Spring 2010 -Civil Procedure Outline- Professor Genetin
I. Joinder of Claims
a. Rule 18 – Joinder of Claims (by plaintiff)
i. For joinder of claims by a plaintiff and although it allows for joinder it does not compel it
ii. Permits a party to join as many claims as the party has against an opposing party. There is no requirement that the claims be transactionally related since the goal in joinder of claims is to achieve a complete resolution of the dispute between the parties.
iii. For example: In a diversity case where one plaintiff sues on defendant on two unrelated claims (one for 80,000 and the other for $76,000), the plaintiff may join the two claims in a single lawsuit.
iv. This applies not only to the original plaintiff but also to any party seeking relief against another party, whether on a counterclaim, a cross-claim, or a third-party claim.
v. If the joinder would lead to jury confusion or other prejudice, Rule 42(b) permits the court to sever the claims for separate trial.
vi. As long as the parties are properly joined, each party may raise an unlimited number of unrelated claims against the opposing party.
vii. Jurisdiction – each claim must have an independent original or supplemental jurisdictional basis.
b. Rule 13 – Counterclaim and Crossclaim (by defendant)
i. Compulsory Counterclaim: Rule 13(a) REQUIRES D to bring any claim, that, at the time of service, the party has against an opposing party if the claim:
1. Arises out of the same transaction or occurrence as the opposing party’s claim; AND
2. Does not require adding another party over whom the court cannot acquire jurisdiction
3. A counterclaim arises out of the same transaction or occurrence as an opposing party’s claim if:
a. There is a logical relationship between the claim and the counterclaim; or
b. The claim and counterclaim raise common issues of fact and law; or
c. The claim and counterclaim involve the use of evidence common to both; or
d. Res judicata would prevent the defendant from asserting the claim in a subsequent action.
ii. If the defending party fails to include a compulsory counterclaim in an answer, it is waived and cannot be brought by a separate suit.
iii. Permissive Counterclaim: Rule 13(b) PERMITS a party claimed against to seek relief from the opposing party.
1. One that is not transactionally related to an opposing parties claim.
a. For example: in a diversity case where the plaintiff seeks $80,000 breach of contract damages, the defendant may state a permissive counterclaim in the answer for $76,000 in tort damages that are totally unrelated to the plaintiff’s claim.
2. A permissive counterclaim will involve different events from the main claim, and the court will almost certainly order separate trial of the permissive counterclaim. (See Rule 42(b)). But the rule at least allows a defendant, once brought before the court, to settle all his claims against his opponent without having to file a separate lawsuit.
iv. There will always be supplemental jurisdiction over compulsory counterclaims and never over permissive.
v. Cross-claims: Rule 13(g) – permits a party to seek transactionally-related relief from a co-party.
1. Cross-claims are permissive and may be asserted only if arising out of the same transaction or occurrence as the main claim.
2. For example: Plaintiff, a passenger in a car driven by D1, is injured when D1’s care collides with one driven by D2; and, since D1 and D2 are made co-party defendants by plaintiff’s suit against them, D2 may, in an answer to plaintiff complaint, seek relief from D1 for personal injury or property damage suffered in the collision that gave rise to plaintiff’s action. Even if D2 has no claim against D1 for personal injury or property damage, D2 may by cross-claim, seek indemnity or contribution from D1 in the event plaintiff wins judgment against D2.
e. Rule 42 – Consolidation; Separate Trials
vi. A judge can sever a claim for trial convenience and to prevent confusion or prejudice.
vii. Text of the Rule
1. (a) Consolidation…
2. (b) Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, cross-claims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.
II. Joinder of Parties
a. Rule 20 Permissive Joinder of Parties – ONLY PLAINTIFFS CAN INITIATE RULE 20
i. Rule 20(a): permits multiple plaintiffs to join in one action as long as each seeks relief on at least one claim that arises from the same transaction or occurrence and presents a common question of law or fact.
ii. And, by the same concept, on plaintiff may join several defendants in a single action if the same criteria are met
iii. JURISDICTION RULES APPLICABLE – every added D must independently satisfy SMJ requirements
iv. Resolving issues in a single action avoids the possibility of inconsistent judgments on the same issue.
v. Rule 20(a) does not require parties to be joinded whenever the criteria in the rule are met. The joinder decision is initially left to the plaintiff:
1. If they choose to sue some but not all defendants in one action, they may sue the others in a separate action or never sue them at all.
2. If they choose not to join in a suit by other plaintiffs against the defendant, they remain free to pursue their own claims in separate suits
vi. In multiple-party and multiple-claim joinder, there is an important guide to remember: Join parties first and then join claims.
b. Rule 21 – Misjoinder and Nonjoinder of Parties
i. This rule provides the remedy for not satisfying joinder which is severance
ii. Text of the Rule
1. Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.
c. Rule 14 – Third-Party Practice (Impleader)
i. Impleader is a procedure that permits the defendant to bring into a lawsuit a third perso
Has an unconditional right to intervene by federal statute, OR
b. Criteria
i. Subject Matter Interest – Intervenor must have an “interest” in the property or transaction that is the subject of the suit
ii. Impacted Interest – The interest must, in some strong way, be at risk
iii. Inadequate Representation – That interest is not already being adequately represented in the lawsuit
2. Permissive Intervention (24b) – governs those with a weaker basis for insisting on joinder. An applicant who meets the requirements of 24(b) may join SUBJECT TO JUDICIAL DISCRETION, with the judge’s decision reviewed only for abuse of discretion
a. Requirements
i. Conditional Right – Party has a conditional right to intervene by federal statute; or
ii. Common Question of Law or Fact – Party has a claim or defense that shares with the main action a common question of law or fact Interpleader
3. Other Issues
a. Timeliness – Intervention must be timely – intervenor may not lie in wait until the litigation is on the brink of resolution. Court will rarely deny intervention of right because of tardiness (rationale: intervenor may be seriously harmed/ prejudiced). However, more likely to deny permissive intervention because of tardiness.
i. Factors to Consider in Determining if a Motion to Intervene is Timely
1. How long the applicant knew of his interest before making the motion
2. Prejudice to the existing parties from any such delay
3. Prejudice to the applicant if the motion is denied
4. Other unusual circumstances
b. Appealability
i. Granting Intervention – NOT appealable, because not a final order
ii. Denying Intervention – APPEALABLE
4. Courts may allow parties to intervene as a broad party, or may only allow their intervention in a specific sense in relation to a specific issue.
5. Downsides to Intervention
a. Complicates and perhaps weakens the litigating strategy of the existing parties
b. Additional parties make the lawsuit more expensive
c. Erodes party autonomy
6. Common situations in which intervention is used
a. Real property suits like mortgage foreclosures
b. Specific Performance of a K
7. Jurisdiction – SMJ must be met independently, regardless of whether intervention is of right or permissive.
a. Supplemental Jurisdiction
i. Federal Question – intervenor will be granted supplemental jurisdiction
Diversity – must meet diversity criteria, or no
