Parties Flashcards
What is Necessary Joinder
Necessary parties subject to courts jurisdiction must be joined.
Permissive Joinder
may be joined at any time there is
- common question of law or fact and
- asserting either right to relief jointly or severally with existing parties or
2a. right to relief arising out of same transaction or occurrence.
A Necessary Party is
Complete relief can not be accorded without joining the party;
or
party will be inequitably affected by judgement
Non-Joinder
A necessary party not subject to courts jurisdiction, the court will dismiss for non-joinder of a necessary party.
The court will determine if party is indispensable and the case will be dismissed as a result.
Indispensable Party Test
PAPER
(P)rejudice to non-present party and how much?
(A)lternative forum - can they be sued elsewhere?
(P)rotective Order - can order protect interests of non-present party?
(E)ffective Judgement
(R)esult of whose conduct caused the problem
If an indispensable party, the case dismissed for failure to join a necessary party
Interpleader - defined
P subject to multiple liability from adverse claims.
stakeholder claims he is not liable to all claimants
but is liable to someone - not sure of whom
Relationship of claims for an interpleader
Claims need not arise out of the same transaction.
Claims need to be adverse and independent.
Defensive Interpleader
Form of interpleader where D is exposed to multiple liability from current action.
D stakeholder brings claimants into action
files summons and interpleader complaint.
If other action is pending, he can bring claimants into the action with defensive interpleader.
IMPLEADER; Third Party Practice
D proceeds against non-party who is liable for all or part of P’s claim.
ie. contribution and indemnification
D becomes a 3rd party Plaintiff
file a 3rd Party summons and complaint where original action is pending.
Service makes party a 3rd party defendant.
Service for 3rd Party Practice
3PP must serve 3PD with a 3rd party complaint
contains all prior pleadings in the proceedings.
All other parties must be served with the 3rd party complaint.
3PD must answer and assert any defenses.
may implead successive parties liable to him for original or 3rd party complaint issues.
Claims by P against 3rd Party Defendant
Original Plaintiff may amend complaint to assert claims against 3PD within 20 days of service of 3rd Party Complaint
Court may dismiss without prejudice
order a separate trial of the claim or any separate issue within it.
Intervention of a Non-Party By Right
Non-Party on motion can intervene if:
- state statute confers an absolute right to intervene; or
- Non-Party is bound by outcome and there is inadequate representation of his interests by the current parties.
Non-Party Intervention by Permission
Court may allow a non-party to intervene in an action if:
- State statute allows intervention in the courts discretion
- claim in ongoing action have common questions of law or fact.
Requirements of Incompetents, Infants, and Decedents appearance in court
party may not appear alone in court.
parent, legal guardian, conservator, must appear in court.
Guardian ad Litem
infant, incompetent, or conservatee has no legal guardian
court will appoint a guardian ad litem to appear on persons behalf.
May appointed on courts initiative or
on a motion by the infant, incompetent, conservatee; a relative, friend, or guardian, or any party to the action
within 10 days after completion of service.
Class Action - SCANT
Superiority Commonality Adequacy Numerosity Typicality
Class Action - Superiority
Class Action is superior to any other method
will provide fair and efficient adjudication of the controversy
Class Action - Commonality Requirement
common questions of law or fact must predominate
over questions relevant to individual members.
Class Action - Adequacy Requirement
class is fairly and adequately represented by representative party(ies) and counsel
Class Action - Numerosity Requirement
so numerous that joinder of members is impracticable
Class Action - Typicality
Claims and Defenses of representative party(ies) are typical of the class
Timing Requirement for Class Certification
Plaintiff must move to certify class as class action within 60 days of service of responsive pleading.
Factors considered determining whether to certify a class action (5)
- interests of members of in controlling separate actions.
- Practicality or inefficiency of prosecuting separate actions.
- Extent and Nature of existing litigation concerning the matter.
- Desirability of concentrating litigation in a particular forum.
- Difficulties likely in managing the class itself
Divisibility of issues within a class action
may bring class action with respect to only a particular issue or issues, or may divide into subclasses and each subclass treated as a class.
Notice Requirement to Members of a Class
“Reasonable Notice” to members of class required to bind them.
considers methods available
costs and resources of parties
Actions requiring Court Approval in Class Action Cases
no dismissal, discontinuance, or compromise
without approval of the court.
Denial of Joinder
When individual issues might predominate
Prejudice to the parties
here the court may deny joinder.
Plaintiff’s amendment to original pleadings after the addition of an IMPLEADED party
P can amend original pleadings to include Impleaded party w/i 20 days
HOWEVER
potential SoL problems with adding the impleaded party.
