Multiparty Litigation: Joinder and Class Actions Flashcards
Permissive joiner
To be either coπs or co-∆s
i. must arise from same T/O
ii. raise at least one common q
c. Then assess whether fed ct jdxn. diversity or FQ
Necessary/ indispensable party
a. Court pay force an asentee to join if that party is NECESSARY. 3 step test
1. without the absentee court cannot accord complete relief
a. worry about multiple suits, limited pot of money
2. absentee interest may be harmed if not joined (practical harm) OR
3. absentee claims an interest that subjects a party (usually ∆) to risk of multiple obligations
ii. (2 is most likely on the bar)
iv. for ex. absentee holds 1000 shares. π sues a co claiming π and absentee bought stock together and seeks to cancel the stock. absentee is necessary because his interest may be harmed if not joined.
iii. joint tortfeasors never necessary
b. Is joinder feasible
i. PJ
ii. joining you will not mess up diversity jdxn.
iii. if feasible→ court orders joinder
c. if joinder is not feasible, court must
i. proceed without absentee or dismiss entire case, look to factors:
1. is there an alternative forum
2. what’s the actual likelihood of harm
3. can the court shape relief to avoid the harm to absentee
iii. this is a rule 12(b) defense—dismiss for failing to join an indispensible party
Rule – joinder rules starting with c vs joinder rules starting with i
hint: two joinder rules starting with “c” – counterclaim and crossclaim. they are claims between existing parties. claims starting with “I” involve joining someone new to the case
Impleader
∆ is bringing in someone new. new party is 3p∆/ 3P practice
a. never compulsory. only compulsory claim is compulsory counterclaim.
b. can be used to shift to the 3P the liability the ∆ owes to π. how to spot
i. indemnity or contribution claim
ii. Indemnity is complete, contribution is pro-rata.
c. impleader is not if you think π got the wrong ∆!! impleader is “I did it but I don’t have to pay all of it”
d. steps for impleading 3p∆
i. ∆ files a 3P complaint naming the 3P∆ AND
ii. serve process on the 3P∆ (so must have PJ).
iii. right to implead within 14 days, after that you need court permission
iv. after 3P∆ is joined, π may assert a claim against 3P∆ if the claim is from same T/O
v. 3P∆ may counterclaim against the π if from same T/O
vi. 3rd party may assert against the π any defense that the 3rd party ∆ has to the π’s claim.
1. Protects the impleaded 3rd party ∆ where the 3rd party π (the other ∆) fails or neglects to assert a proper defense
vi. SMJ—remember to assess each claim separately for SMJ. if neither diversity nor FQ works try supplemental jdxn.
- P (MO) sues D (KS) in federal court for $100,000, invoking diversity. D impleads TPD (MO) for indemnification of the full $100,000. Is there SMJ over the impleader claim?
a. YES, diversity. Can also bring in under supplemental jdxn. Because P is not a party to this claim.
If D v. 3PD is under 75k, can still get it in under supplemental jdxn, bc same T/O and not a claim by a π.
If it were a counterclaim by a π and the 3PD is of the same state– cannot be brought in under supplemental jdxn. If under diversity, the π cannot use supplementla jdxn.
a. so if π wants to assert this crossclaim must go to state court
Intervention
3P bringing herself into the case either as a π or a ∆. court may realign if it thinks on the wrong side. Application to intervene must be “timely”
a. Intervention of right. – 3P interest may be harmed if not joined and not adequately represented now. same test for necessary parties.
b. Permissive intervention—3P claim or defense has at least 1 common question. usually ok unless will cause delay or prejudice
c. Remember, to be in federal court, must still have SMJ!!—assess whether diversity or FQ. then try supplemental. but if it’s by intervener π may be limited
Class action
where a rep sues on behalf of a group
a. requirements. all four are needed
i. nuberosity. too many for practicable joinder. no magic number. 25 might be enough.
ii. commonality- an issue in common to whole class. resolution of that issue will generate answers for everyone in one stroke.
iii. typicality—reps claims are typical as the class. same kind of pain
iv. rep is adequate—fair and adequate representation of the class
Type of class action
must satisfy one of three kinds
i. type 1: prejudice—where class treatment is necessary to avoid prejudice to either members or non-class party
1. for ex claim has limited fund of money. later claimants wouldn’t get to money in time.
ii. type 2: class seeks injunction or declaratory judgment because ∆ treated class members alike
1. fore ex employment discrimination.
iii. type 3: most likely. common questions predominate over individual questions AND class action is the superior method to handle the dispute.
1. for ex. mass tort. asbestos, cigarette. bus crash injuring 80 people has common q of whether driver was negligent. class action may be better than 80 separate suits
Granting motion for class action
c. case not class action until court gives motion to certify class action.
i. when certifying court must define the class and class claims, issues or defenses.
ii. court must also appoint class counsel when certifying the class action. must appoint the applicant best able to represent the class.
iii. class counsel must fairly and adequately represent the interests of the class
iv. if you lose on class cert motion, may appeal that decision.
When is notice to other class members required
d. In the type 3 class, the court must provide NOTICE to members that they are in the class. means individual notice (usually by mail) to all reasonably identifiable members.
i. they can opt out
ii. they’ll be bound if they don’t
iii. they can enter a separate appearance through counsel
iv. Notice NOT REQUIRED for type 1 or type 2
v. rep must pay to give notice
Who is bound by a class action
e. everyone is bound, except those who opt out of a type 3.
i. no right to opt out of type 1 or type 2
How to settle/ dismiss class action
f. Parties cant settle or dismiss a certified class action without court approval
i. if doing so, court will give notice to all class members to get feedback. If it’s type 3 might give members a second chance to opt out
SMJ of class action
g. SMJ of class action
i. if about a federal right, can be in fed ct, yes FQ
ii. state-law claims brought under diversity
1. for citizenship consider only the rep.
2. amount in controversy—reps claim must exceed 75k.
3. as long as the rep is diverse from all ∆s, and claim exceeds 75k, CA can get diversity
Class action fairness act
gives SMJ other than diversity. lets fed court hear a CA of at least 100 members if ANY class member is of diverse citizenship from ANY ∆ and the aggregated claims exceed $5mil. i. complicated provisions to ensure that local classes (where most class members and ∆s are of the same state_ don’t stay in fed ct. they get dismissed or remanded to state ct
Can you implead someone you don’t have a claim against?
- NO. may only implead someone if you have a valid claim against them!! not if you’re using their actions as a defense of your liability.
for ex– if a jdxn prohibits contribution among joint tortfeasors, can’t implead them for their negligence. you can raise their negligence as a defense to your own.
