because if Defendant wins liability phase, no need for trying evidence on damages
• Trying liability and damages together could prejudice jury
• Bifurcating only punitive damages eliminates the most serious risks of prejudice, while minimizing confusion and inefficiency

Question 17

Consolidation

Answer 17

• Rule 174(a) allows a court to consolidate suits pending before it if the suits “involve a common question of law and fact”
• Litigant seeking consolidation must demonstrate
a. That there are significant common questions;
b. That time and money can be saved by litigating actions together; &
c. Judicial economy and convenience that may be gained must be balanced against the likelihood that consolidation may result in delay, prejudice, or jury confusion.

Question 18

Default Judgments

Answer 18

• It’s common practice for a π who has sued several ∆s to ask for severance of the claim against any defaulting defendant before proceeding with the pretrial activities in the case against answering defendants
• Also, either party may ask for severance of a claim against a single ∆ who has suffered an adverse summary judgment.

Question 19

Compulsory Joinder of Claims

Answer 19

• Res Judicata (Claim Preclusion)
Prevents the relitigation of a claim or COA that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the prior suit.
➢ Same parties or privity
➢ Claim or COA that was brought or could have been brought (arising from the same transaction or occurrence)
➢ Previous case reached a final judgment on the merits

Question 20

Collateral Estoppel (Issue Preclusion)

Answer 20

Prevents relitigation of ultimate issues of fact or law (rather than entire COAs) actually litigated (not those that could have been litigated) and essential to the judgment in a prior suit.
o The issue decided in the first action must be identical to the issue in the pending action, & thus requires an evaluation of the jury’s verdict or the judges findings of fact.
o While the application of RJ requires that the parties in both suits be identical, CE only requires that the party a/g whom CE is asserted be a party in the prior litigation.
o The function of CE is to prevent a party from relitigating an issue that the party previously litigated and lost.
➢ If A v. C and C was liable then in the case of B v. C, A only has to prove damages a/g C because C has already had his day in court and lost
➢ But if A v. C and C was not liable in B v. C, then B v. C is allowed because B deserves his day in court.

Question 21

The compulsory counterclaim rule, like res judicata, precludes later litigation of claims that could have been brought in the prior suit.

Answer 21

A. A claim is compulsory under Rule 97(a) only if
➢ Within court’s subject matter jurisdiction
➢ Has not been filed elsewhere
➢ Is mature
➢ Arises out of the same transaction or occurrence
➢ Doesn’t require the presence of additional parties outside the court’s jurisdiction and
➢ Is against an opposing party

Question 22

B. In determining whether the counterclaim is within the court’s subject matter jurisdiction, remember that a court can reach below its minimum statutory limits if the claim arises from the same transaction or occurrence, but a court cannot reach above its jurisdictional limits.

Answer 22

Nothing on this side of the FUCKING card

Question 23

C. Opposing Parties: the CC rule requires a party to assert claims a/g an opposing party that arise out of the same transaction or occurrence that is the subject of the opposing party’s claim. This rule operates to bar subsequent claims only a/g an “opposing party;” I.e. a party that has asserted affirmative claims a/g the party now asserting the claims. RESTATED: unless you can be somehow called a “defendant” there are NO compulsory counterclaims. If the original ∆ is now a third party π b/c they have asserted a counterclaim a/g the original π, then the original π and the original ∆ could possibly have CCs to consider.

Answer 23

Nothing on this side of the FUCKING card

Question 24

“Compulsory” Joinder of Parties

Answer 24

A. TRCP 39: A person who is subject to service of process shall be joined as a party to the action if

1. In his absence complete relief cannot be afforded among those already parties, OR
2. He claims an interest relating to the subject of the action and is so situated that the disposition in his absence may
   a. As a practical matter impair or impede his ability to protect that interest OR
   b. Leave any of the persons already parties subject to a substantial risk of occurring multiple obligations

Question 25

B. If a person under (A) cannot be made a party, the court shall determine whether action should proceed anyway, based on the following factors:

Answer 25

1. To what extent a judgment rendered in the person’s absence might be prejudicial to him
2. Extent to which the prejudice can be lessened or avoided
3. Whether a judgment in the person’s absence will be adequate
4. Whether plaintiff will have an adequate remedy if the action is dismissed for non-joinder

Question 26

The effect
o If a person is an indispensable party, then any judgment rendered in a suit in which they were not included would be invalid, and res judicata would play no role.

Answer 26

NOTHING ON THIS GOD DAMN SIDE