Parties and Claims: Joinder; Discovery Flashcards
Counterclaim
Claim by defendant against plaintiff
a) Permissive (do not arise out of the same transaction or occurrence, can be asserted now or at anytime
b) Compulsory-If arises out of the same transaction or occurrence, must be asserted now
Cross-claim
One defendant sues another
Impleader (3rd party claims)
defendant can bring in someone who may be liable to him; usually contribution claims, which have two or more tortfeasors and plaintiff has not sued all of them; or indemnity claims, where distributor is sued in products liability case and wants to bring in the manufacturer
Joinder of plaintiffs and defendants
Permissive (plaintiff is in driver seat) or person needed for just adjudication (few and rare situations where court will force the plaintiff to add someone
Permissive Joinder test
- ) assert right to relief jointly, severally, or in the alternative
- ) same transactions or series of transactions or occurrences; and
- ) there is a common question of law or fact
Necessary Joinder
Sometimes there are persons that will be so affected by the action that they ought to be joined if feasible;
Test: If an absent person could assert an interest in the subject of the action, so that the absent person could be harmed by the proceeding, then the absent person or entity is needed e.g. contestants in a suit to cancel deed or heirs in a will contest
If Necessary Joinder not feasible, test for proceeding
Court must determine in equity and good conscience whether the action should proceed based on
- ) Harm to absent parties
- ) Shaping the relief
- ) Adequacy of judgment
4) Plaintiff adequacy if dismissed.
Reason why necessary joinder not feasible:
Destruction of jurisdiction, judgment already rendered or case underway
Class Actions
has four prerequisites, three types, a certification order, and notice.
Four prerequisites for class action
- Numerosity- number so large that it is impractical to bring before the court
- Commonality- at least one common question
- Typicality- the claims of the represented parties have to be typical of the those of class members
- Adequate Representation- the named claimant must be such that he can adequately represent those who are absent
Class action type b1
Inconsistent results: individual suits would create inconsistent results; limited fund with numerous claimants
Class action type b2
Uniform injunctive or declaratory relief; civil rights class action, relief granted with respect to the class as a whole
Class action type b3
Most common; 2 Requirements Superiority and Predominance The common questions must predominate over questions that are individual to each member, and the class format must be the superior means of resolving the dispute
Four factor test for b3 actions
Four factor pertinent to the determinations are
1) class members’ interest in “individually controlling” their own actions
2) other pending litigation, if any
3. ) appropriateness of the forum
4. ) the difficulties in managing a class action
Class action notice
court must direct notice to class member in b3 action and must be the “best practicable under the circumstances”; must also provide for members to request “exclusion”
Class action certification
court must conduct a hearing to certify that four prerequisites are met and class action fits into one of the 3 types.
Interpleader
faced with multiple conflicting claims (claims are inconsistent), stakeholder requires interplead parties to litigate out entitlement in a single action against each other, getting them enjoined from suing elsewhere. Essential requirement is existence of conflict. e.g. $100,000 life insure policy and two separate claims of $100,000
Intervention
Of right or permissive, depending on circumstances. Intervention is entering into an existing case (means of joining an existing lawsuit in which you have an interest)
