Pg 19

Question 1

How do you add a party to a lawsuit?

Answer 1

You make an amendment that changes or adds the party.

Question 2

Why is it tricky to add a party to a lawsuit?

Answer 2

Because that party did not have notice of being sued. So you must focus on what the defendant knew or should have known during the 90 day FR4 period.

Question 3

If a plaintiff was beat up by four police, but he only knew the identity of one, so he sued that one and he listed the others as “does.“ If after the SOL runs he learns the others’ names and he amends the complaint to add them, is that possible?

Answer 3

If they found out about the suit when it was filed, some courts say:

• there’s no relation back because the plaintiff didn’t make a mistake about the identity of the defendants, he just didn’t know who they were.
• other courts say it relates back because of the tricky position that the plaintiff was in

Question 4

What is required to add a new claim to an existing claim?

Answer 4

The new material must emanate from the same TNO as the original material

Question 5

What are the elements that are required in order to add a claim to an existing claim or to add a party?

Answer 5

• the claim must arise from the same conduct, transaction, or occurrence as the original claim
  – the party must of had timely notice of the original complaint being filed.
  – the new party either knew or should have known that “but for“ the mistake about the identity of the proper party, the original action would have been against him. He must’ve realize that he was meant to be the defendant instead of or in addition to the party that got sued

Question 6

If one party makes a motion for sanctions against the other party, how must that be made?

Answer 6

It must be made separately and it must describe specific content. It is limited to what will deter repetition of that conduct by others that are similarly situated. It can come as a non-monetary directive, a penalty that has to be paid to the court, a requirement to pay attorney fees or other expenses from the violation, etc.

Question 7

If a motion for sanctions is made, must the complaint have the actual amount being demanded?

Answer 7

No, the complaint just needs to state a demand

Question 8

If special damages are being sought as a sanction against the other party, what must happen?

Answer 8

They must be specifically stated. If they are not plead, they are barred from being proved at trial

Question 9

What is the point of FR 11?

Answer 9

It is meant to stop abuse of the litigation process by ensuring that lawyers and their clients present claims and defences that have a basis in fact and law. It ensures that lawyers do a pre-filing investigation of claims to certify that they are grounded in fact or law.

Question 10

What are possible punishments under FR 11?

Answer 10

Suspension, disbarment, judicial reprimand in open court, etc.

Question 11

What is joinder?

Answer 11

This allows multiple claims and parties to be combined in one suit.

Question 12

Who is the master of a claim?

Answer 12

Plaintiff

Question 13

What does a plaintiff decide with regard to a suit?

Answer 13

Who are the parties are and what claims will be asserted

Question 14

In what situation can plaintiffs sue together?

Answer 14

• if they are asserting claims that come from the same transaction or occurrence, or series of TNOs
• or that involve defendants that are part of a common question of law or fact

Question 15

What is the rationale behind joinder?

Answer 15

Efficiency and the avoidance of inconsistent judgements

Question 16

Is joinder of multiple claims or parties required?

Answer 16

No, it is the plaintiff’s choice

Question 17

What are the things that are required for a plaintiff to add a claim or party?

Answer 17

There must be authority under the FRCP, SMJ, venue, and PJ over all the parties.

Question 18

What things are required for joinder to occur?

Answer 18

Power and Permission.
– permission: comes from the federal rules regarding joinder
– power comes from statutes

Question 19

How is joinder a protection?

Answer 19

It protects the absent party (would be unfair to continue without him) as well as existing parties from unfair burdens that result from the absence of a vital person.

Question 20

If a party cannot be joined, but should be, what can the court do?

Answer 20

The court can dismiss the motion and hear the case without the person, or they can dismiss the entire suit. It depends on how much prejudice would result

Question 21

If an indispensable party is missing, what happens?

Answer 21

The entire action is dismissed

Question 22

If a necessary party is missing, what happens?

Answer 22

The court has discretion to decide to continue without him or not

Question 23

What are the two major types of joinder?

Answer 23

– permissive joinder

– compulsory joinder

Question 24

What is permissive joinder?

Answer 24

The plaintiff has the option to aggregate claims or parties as long as:

1. TNO: they arise from the same TNO that comprises the subject matter of the action, and
2. COMMON Q: they have at least one common question of law or fact to all of the parties
3. SMJ

Defendants can join under the same requirements. The court can grant judgement to one or more plaintiffs according to their rights and against one or more defendants according to their liabilities. Joinder of unrelated claims is allowed.

Question 25

What does the TNO requirement for joinder really mean?

Answer 25

There must be a logical relationship between the new party’s claim and the rest of the case. This occurs when there is sufficient factual overlap between the case and the new party’s claim to make it efficient or convenient for the court to hear the added claim

Question 26

What is compulsory joinder?

Answer 26

Mandatory requirement for someone to participate in a suit. This includes anyone whose absence would prejudice the plaintiff, the defendant, or any other existing party that should be joined.

Question 27

What is the difference between permissive joinder and compulsory joinder?

Answer 27

• permissive: the plaintiff has the option to join parties or claims
  – compulsory: this is a mandatory requirement to join parties or claims

Question 28

What are some factors that would constitute prejudice enough to require compulsory joinder?

Answer 28

– the absence of a party would deprive the court of its ability to give complete relief
– it would impair or impede the party’s ability to protect his own interest
– it would expose defendants to multiple or inconsistent obligations
– also consider equity and good conscience

Question 29

How does the joinder of claims by a plaintiff work?

Answer 29

Any party seeking relief from the opposing party through a claim, counter claim, third-party claim, or cross claim, can join with the original claim any extra claims he has against the opposing party, even if they’re unrelated. It’s just necessary that the claims have SMJ.

Question 30

If a victim claims sexual assault against the witness, can he then also add a libel and trespass claim in joinder?

Answer 30

Yes, he can add as many claims as he has against the defendant even without a common TNO

Question 31

Is joinder allowed even when the relief sought is in the alternative? I.e.: you don’t know if A or B burned down the store, so you sue both and get one recovery.

Answer 31

Yes

Question 32

Joinder of claims only applies to whom?

Answer 32

The original plaintiff.

Ie: if a plaintiff brings a personal injury claim against the defendant, and then a month later he brings a claim for property damage, he can join those two claims even if one is contingent on the disposition of the other

Question 33

Who decides whether joinder of claims will be allowed?

Answer 33

The judge

Question 34

What is misjoinder and what does it do?

Answer 34

This is not a ground for dismissal, but the court can at any time add or drop a party or sever any claim

Question 35

What are different situations that joinder of claims can be done?

Answer 35

The party can add to:

• counter claims
• cross claims
• bring extra parties in through third-party claims
• add parties to a counter claim or cross claim