Joinder, Severance, Impleader, Interpleader, Intervention, Subsitution, Indemnity

Question 1

How Claims Can Co-mingle in Various Arrangements

Answer 1

Joinder CPLR 601
- How many cause of action may the plaintiff bring against the defendant? How about counterclaims and cross claims?

Consolidated Trial CLR 602
- Marriage of actions – One caption, one verdict sheet, one judgment

Joint Trial CPLR 602
- Living together actions – The actions travel togehter for discovery and trial, but have separate captions, separate verdict sheets, separate judgments

Question 2

Showing Required for Joint Trial or Consolidation

Answer 2

• Common question of law or fact
• Can the Court order a joing trial or consolidate the action sua sponte?
• Joint Trial, Consolidated Trial or neither? – Multiple car accident? 2 passangers in a taxi?

Question 3

How Claims can be Somewhat or Very Separated

Answer 3

Severance CPLR 603
- The causes of action are completely separated entirely and drift awat from each other on the ocean of litigation

Separate Trials CPLR 603
- The cousin of Joint Trials. Actions travel together with a separate verdict, judgment and possibly even separate jury.

Grounds
- Confusion
- Prejudice
- After summary judgment - if an actio is dismissed it is also severed from any remaining causes of action

Question 4

Bifurcated Trial

Answer 4

• Uniform Rule
• Trying one part of the case separately from another part of the case
• -Verdict on liability then verdict on damages in a tort case
• • Standard procedure in the Second Department

Unified Trial
- Trial of the entire case together
- First Department standard procedure

Question 5

Joining Parties

Answer 5

• Permissive Joinder CPLR 1002
• Multiple Plaintiffs making claims OR Multiple Defendants defending claims
• -Arising out of the same transaction, occurence ot series of transactions or occurrences and with
• • A common question of law or fact

How about:
- Plaintiff rear ended by 2 different drivers 3 weeks apart in time?
- Multiple claims of medical malpractice?

Question 6

Necessary Joinder of Parties Defined

Answer 6

CPLR 1001(a) A party is a necessary party to an action if she is needed to allow for complete relief between the parties who are already in the action or that missing party might be inequitably effected by a judgment in the action.

Question 7

Necessary Joinder of Parties Procedure

Answer 7

Defendant moves to dismiss for failure to join a necessary party. [CPLR 3211(a)(10)]

If court determines that the party is in fact a necessary party the courty will order that party summoned into the action.

If jx cannot be obtained, the court can:
- Dismiss the action; or
- Allow the action to proceed without that necessay party, considering
- - Whether the plaintiff has a remedy if the action is dismissed;
- - Will defendant or missing party be prejudiced;
- - Who caused the prejudice;
- - Whether the court can fashion a protective remedy;
- - Whether a effective judgment can be rendered in the absence of the necessary party

Question 8

Who gets to sue?

Answer 8

• Only aggrieved parties
• CPLR 1004
• FOR EXAMPLE:
  – Executor/Administratorcansueonbehalfofanestate
  – Guardianonbehalfofinfant’sproperty
  – Committeeonbehalfofadeclaredincompetent
  – Insuredpersonwhohassignedsubrogationtoinsurancecompany

Question 9

Interpleader CPLR 1006

Answer 9

• Stakeholder faces the possibility of multiple liability from conflicting claimants
• Stakeholder – hold the thing of value (the “steak”) but does not claim ownership.
• Procedure – Stakeholder commences the action and the conflicting claimants are named as defendants and are required to duke it out
• Stakeholder wins a judgment directing the stakeholder to give the property to one or more of the conflicting claimants.

Question 10

Impleader – AKA Third Party Practice More Parties make a Big Happy Party CPLR 1007

Answer 10

CPLR 1007 1007
An action against a third party claiming the action
agains third party is entirely or partially
responsible for the claims against the First
Party Defendant

Defendant sues Third Party Defendant – claiming that Third Party Defendant is liable for all or part of plaintiff’s claim against defendant
* Often used in actions for Indemnification or Contribution.

Indemnify: Common law or Contract. 3rd party defendant has duty to pay all damages incurred by the defendant. (Also can be a cross claim.)
* Contribution: CPLR Article 14. Claim that 3rd party defendant also caused the damages and the jury will determine the percentage of liability between the defendant and the 3rd party defendant. (Also can be a cross claim)

Question 11

Impleader Procedure

Answer 11

• CPLR 1009 Within 20 days of service of 3rd party defendant’s answer, plaintiff may sue defendant directly
• CPLR 1008 3rd party defendant may assert any defenses that the defendant may assert.
• CPLR 1010 Court may sever the 3rd party action if it will unduly delay the main action.

Question 12

Impleader Caveat

Answer 12

• Plaintiff cannot jump over defendant to get to 3rd party defendant if defendant is insolvent or not liable.
• So it can be very important to bring in the
  3
  rd
  party defendant directly.

Question 13

Intervention CPLR 1012, 1013

Answer 13

• Outsider asks to join an action, claiming a stake in the outcome.
• By right – CPLR 1012 Examples:
  – State statute confers a right to intervene
  – State may intervene to support the constitutionality of a statute
  – Persons interests are not adequately represented and that person may be bound by the judgment
  – Action for disposition, distribution or, title or for damages to property and the person may be adversely affected by the judgment
• By permission – CPLR 1013
  – When persons claim or defense may have a common question of law or fact.
  – State statute gives court discretion to allow intervention

Question 14

Substitution of Parties

Answer 14

• As a result of various events, it sometimes becomes necessary to substitute one party for another. Examples.
• CPLR 1015 Death of party - Action survives
  – butdeathofpartydivestscourtofjurisdictionuntilapartywith capacity to represent the estate is appointed and substituted.
• CPLR 1016 Committee or Conservator will be substituted for a Party adjudicated incompetent
• See also CPLR 1017 - 1026

Question 15

Suits Against Unknown Parties CPLR 1024

Answer 15

*
If you do not know the party’s name after diligent efforts to obtain the name:
– Identify with as much of the name and identity as you know. Description should give notice and an opportunity to defend
– Identify the name through the litigation
– Use the true name from then on