Outline for Civil Procedure II
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
1. For example: In a diversity case where one plaintiff sues one 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
iii. 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
iv. If the joinder would lead to jury confusion or other prejudice, Rule 42(b) permits the court to sever the claims for separate trial
v. As long as the parties are properly joined, each party may raise an unlimited number of unrelated claims against the opposing party
vi. Jurisdiction – each claim must have an independent original or supplemental jurisdictional basis
vii. Text of the Rule – RULE 18
(a) In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.
(b) Joinder of Contingent Claims. A party may join two claims even though one of them is contingent on the disposition of the other; but the court may grant relief only in accordance with the parties’ relative substantive rights. In particular, a plaintiff may state a claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff, without first obtaining a judgment for the money
b. Rule 13 – Counterclaim and Crossclaim (by defendant)
i. An unbrought counterclaim later held to be compulsory is precluded by doctrines of former adjudication
1. Compulsory Counterclaim: Rule 13(a) requires a defendant to bring any claim, that, at the time of service, the party has against an opposing party if the claim:
i. Arises out of the same transaction or occurrence as the opposing party’s claim; and
ii. Does not require adding another party over whom the court cannot acquire jurisdiction
a. A counterclaim arises out of the same transaction or occurrence as an opposing party’s claim if:
i. There is a logical relationship between the claim and the counterclaim; or
ii. The claim and counterclaim raise common issues of fact and law; or
iii. The claim and counterclaim involve the use of evidence common to both; or
iv. Res judicata would prevent the defendant from asserting the claim in a subsequent action
b. If the defending party fails to include a compulsory counterclaim in an answer, it is waived and cannot be brought by a separate suit
2. Permissive Counterclaim: Rule 13(b) permits a party claimed against to seek relief from the opposing party
a. One that is not transactionally related to an opposing parties claim
i. 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
b. 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
ii. There will always be supplemental jurisdiction over compulsory counterclaims and never over permissive
iii. 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.
a. 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.
iv. Text for the Rule – RULE 13
(a) Compulsory Counterclaim.
(1) In General. A pleading must state as a counterclaim any claim that–at the time of its service–the pleader has against an opposing party if the claim:
(A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and
(B) does not require adding another party over whom the court cannot acquire jurisdiction.
(2) Exceptions. The pleader need not state the claim if:
(A) when the action was commenced, the claim was the subject of another pending action; or
(B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.
(b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory…
(g) Crossclaim Against a Coparty. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
(h) Joining Additional Parties. Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.
(i) Separate Trials; Separate Judgments…
c. Rule 42– Consolidation; Separate Trials
i. A judge can sever a claim for trial convenience
ii. Text of the Rule – RULE 42
(a) Consolidation…
(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, crossclaims, 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
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 are applicable – every added defendant must independently satisfy subject matter jurisdiction 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
vii. Text of the Rule – RULE 20
(a) Persons Who May Join or Be Joined
(1) Plaintiffs. Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.
(2) Defendants. Persons–as well as a vessel, cargo, or other property subject to admiralty process in rem–may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrenc
to the risk of double liability or inconsistent obligations.
2. Feasibility – If an absent party satisfies any of the rule 19(a) criteria then the absent party must be joined if feasible
a. It may not be feasible if
i. Joinder will defeat subject matter jurisdiction (diversity)
ii. The court cannot obtain personal jurisdiction over the absent party
iii. The absent party has a valid venue objection
b. If not feasible, then go on to step 3
3. 19(b) – Indispensible – Is the party so indispensible that the party must be added?
a. If Rule 19(a) is not met, then Rule 19(b) cannot be applied
b. Necessary parties who can’t be joined because of personal jurisdiction, subject matter jurisdiction or venue, and who are so vital to the action that the court should dismiss the case rather then proceed
i. 4 factors in deciding whether to dismiss case or proceed
1. Prejudice – extent to which absence of party will be prejudicial to him or to existing parties
2. Framing the Judgment – extent to which the prejudice can be lessened or avoided by tailoring the judgment (damages, etc)
3. Adequate Remedy – whether an adequate remedy can be rendered in the outsider’s absence
4. Result of Dismissal – whether P has an adequate remedy if the action is dismissed – can P sue effectively in another forum?
iii. Text of the Rule – RULE 19
(a) Persons Required to Be Joined if Feasible.
(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined (REQUIRED) as a party if:
(A) in that person’s absence, the court cannot accord complete relief among existing parties; or
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:
(i) as a practical matter impair or impede the person’s ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
(2) Joinder by Court Order…
(3) Venue. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.
(b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible (INDISPENSIBLE) cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:
(1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person’s absence would be adequate; and
(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder…
III. Process for analyzing Joinder Problems
Does the court have the jurisdictional power to hear the claim?
· Does the court have federal question or diversity jurisdiction over each individual claim?
o Yes – (1) Does the court have permission to hear the case under an applicable joinder rule?
Yes – The court can hear the claim
No – No joinder
