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Civil Procedure II
Santa Clara University School of Law
Van Schaak, Beth

Civil Procedure – Spring 2009
Professor Van Schaak
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***** After pleadings close, you do not use name 12 (B) 1, 6,7- You would use Summery Judgment, or Failure to joined indispensable party under 19, etc*****
 
 
FRCP 13 – Counterclaim and Cross-Claim
The two main tests to determine if a claim is compulsory or permissive are:
 
The logical relationship test: The essential facts of the claims must be so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit.
 
Preclusion Test: If the claim would be blocked due to res judicata, then it is compulsory. If not, it is permissive.
 
A defendant sued in one capacity cannot assert a counterclaim in another capacity.
Example: Defendant is sued as a corporate defendant, but tried to counterclaim as a trustee of property.
(a) Compulsory Counterclaims.
A pleading SHALL state, as a counterclaim, any claim which, at the time of service, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim AND does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.
 
But the pleader need not state the claim if
 
(1) at the time the action was commenced the claim was the subject of another pending action,
 
If compulsory counterclaims are not raised, they are forfeited.
(b) Permissive Counterclaims.
A pleading MAY state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.
 
There is a split in the courts:
Some – permissive counterclaims by definition need an independent basis for jurisdiction.
Others – The language of Rule 13(a) (same transaction or occurrence) is stronger than the language of supplemental jurisdiction (same case or controversy). A claim may fall outside of 13(a), but still within §1367.
(g) Cross-Claim Against Co-Party.
A pleading MAY state, as a cross-claim, any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of [the original action OR of a counterclaim OR relating to any property that is the subject matter of the original action].
 
Such cross-claim MAY include a claim that the party against whom it is asserted [is OR may be] liable to the cross-claimant for [all OR part] of a claim asserted in the action against the cross-claimant.
 
If the original claim was in federal court on valid jurisdiction, the court will retain jurisdiction over subsequent cross-claims even if the original claim is dismissed because by definition, they have to be the same transaction or occurrence (If Rule 13(g) is satisfied, it follows that the requirements of §1367 are also satisfied – ‘same case or controversy’.)
 
A cross-claim is always permissive.
 
FRCP 14 – Impleader ***Check §1367 if Plaintiff is suing an impleaded party!***
 
The third-party’s liability is completely dependant on the original party’s liability! (NOT “It’s not me, it’s him” BUT “if I’m liable, so is he”) – The third-party defendant does NOT need to be liable to the original plaintiff.
 
Motion 12(c) made by third-party defendant to contest impleader.
 
The impleader provision is clear that a plaintiff can assert claims against a third party defendant only if they arise out of the same transaction or occurrence that is the subject matter of the plaintiff’s claim against the third party plaintiff.
 
If there is any possible scenario under which the third party defendants may be liable for all or part of the defendants’ liability to the plaintiffs, the third party complaint should be allowed to stand.
(a) When Defendant May Bring in Third Party.
At any time after commencement of the action a defending party, as a third-party plaintiff, MAY serve upon a person, not a party to the action, who (is OR may be) liable to the third-party plaintiff for (all OR part of) the plaintiff’s claim against the third-party plaintiff. (A defendant may implead a third party on the grounds of comparative fault.)
The third-party plaintiff need not obtain leave to make the service if the third-party plaintiff files the third-party complaint not later than 10 days after serving the original answer. OTHERWISE the third-party plaintiff MUST obtain leave on motion upon notice to all parties to the action.
The person served with the summons and third-party complaint (the third-party defendant) SHALL make any defenses to the third-party plaintiff’s claim as provided in Rule 12 AND any counterclaims against the third-party plaintiff AND cross-claims against other third-party defendants as provided in Rule 13.
The third-party defendant MAY assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff’s claim. The third-party defendant MAY also assert any claim against the plaintiff arising out of the (transaction OR occurrence) that is the subject matter of the plaintiff’s claim against the third-party plaintiff.
The plaintiff MAY assert any claim against the third-party defendant arising out of the (transaction OR occurrence) that is the subject matter of the plaintiff’s claim against the third-party plaintiff, AND the third-party defendant SHALL then assert any defenses as provided in Rule 12 AND any counterclaims AND cross-claims as provided in Rule 13.
Any party MAY move to strike the third-party claim, OR for its severance OR separate trial. A third-

rough 37;
(7) the identification of (witnesses AND documents), the (need AND schedule) for (filing AND exchanging) pretrial briefs, and the (date OR dates) for further conferences and for trial;
(8) the advisability of referring matters to a (magistrate judge OR master);
(9) settlement AND the use of special procedures to assist in resolving the dispute when authorized by (statute OR local rule);
(10) the (form AND substance) of the pretrial order;
(11) the disposition of pending motions;
(12) the need for adopting special procedures for managing potentially (difficult OR protracted) actions that MAY involve (complex issues, multiple parties, difficult legal questions, OR unusual proof problems);
(13) an order for a separate trial pursuant to Rule 42(b) with respect to a (claim, counterclaim, cross-claim, OR third-party claim), or with respect to any particular issue in the case;
(14) an order directing (a party OR parties) to present evidence early in the trial with respect to a manageable issue that could, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) OR a judgment on partial findings under Rule 52(c);
(15) an order establishing a reasonable limit on the time allowed for presenting evidence; AND
(16) such other matters as MAY facilitate the just, speedy, and inexpensive disposition of the action.
At least one of the attorneys for each party participating in any conference before trial SHALL have authority to enter into stipulations AND to make admissions regarding all matters that the participants MAY reasonably anticipate MAY be discussed.
If appropriate, the court MAY require that (a party OR its representatives) be (present OR reasonably available by telephone) in order to consider possible settlement of the dispute.
(d) Final Pretrial Conference.
Any final pretrial conference SHALL be held as close to the time of trial as reasonable under the circumstances. The participants at any such conference SHALL formulate a plan for trial, including a program for facilitating the admission of evidence. The conference SHALL be attended by at least one of the attorneys who WILL conduct the trial for each of the parties AND by any unrepresented parties.
The pretrial order superceedes the pleadings