V. JOINDER OF CLAIMS AND PARTIES

Question 1

A. Joinder of Claims

1. Counterclaims
   a. Definition

Answer 1

A. Joinder of Claims
1. Counterclaims
a. Definition
A counterclaim is a claim by one party against an opposing party seeking some affirmative relief. [February 2000 #7]
b. Compulsory Counterclaims [July 2000 #8; February 2001 #9; February 2008 #5; February 2011 #10]
In order for a counterclaim to be compulsory, it must:
• arise out of the same trasanction or occurrence that is the subject matter of the principal action;
• be within the SM jurisdiction of the court;
• not be the subject of a pending action at the time the counterclaim is filed;
• be a claim that the pleader has at the time of filing; and
• not require the presence of 3rd parties over whom the court cannot acquire jurisdiction.
If a counterclaim qualifies as a compulsory counterclaim, it must be asserted against the plaintiff in the pending action, or its subject matter will thereafter be barred.

c. Permissive Counterclaims
A permissive counterclaim may be brought in the same action or the defendant has the option of asserting the permissive counterclaim in a separate action (not same T/O) filed against the plaintiff.

Question 2

2. Crossclaims

Answer 2

A crossclaim is a claim by one party against a co-party (e.g., defendant #1 crossclaims against defendant #2). The crossclaim must arise out of the same transaction or occurrence that is the subject matter of the original action. The general rule is that crossclaims are permissive.

Question 3

Joinder of Parties
1. Impleader and Third Party Practice
Example [July 2006 #11; July 2007 #3; July 2010 #13; July 2011 #13]: Suppose Edith is a passenger in Gloria’s car. Edith is injured when Gloria’s car collides with a truck driven by Michael. Edith sues Michael for personal injuries. Michael’s attorney believes Gloria was at fault and caused the accident. What can Michael’s attorney do to “bring” Gloria into the lawsuit? What procedure must be followed?

Answer 3

File a 3rd party claim against Gloria alleging that she is liable for all or part of Edith’s claim against Michael. The defendant who asserts a third party claim is known as a third-party plaintiff and the document is known as a third-party petition. The third-party plaintiff must have citation and the third-party petition served on the third-party defendant.
The third-party plaintiff need not obtain leave to make the service if he files the third-party petition not later than 30 days after he serves his original answer.
Otherwise, defendant must obtain leave on motion stating the claim, the basis, and the relationship to the primary claim. The defendant must give notice of the motion to all parties.

Question 4

2. Designation of Responsible Third Parties [July 2010 #13, #14; February 2011 #4; July 2011 #13]
   a. Overview and Motion
   Example: Suppose plaintiff sues defendant for injuries arising out of an automobile accident. Defendant believes that there are several non-parties who are responsible for plaintiff’s injuries. One of the non-parties is beyond the court’s jurisdiction while another non-party is bankrupt. Accordingly, standard Impleader would be futile. How should defendant address this problem?

b. Impact of Designation
Example: Suppose the court grants defendant’s motion. What impact will the designation of responsible third parties have on the case?

Answer 4

File a motion for leave to designate the non-parties as responsible third parties. The motion must be filed on or before the 60th day before the trial date except for good cause. The defendant must plead sufficient facts to raise a genuine issue regarding the designated person’s responsibility for the harm.
Responsible third parties include any person who is alleged to have caused or contributed to causing the harm for which recovery is sought. The term includes a bankrupt, a criminal, a person beyond the court’s jurisdiction, and an employer with workers’ compensation immunity.

Under proportionate responsibility, the fact finder determines the degree of responsibility for various persons. A person designated as a responsible third party is a person whose conduct is considered by the jury when allocating fault for the plaintiff’s injuries.

no. The designation procedure does not affect third party practice nor any substantive rights to indemnity granted by contract, statute, or the common law. But the joinder might be futile because the party joined is beyond the court’s jurisdiction or is bankrupt.
The designation procedure allows the jury to consider the fault of such a party without the necessity of joining the party.