Parties

Question 1

Who is entitled to be named parties in a civil action?

Answer 1

Every action must be prosecuted in the name of the real party in interest. This does not bar an executor, administrator, assignee, guardian, curator, committee of a person of unsound mind, trustee, a third-party beneficiary, or a person who is authorized from bring a suit in his own name.

A P may sue multiple Ds jointly, severally, or in the alternative if the right claimed against them arises out of the same transaction or occurrence, or series thereof, and nay question of law or fact common to all will rise in the action.

A person who is subject to service of process must be joined as a party to the action if:

1. in the person’s absence, complete relief cannot be accorded among those already parties; or
2. the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may impair or impede his ability to protect that interest or leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations by reasons of the claimed interest.

Generally, the death of a party before or after the action is commenced does not affect the rights of the adverse party.

Question 2

When is joinder of parties and claims allowed?

Answer 2

All persons may join in an action as Ps if:

1. any question of law or fact common to all will rise in the action; and
2. they assert any right to relief jointly, severally, or in respect to or arising out of the same transaction or occurrence or series thereof.

Any party seeking relief from another party may join any additional claims he has against that party.

In general, joinder of claims and remedies is permitted liberally.

Question 3

May a D assert a counterclaim?

Answer 3

If a D wishes to assert a counterclaim against the P which arose out of the same transaction or occurrence as the subject matter of the P’s claim, he must assert it in the original action, or else it is waived.

A D may state as a counterclaim any claim against an opposing party that did not arise out of the same transaction or occurrence that is the subject matter of P’s claim.

Regardless of whether the counterclaim arose out of the same transaction or occurrence giving rise to the original action, the counterclaim is not compulsory if:

1. at the time the action was commenced, the claim was the subject of another pending action; or
2. the P had brought suit against that D by attachment or through another process by which the court did not acquire personal jurisdiction to render a personal judgment, and the pleader is not asserting any counterclaim under this rule.

Question 4

What is the effect of the statute of limitations on counterclaims?

Answer 4

If a counterclaim arose of the the same transaction or occurrence as the claim of the opposing party, it will not be barred by a statute of limitations.

If a counterclaim did not arise out of the same transaction or occurrence and it is barred by a statute of limitations at the time it is brought, the counterclaim may be asserted, and it will act only to reduce the P’s claim for damages provided that:

1. both claims are for money judgments; and
2. both claims had accrued before either was barred by a statute of limitations.

Question 5

What are cross-claims?

Answer 5

One party may assert a cross-claim against a co-party arising out of the same transaction or occurrence as the original claim.

A cross-claim may be served against a co-party by regular mail.

Question 6

What is impleader?

Answer 6

A D seeking contribution or indemnity may implead new parties who may be liable to the D for all or part of any judgment the P obtains on the main claim.

This impleader rule is broader than the Federal Rule because it allows the D to implead any part who is liable to him on any claim arising out of the same transaction or occurrence.

The P may assert any claim against the third party D arising out of the same transaction or occurrence.

The third party D may assert any claim against the P or implead other parties.

A P may implead a third party when a counterclaim is asserted against him.

Question 7

What is interpleader?

Answer 7

A P may initiate a suit in order to compel two or more parties to litigate a dispute when their claims are such that the P may be exposed to multiple liability.

Question 8

What is intervention?

Answer 8

A non-party has a right to intervene in an action if he:

1. is given an unconditional right to intervene by statute; or
2. claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may, as a practical matter, impair or impede his ability to protect his interest, unless existing parties adequately represent that interest.

Intervention is permissive, and subject to the court’s discretion, for a non-party who:

1. is given a conditional right to intervene by a statute; or
2. has a claim or defense that shares a common question of law or fact with the main action.

Question 9

What rules govern class actions?

Answer 9

The filing of a class action lawsuit requires that the following elements be met:

1. he class is so numerous that joinder of all members is impracticable;
2. there are questions of law or fact common to the class;
3. the claims or defenses of the representative parties are typical of those of the class; and
4. the representative parties will fairly and adequately protect the interests of the class.

A class action lawsuit may only be commenced if it falls within one of the following types:

1. where the prosecution of separate actions by or against individual members of the class would create a risk of inconsistent judgments or judgments that would substantially impair the ability of a non-party member to protect his interests;
2. where the party opposing the class has acted or refused to act on grounds generally applicable to the class; or
3. where the court finds that the question of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

A class action suit may not be settled or dismissed without the court’s approval. Notice of a proposed settlement or dismissal must be given to all class members in a manner directed by the court. The court must approve a settlement.