Joinder Flashcards
What’s the rule regarding third party beneficiaries to contracts?
A third-party beneficiary can sue in his own right even if he’s not mentioned in the K.
What is the joint tortfeasor rule?
- P can sue one D,
- some of the Ds, or
- all of Ds at her option.
- The fact that she may be barred as to one does not affect her right to sue the others.
What is the rule regarding settlements against one defendant when there are multiple defendants?
The fact that she settles with one does not affect her right to sue the others
(although judgment against others can be reduced by amount received in settlement).
What is the rule regarding suing executors or administrators?
- If the case relates to acts of the decedent, you can sue or be sued in representative capacity.
- If it relates to acts by this person individually (enter contract with accountant to figure estate taxes), you can sue in either capacity but must be sued in individual capacity.
What does the survival and revival doctrine hold?
- If P dies while case pending, executor moves to substitute as P;
- If a party has change in civil status, e.g. incompetent/jail, case is revived in representative’s name.
- If D is incarcerated while the case is pending, P will revive the case against D’s committee.
In Circuit Court, D must file counterclaim within __ days of service of process on her.
21
Does a P need to be formally served D’s counterclaim?
No.
After the counterclaim is served, P (counter-defendant) has __ days in which to respond.
21
What is a nonsuit?
voluntary withdrawal or dismissal of a case.
What crossclaim rules are the same as federal?
- Permissive, never compulsory
- Must be transactionally related to the underlying case
- Can be asserted against one of several co-parties (different from state counterclaim).
What crossclaim rules are different from federal?
- historically, you have needed to serve the cross-claim with a summons.
- This might no longer be true, so all you need is to mail it or otherwise send it as a subsequent document
- But there is no clear case law. To be safe, we should follow the old practice.
For CC, the cross-claimant must file cross-claim within…
21 days of service of process on him.
For GDC, the cross-claimant must file cross-claim…
anytime before trial.
The cross-defendant has __ days in which to respond.
21
When does impleader occur?
As in federal court, 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 the impleading defendant’s complaint called?
Third-party complaint.
As in federal practice, must serve process on third-party defendant. Here, process would consist of:
Third-party complaint and summons.
Can P sue the third-party defendant and vice versa?
Yes, if the claims arise from the same transaction or occurrence as the underlying case.
A defending party can implead anybody who…
may owe him indemnity or contribution on the underlying claim.
What is interpleader?
- A holder of real property or personal property (including money) knows that there are others who claim a right to it.
- Rather than go through several suits, he wants to interplead – to force them to litigate in a single proceeding.
- Stakeholder can claim that he should be able to keep the property.
Circuit court is the only place to go for an interpleader if…
the stake is worth more than $25,000. The court can enjoin parties from litigating in other proceedings.
What are the other intervention rules?
- No time limits prescribed.
- Discretion of the court (watch delay and prejudice).
- Claim or defense in intervention must be related to the case. The court may be able to wrap up the entire dispute by allowing intervention.
- File petition for intervention. If granted, then the intervenor-plaintiff would file a complaint and serve it formally with process.
- Defending parties then respond as they would to any complaint. If granted, the intervenor-defendant files an answer in intervention.
How do you sue an incompetent?
If he has a substantial estate, there is a formal proceeding appointing fiduciary to act for the mentally incompetent person.
Then, you sue the fiduciary that was appointed (i.e., committee - french, guardian, conservator)
Hoe is an incompetent sued without a fiduciary?
Any judgment is invalid, unless both:
- incompetent represented by a lawyer who entered an appearance for her
- Suit is not to encumber incompetent’s land
