MULTIPARTY LITIGATION

Question 1

You can sue as co-plaintiffs when cases:

Answer 1

1. Arise from the same transaction or occurrence (T/O)
2. Raise at least one common question

Question 2

The case has been filed. Now the court might force some nonparty (“absentee”) to join in the case.
– Why would a court force a nonparty into the case?

Answer 2

Because the absentee is necessary or required

Question 3

Who are Necessary and Indispensable Parties?

Answer 3

An absentee (A) who meets any of these tests:

1. Without A, the court cannot accord complete relief among existing parties (worried about multiple suits); OR
2. A’s interest may be harmed if he is not joined (practical harm); OR
3. A claims an interest that subjects a party (usually D) to a risk of multiple obligations.

Question 4

are joint tortfeasors necessary?

Answer 4

Never

Question 5

How can an absentee be joined?

Answer 5

First make sure he is necessary

NOW see if your joinder is “feasible.” It is feasible if:

1. there is PJ over you and
2. joining you will not goof up diversity jurisdiction (the court determines whether you would come in as a P or a D to see if bringing you in will goof up diversity).

If the joinder is feasible, The court orders the absentees joinder

Question 6

What happens if you (A) cannot be joined (e.g., no PJ over you)?

Answer 6

The court must do one of two things:

1. Proceed without the absentee or
2. dismiss the entire case

Question 7

When the absentee cannot be joined, and the court must make the decision whether to a) Proceed without the absentee or b) dismiss the entire case, How does the court make that decision?

Answer 7

It looks at these factors:

1. Is there an alternative forum available? (maybe some state court);
2. What is the actual likelihood of harm to you?
3. Can the court shape relief to avoid that harm to you?

Question 8

What happens if the court decides to dismiss rather than to proceed without the absentee?

Answer 8

Then we call the absentee indispensable

Question 9

What’s an impleader?

Answer 9

There, D is bringing in someone new. The new party
is the third-party defendant (TPD).

Question 10

If you have an impleader claim, must you assert it in this case?

Answer 10

No - its not compulsary

Question 11

What circumstances bring about impleader? When can we use it? Why do we?

Answer 11

• D can only do this only to shift the liability that he owes to P. In other words, if D is found liable to P, he will try to get 3rd Party D (TPD) to pay all or part of his own liability.
• So an impleader claim is usually for indemnity (TPD has to cover the full claim) or contribution (TPD has to cover a pro-rata portion of the claim).

Question 12

Steps for impleading the TPD in the pending case:

Answer 12

a. D files a third-party complaint naming the TPD; and
b. Serve process on the TPD. (So must have PJ over TPD.)

Question 13

Timing for Impeader

Answer 13

There is a right to implead within 14 days of serving your answer.

After that, you need court permission.

Question 14

After TPD is joined, may plaintiff assert a claim against TPD?

Answer 14

Yes, if the claim arises from the same T/O as the underlying case.

Question 15

After TPD is joined, may TPD assert a claim against plaintiff?

Answer 15

Yes if the claim arises from the same T/O as the underlying case.

Question 16

Subject Matter Jurisdiction & Impleader

Answer 16

Remember to assess each claim separately for subject
matter jurisdiction. Try diversity and federal question. If neither works, try supplemental jurisdiction.

There does not need to be diversity between the 3rd party D and the P, but there does between both of the Ds.

Question 17

What is Intervention?

Answer 17

Here, the nonparty brings herself into the case. She chooses to come in either as P (to assert a claim) or as D (to defend a claim).

The court may realign her if it thinks she came in on the “wrong” side.

Application to intervene must be “timely.”

Question 18

What are the types of Intervention?

Answer 18

1. Intervention of right
2. Permissive intervention

Question 19

Intervention of Right

Answer 19

Intervention of Right occurs when you would be a necessary. Same rules. Thus if you are necessary, you may intervene

Question 20

Permissive intervention

Answer 20

A’s claim or defense and the pending case have at
least one common question.

Discretionary with court.

Usually OK unless intervention will cause delay or prejudice to someone.

Question 21

Intervention and SMJ

Answer 21

Assess claim by/against the intervenor for subject
matter jurisdiction (diversity or FQ. If neither applies, then try supplemental).

Question 22

Class Action

Answer 22

Representative(s) (“Rep”) sues on behalf of group.

Question 23

Initial Requirements for Class Action and what about them

Answer 23

Must demonstrate all four of these:

1. Numerosity
   
   • Too many class members for practicable joinder - no magic #
2. Commonality
   
   • There is some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke.
3. Typicality; and
   
   • Rep’s claims are typical of those of the class
4. Representative adequate
   
   • The class representative will fairly and adequately represent class.

Question 24

What are the next steps for class action ones the initial requirements are met?

Answer 24

Must fit the case within one of three types:

1. TYPE 1: “Prejudice”: class treatment necessary to avoid harm (prejudice) either to class members or to the non-class party.
2. TYPE 2: Class seeks an injunction or declaratory judgment because D treated the class alike.
   
   • example: Employment Discrimination
   • Cannot recover damages
3. TYPE 3: “Damages”: (Example: Mass Tort)
   
   1. common questions predominate over individual questions; AND
   2. class action is the superior method to handle the dispute.

Question 25

Whats a Prejudice type of class action all about?

Answer 25

Many people have claims to a limited fund of money. If they sue individually, the fund will be depleted before all claimants get to court. That would leave those later claimants with nothing. To avoid this harm, a class would allow everybody to recover at least a portion of her claim.

Question 26

Which type of class action requires notice?

Answer 26

Type 3 - Damages

Question 27

Rep’s complaint will say “class action.” But a case is not a class action until what?

Answer 27

Until the court grants a motion to certify it

Question 28

And when the court certifies the class action, it must:

Answer 28

1. “define the class and the class claims, issues, or defenses.”
2. And Appoint class council

Question 29

What is required of class counsel?

Answer 29

Class counsel must fairly and adequately represent the interests of the class

Question 30

In a Type 3 Damages Class Action - what else is required?

Answer 30

The court must notify class members that they are in a class. This means individual notice (usually by mail) to all reasonably identifiable members. The notice tells them various things, including:

(a) they can opt out;
(b) they’ll be bound if they don’t; and
(c) they can enter a separate appearance through counsel.

Question 31

Who pays to give this notice in Type 3 Damages Class Actions?

Answer 31

The representative

Question 32

Who is bound by the judgment in a certified class action?

Answer 32

It is all members except those who opt out of a Type 3 damages class action.

There is no right to opt out of a Type 1 or Type 2 class action.

Question 33

Can the parties settle or dismiss a certified class action?

Answer 33

Only with court approval

In all three types, the court gives notice to class members to get their feedback on whether the case should be settled or dismissed.

If it’s a Type 3 class, the court
might give members a second chance to opt out.

Question 34

How is Diversity for SMJ satisfied in class action?

Answer 34

For citizenship, consider only the rep (ignore other class members’ citizenships).

The reps claim must exceed $75,000

That means: As long as the rep is diverse from all defendants, and as long as the rep’s claim exceeds $75,000, the class action will invoke diversity.

Question 35

Class Action Fairness Act (CAFA)

Answer 35

This grants subject matter jurisdiction separate from diversity of citizenship jurisdiction.

It lets a federal court hear a class action (of at least 100 members) if any class member (not just the representative) is of diverse citizenship from any defendant and if the aggregated claims of the class exceed $5,000,000.

This makes it easier for interstate class actions to go to federal court.

• There are complicated provisions to ensure that local classes (where most class members and the primary defendants are citizens of the same state) do not stay in federal court; they get dismissed (or, if they were removed from state court, are remanded to state court).