Joinder & Preclusion

Question 1

Basic Unit of a lawsuit

Answer 1

ONE plaintiff bringing ONE claim against ONE defendant.

Anything else needs joinder rules

Question 2

Are courts strict when allowing joinder?

Answer 2

Under the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.

Question 3

What if I want to add a claim against a party I already have a claim against?

Answer 3

Rule 18
You MAY add all the claims you want against parties if you already have a claim against them even if they are not related. (Could shoot 4 arrows at same dude).

Question 4

What is the distinction between answering/asserting a defense and bringing a claim/counterclaim?

Answer 4

A claim/counterclaim is asking the court to do something for you. Asking for relief.
Defense doesn’t ask anyone for anything.

Question 5

When are counterclaims compulsory?

Answer 5

13a
A party MUST state as a counterclaim any claim that the pleader has at the time of service if the claim
(a) arises out of the same transaction or occurrence as the opposing party’s claim and
(b) does not require addition of another party who cannot acquire jurisdiction

Question 6

What does it mean to be part of the same transaction or occurrence?

Answer 6

• Term of art! (same concept as Rules 15c and 20)
• Transaction may comprehend a series of many occurrences, depending not upon the immediateness of their connection as upon their logical relationship.
• “Logical relationship between the two”
Vaguely related in time, space, witnesses, and evidence.

Question 7

What does it mean for a counterclaim to be compulsory?

Answer 7

The right to bring the claim in a later action is waived forever (if the opposing party catches it)

Question 8

Policy behind compulsory counterclaims

Answer 8

Efficiency (we will have lots of same witnesses, disco, etc and be talking about similar things)
Also prevents us from getting verdicts that are contradictory.

Question 9

If a counterclaim is not compulsory can a defendant still raise it?

Answer 9

Yes! See permissive counterclaims 13b

Question 10

Why would you or would you not raise a permissive counterclaim?

Answer 10

Why would you raise a permissive counterclaim?
• We are already here, let’s fight.
• May get a wholesale settlement (sure, I breached your K, but you stole my car a month ago, so let’s call it even).

Why would you not file a permissive counterclaim?
• Maybe you or the other lawyer is better at a certain type of suit than the other.
○ Sperino and employment law may choose not to file a breach of contract claim.
• Other practical issues or preferences.
Venue, judge, etc.

Question 11

What is a cross claim?

Answer 11

First arrow on the SAME SIDE of the lawsuit.
First arrow (crossclaim) governed by 13g. All other following arrows governed by normal rules 18 & 13a-b

Question 12

When are you allowed to bring a crossclaim?

Answer 12

13g
MAY bring crossclaim against a COPARTY (same side) if the claim arises out of the same transaction or occurrence of the original action OR relates to any property that is the subject matter of the original action.

Doesn’t add a party, but adds a claim on the same side of the v.

Question 13

Are crossclaims compulsory or permissive?

Answer 13

All crossclaims are permissive!

Question 14

Why must the first arrow of the crossclaim be of the same transaction or occurrence?

Answer 14

If not, when D gets sued, they could just go crazy on the other coparty about a bunch of unrelated stuff and make the suit about something entirely different hoping to take the focus off what the suit is supposed to be about.

Question 15

When is someone allowed to add a party? Both P and D

Answer 15

20a1 adds plaintiffs
20a2 adds defendants
MAY add/join if:
(A) same transaction or occurrence AND
(B) common question of law or fact to all ____ will arise in the action.

Usually, if there are transactionally related, there will be a similar kind of question. Easier to satisfy.

Question 16

Practical consideration of Party Joinder

Answer 16

• Smart attorney Sperino would face would plead everything against as many parties as possible to make it a company wide problem and expand the scope of discovery and admissible evidence.
D’s job is to try to shrink the relevance.

Question 17

Impleader

Answer 17

Rule 14
A defending party MAY file a claim against a nonparty third party defendant who is or may be liable for all or part of the claim against it.
Translation: “If I am liable, then this party legally owes me money because of a contractural or common law relationship

Question 18

What are your other options if you choose not to use impleader?

Answer 18

Can fight about it in a separate suit (MAY rule)
Can just trust that the person will pay up because of the relationship.

Question 19

Interpleader

Answer 19

Rule 22
When someone has possession of a piece of property but does not claim ownership of that piece of property. So property person says yo court, I don’t own this and two people are fighting about it so here you go you figure out who gets it.
Often with insurance policy
Ex: Policy to pay first 100k, don’t care who gets it.

Question 20

Intervention

Answer 20

R24
“Hey, what about me?”
“I have an important interest that is going to be affected by the outcome of this lawsuit and no one involved in the lawsuit is adequately representing my interest.”
Has to show that my interests are seriously impeded in the suit and will not be represented OR a statute allows me to intervene.

Question 21

What is a class action?

Answer 21

Rule 23
A named party or parties represent the interests of other non named parties.
The unnamed parties are going to be fully effected and bound by the judgment of the lawsuit as if they were fully involved in the underlying lawsuit.

Question 22

Class Certification Prerequisites

Answer 22

23a (must satisfy all)
1. numerosity
2. commonality
3. typicality
4. adequacy of representation

Question 23

What is the standard for numerousity?

Answer 23

Joinder has to be impractical
No magic number, more of a practical feel.
Would go under make sense or would a class action make more sense?
Generally, classes of 40+, but some cases require more.

Question 24

What is the standard for commonality?

Answer 24

• The commonality requirement in the rules simply state that the class members must have a common question of law or fact…
• Wal-Mart v Dukes (Dukes) changed this making the commonality requirement more difficult.
○ Plaintiffs must suffer same injury and the common question must be CENTRAL to the validity of each of the claims. Needs to be cohesion between these questions.
Court tells us to also focus on: Is there a common answer to the common question?

Question 25

What is typicality?

Answer 25

Are the named plaintiff’s claims similar enough (typical of) to the claims of the unnamed party’s claims that they can adequately represent their interests?

Arise from the same course of conduct that gave rise to the other class members’ claim and based on the same legal theory.

Question 26

What questions do we ask regarding adequacy of representation?

Answer 26

Is the class counsel adequate?
Is the attorney experienced enough to completely handle a class action?
DO the named parties have the time, inclination, and ability to prosecute the suit?

Question 27

How does 23a connect with 23b?

Answer 27

Must meet ALL requirements of 23a and then try to establish ONE of the 23b options

Parties often do try for every single 23b option.
With preference for 23b1-2 so they don’t have to spend the money to track down class members to ask if they want to opt out.

Question 28

Four Class options and their descriptions

Answer 28

23b1A - Inconsistent Adjudication
• establish class because individual class members would run the risk of inconsistent or varying results.
• Not just dissimilar results, but inconsistent/impossible.
○ D order to do X and ordered not to do X.
• Hardly ever used.

23b1B - Limited Funds Class
• Separate suits would affect another parties claims in ways that would substantially impair or impede their ability to represent their class.
○ Accident involves 50 people and D only has 2 million to pay out related to the accident.
§ Don’t want the first people to file suit to get the money and then screw the others, so there is a class.

23b2 - Equitable Relief
• The party opposing the class has acted on grounds that apply to the entire class and final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.
• Often used in civil rights and environmental cases.
• Cannot seek monetary damages and throw in injunctive to try to get this class. Must be primary seeking injunctive/declaratory.

23b3 - Predominance and Superiority
• Questions of law or fact common to class members predominate over any questions affective only individual members so a class action is superior to other available methods to fairly and efficiently adjudicate the controversy.
• Predominance and superiority.
○ Predominance = questions predominate over individual questions.
Superiority = Is class action mechanism the superior way to handle this?

Question 29

Why do we care so much about which category classes use?

Answer 29

23b1-2 classes are mandatory. Class members may NOT opt out. All people that fall into class will be bound.

23b3 class is not mandatory. Individual notice is required to each member of the class that can be found (name/address) through reasonable effort. This notice allows members to opt out.
The cost of finding and notifying is on the named plaintiffs, so they will want to avoid it.

Question 30

Additional class action considerations

Answer 30

Class settlements must be approved by the court - 23e
Court is the entity that appoints class counsel 23g
Some types of claims have different class action rules that are provided by statues (fair labor standards act)

Question 31

What are the different preclusion rules?

Answer 31

7th amendment—within the same case (minor)
13a compulsory counterclaim
Res Judicata
Collateral Estoppel

Question 32

What is res judicata?

Answer 32

TERM OF ART.
Claim preclusion.

Question 33

What is collateral estoppel?

Answer 33

TERM OF ART.
Issue preclusion

Question 34

If I see a potential preclusion issue on the exam, what should my analysis look like?

Answer 34

1. Do res judicata analysis.
2. Full stop. Forget res judicata exists.
3. Do collateral estoppel analysis.

Question 35

Why have preclusion? Policy

Answer 35

You can’t just keep trying claims over and over until you get a result you like. These doctrines encourage parties to go through the appellate process instead.

Question 36

Preclusion within the 7th amendment analysis

Answer 36

When you have both legal and equitable issues in the same suit. If you try equitable things first, it would be bound by preclusion doctrines by the facts already found by the judge. Same is true if jury first — judge would be bound.

Question 37

Elements of res judicata

Answer 37

1. same claim or cause of action
2. between the same parties or those in privity
3. final judgment
4. “on the merits”

Question 38

Res judicata element 1 explanation
Same claim or cause of action

Answer 38

Doesn’t mean what it says in plain English.
Add “or a claim that could have been brought/was available — transactionally related things that I knew about at the time and filed to raise.”

Question 39

Res judicata element 4 explanation
“on the merits”

Answer 39

Makes no sense. Not the real standard. That makes it seem like the facts have been litigated.
There are many situations where claims are precluded due to res judicata and no merits have been discussed at all
(examples: 12b6 or default)

Question 40

Res judicata element 2 explanation
between the same parties or those in privity… what is privity?`

Answer 40

A person that is so identified in interest with another that he represents the same legal right, including a mutual or successive relationship to rights in property.
Ex: estate relationship, successive owners of property, class action

Question 41

What is a situation when the joinder rules may/must language do not line up with res judicata preclusion?

Answer 41

R18 a party MAY bring different rights/claims to relief (ie. negligence, battery, etc.). However… since same TO and WAS available at the time, it would be precluded in a later suit if not joined.

Question 42

Two wrinkles of res judicata

Answer 42

1. Does not require plaintiff to add all available defendants (R20) but IF plaintiff chooses to add a defendant, the parties need to make sure they raise all available transactionally related claims.
2. Certain claims can only be brought in federal court. If the first suit was in state court, the federal claim is not barred in the second suit, even if it is related to the same TO.

Question 43

Collateral estoppel elements

Answer 43

1. First case ends in final judgment
2. same issue was litigated and determined in the first case
3. the issue was essential to the first judgment
4. the right person or party is being precluded

Question 44

Collateral estoppel
What does element 3 mean?
“the issue was essential to the final judgment”

Answer 44

We want to be sure that the judge or jury gave that issue their FULL energy or consideration.
If they could have found on multiple grounds, it is not clear that they did, we don’t get to use CE.
Be careful of general verdicts (may not provide sufficient information about how a jury ruled)

Question 45

Collateral estoppel
What if a judge/jury on first case found on an issue using two different alternate independent grounds?

Answer 45

Majority (federal) would not allow CE