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Civil Procedure II
University of Arkansas, Fayetteville School of Law
Brill, Howard W.

Brill Civ Pro II Spring 2012
Civil Procedure II Outline
1)       Joinder
a)       Joinder
i)         Claims
1.       Rule 18 – A party asserting a claim to relief may join as many claims as the party has against an opposing party.
a.       Plaintiff has the discretion to join, but is not forced to join under Rule 18. 
b.       Judge has discretion to separate the claims into separate trials.  Could confuse jury or be potentially unfair to defendant.
c.        Policy: judicial economy, res judicata; if claims become confusing they can be divided under rule 42 by the judge
ii)       Parties (Rule 20 – permissive joinder of parties)
1.       All persons may join as plaintiffs or defendants if “arising from the same transaction (can argue buying stock is series of transactions, Tennant case), occurrence, or series of transactions or occurrences and if any question of law or fact common to all these person will arise in the action.”- Rule 20A.  This is discretionary.
2.       Different plaintiff’s can join together even if they are seeking different remedies. – Rule 20(a)(1)
3.       Court may order separate trials to prevent delay or prejudice. 
4.       Aggregation is not permitted to reach the AiC of 75K under Rule 82; it doesn’t matter if related (ex: sisters, parent/child).
5.       Supplemental juris (Exxon/1367) will allow aggregation of multiple claims if 1 claim is over 75K$.
6.       Complete Diversity still needed if multiple Ps try & sue multiple D’s – Strawbridge(Rule 82 is more authority than Rule 20)
7.       Lucas and Watts (one car accident in morning, then another car accident in afternoon, we should allow joinder).
8.       Heart of Policy Argument for Allowing Together – P: difficulty in figuring about what D did what injury, sympathy (hurt on multiple occasions, conveyance to the court; D: prejudices client – other guy did a lot more circumstances different
9.       If separate lawsuits with separate attorneys, the judge can order consolidation under Rule 42 for judicial economy.
10.    Discretion/Protective Measures – Rule 20(b)- Court has discretion to order separate trials or take other protective measures to protect a party against embarrassment, delay or other prejudice
b)       Counterclaims (Opposing Parties – First determine whether counterclaim is compulsory or permissive)
i)        Compulsory – 13(a)  
1.       If the defending party’s counterclaim arises from the same transaction or occurrence as the claim against him, it is compulsory (Rule 13(a)), which essentially means that he must assert it in the original action or lose it.
2.       Fed Court can have juris.; Doesn’t matter if Compulsory counterclaim is less than 75K$ because of ancillary juris (now supplemental juris. 1367)
3.       Rule 13(a)(1) requires Def. to assert claim for injuries in an action.  Rule makes sense; forces parties who are already adversaries to litigate all claims arising from same set of facts in single action.
4.       But, Rule 82 – FRCP may not change jurisdiction or venue.
5.       Different damages – compulsory counterclaim may be for more money than original claim or for a different type of relief (injunction, specific performance, etc.)
6.       Rule 13(a)(2) – Quasi-in-rem jrsd.  If you gain jrsd by attaching D’s property, you can’t compel him to file a counterclaim.
7.       13(f) – If a party forgets (oversight, excusable neglect, justice requires) to include counter-claim, ct may allow party to amend. *reg. Stat. of Limitations apply
8.       13(h) – Court may allow new parties to be introduced in a counterclaim. (detailed in rule 20; policy is judicial economy)
9.       13(e) – If a claim “matures” or “is acquired” after the original answer, the court has discretion to allow it to be presented as a counterclaim by supplemental pleading. (ex: slander 3 mo. Later (ct has discretion))
10.    SOL – If P waits to file his claim on the last day of the statute of limitations, under which a counterclaim would normally be barred, the court will probably go ahead and allow the counterclaim.  However, it probably won’t allow a permissive counterclaim under these circumstances. 
11.    What if D fails to file a compulsory counterclaim within 20 days in answer; it can be brought later in federal court.
a.       This definitely applies to federal court
b.       This may or may not apply to state court.  (D might be able to bring the property damage claim in state court) – P must argue: 1) supremacy clause, 2) respect for FRCP, 3)Judicial economy, 4) issue already decided; res judicata, 5) don’t want inconsistent results
c.        In ARK such a counterclaim probably won’t be allowed.
12.    How do you tell if counterclaim is compulsory and should arise out of the “same transaction or occurrence?”
a.       Are the issues of fact and law the same?
b.       Would res judicata bar the counterclaim if asserted independently?
c.        Would the same evidence be used in both cases?
d.       Is there a logical relation between the claims?
13.    Jurisdiction of compulsory counterclaims:
a.       Ancillary jrsd under 1367.  Must be brought even if it doesn’t meet the $75k requirement.
ii)       Permissive Counterclaims (PC)
1.       Rule 13(b) – Arise out of a separate “transaction or occurrence” as P’s claim.  These may or may not be brought.
a.       Defending parties may also assert counterclaims that are completely unrelated to the original claim.
b.       Can get into Fed. Ct. by ancillary juris. if meets AiC; But if it doesn’t meet 75K using ancil. juis (supp) then goes to st. ct. (sep. lawsuit opt.)
2.       Jurisdiction of PCs – must have separate basis of juris. but can file these whenever, however, for whatever
a.       Joinder of compulsory and permissive counterclaims may be allowed, however, to get a permissive counterclaim into federal court.
(i)       Ex: P sues auto negligence for $75k.  D counterclaims for damage to his car in the same wreck for $25k and for breach of K in a different transaction for $56K. 
(ii)     Must have independent basis for jurisdiction, but if one P and one D, may aggregate claims and file in federal court.
(iii)    Ask if counterclaim is compulsory.  If not, then look at diversity or federal question.
iii)      13(C) – Counterclaims may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party’s claim. (why lawyers and doctors don’t file for lack of payment often bc. They don’t want to be sued for malpractice)
c)       Cross-Claims against Co-Party (Parties on the Same Side)
i)         13(G) – A co-defendant may file a cross-claim against another co-defendant as long as the claim arises out of the same “transaction or occurrence” or if the claim relates to any property that is the subject matter of the original action. 
ii)       Diversity jrsd and cross claims – Ancillary Jrsd 1367 – No $75K requirement. 
iii)      No such thing as a permissive cross-claims.  Must arise out of same transaction or occurrence.
iv)     Unrelated Claim over AiC + diversity; use Rule 18(a) bc. there is an independent basis of jurisdiction – NOT a cross claim.
v)       LASA v. Alexander- D cross-claimed 5 Ps (marble falling off building) ; Maj: ok bc. All based on marble falling; Dis: other claims not same as original BOK claim
vi)     Cross claims not necessary.  D MAY sue, but doesn’t have to.  (McDonalds would want to cross-claim employee for phone pic)
d)       Identifying Parties who may sue and be sued
i)         Real Party in Interest (Rule 17(a)) (Ellis) – real party in interest is the one who must bring the suit.  Capacity to sue is defined by the substantive law of the state.
1.       Subrogation –“step in shoes.”  In insurance suits an insurance co.  is sometimes the only real party in interest and must bring the suit.
a.       If damage to P’s car is completely paid by an insurance company, insurance co is the only real party in interest.  P’s ins. co. must sue the tortfeasor to collect negligence damages. | In Ark. the jury will never know (Policy juries don’t like insurance co.)
b.       If P pays a deductible and the ins. co pays the rest , both will probably bring suit against tortfeasor D, both are RPII’s but the jury won’t know about the insurance company.
c.        If P is insured, but hasn’t received insurance money.  P is in the only RPII in the suit.
2.       Rule 17(b) — Capacity to sue
a.       Depends on state law – different for different P.
(i)       For individuals – capacity is determined by the law of the state where the person is domiciled
(ii)     For corporations – capacity is determined by the law of the state under which it was organized
(iii)    For everyone else – capacity is determined by the law of the state under which the court is located (except: 17(b)(3)(A) and (B))
3.       Minors – Guardian’s Rule (17(c)) – if party is infant or an incompetent, the guardian or a “next of friend” or a guardian ad litem must bring suit.
a.       If the party is under 18, but living on his own, you can make the argument that the party is legally emancipated.  Look to state law to define emancipated. Rule 17(b) determines Capacity to sue or be sued. Determined by domicile in Ark, 17 yr old may not sue, unless emancipated.
4.       Executors and Guardians
a.       Wrongful death actions – the RPII is the executor of the decedent’s estate, even if family receives money. (acts as conduit to beneficiaries)
b.       Personal injury actions involving infants, divide the suit in half creating 2 different claims: 17(c)
(i)       For all expenses up to the age of 18, the person paying the bills will bring the suit.  Possibly the child’s parents.
(ii)     For all expenses past the age of 18, the infant’s guardian (“next of friend (parent)) 17(C) must bring suit to collect money for post-majority loss.  The jdmt will be put in trust for the child.  This party could be the same as in first suit, but not necessarily.  Atty and parent may establish a guardian to manage resources of infant to prevent parent from spending all the money.
5.       Public Officers (Rule 17(d)) – When suing public officer there are 2 choices:
a.       (1) Sue the title (e.g. Ward v. Sheriff of Washington County) OR (2) sue the person acting as the officer (e.g. Ward v. Helder)
ii)      Substitution of Parties – Rule 25
1.       Suits ending in death — If party dies during suit, see if the action ends with the death of the party.  (Defamation is a common type of action – it does.) If not, make a motion to substitute another name under 25(a) within 90 days of death.
a.       ACA 16-62-101-AR Survival Statute – All claims survive death of a party (BOK & TORT) except slander and libel. 
2.       Against elected officers: In a suit against an elective officer, if a new person takes over the office from the person sued, substitute the new person’s name under Rule 25(d).  Not absolutely required though; other way to do it is bring it by name.
iii)    Joinder (Indispensable Parties

ependent basis of jrsd.  If unrelated to original complaint, cannot bring.  US v. US Pacific Ins. Co.
e.        3rd party D v. D, unrelated additional claims
(i)       Unrelated counterclaim would be a permissive counterclaim under 13(b).  Requirements:
1.       (1) independent basis of jurisdiction
2.       (2) judge didn’t strike down under rule 42
(ii)     Hypo: B impleads C, can’t file false imprisonment for $51k – (permissive counterclaim under rule 13.  Does not meet amount in controversy.  Also, must have independent basis of jrsd.  If $81k, the independent basis of jrsd is met, but under Rule 42, the judge may choose not to hear. 
(iii)    3rd party D may bring counterclaim against D under 14(a)(4).
f.        3rd party D v. P, related claim
(i)       14(a)(6) – 3rd party may bring claim against P if the claim arises out of the same “transaction or occurrence” as P’s complaint.  Not a true counterclaim.  (C files claim for $6000 arising out of original k b/w A & B, against A)
(ii)     3rd party D may bring the action, in a counterclaim.  D must bring the counterclaim if it arises out same transaction or occurrence.
g.        P v. 3rd Party D Unrelated (P can’t sue 3rd party D)
h.       ESSAY: P(AR) v. D(MO). D impleads C(AR). P asserts claim on D for $80K on original K. P and D settle
i.         1367 and Owen Equipment v. Kroger (Majoirty for not allowing), P can’t bring related claims against 3rd party D; subverts  the history of subject matter jrsd.
1.       P couldn’t sue C at the beginning of the lawsuit, but now he can?  Diversity is violated – No ind. basis for juris.
a.       Would be destroying the fundamental principles of complete diversity (Strawbridge)
2.       Rule 82: you can’t use rules to get around jurisdiction requirements
3.       Too big of risk fraud: collusion, forum shopping, and forced settlements.  Start allowing this = Slippery Slope
(ii)     Kroger Disent (Allowing): Argue policy:
1.       Judicial economy: the lawsuit has started lets finish
2.       Common nucleus of operative facts arising out of the same transaction or occurrence
3.       1367 allows this because “so related”
4.       P wasn’t trying to be tricky: there would have to be several things happen for this to maybe work anyway
***Analysis could change if lawsuit started in state court and then was removed to federal court: Alice couldn’t be blamed
j.         A v. B (impleads C).  C may seek indemnity from D – 14(a)5
k.       PA v. USPO, (impleads LL from PA) – original jrsd does not fall under 1332, as mentioned.  Use 1331 FQ or 1346 Gov is D – 1367A – so related – Joinder of additional parties.  Changes Finley.  PA v PA is ok b/c it is fed q. 
l.         Judicial control: judge may have some discretion to control impleading.  May order separate trials under Rule 42. 
v)       Interpleader – Rule 22, 28 and USC 1335 (multiparty litigation)
1.       Interpleader – equitable lawsuit, disinterested stakeholder: Ex. Insurance co. v. Beneficiaries
a.       Device intended to enable a party who might be exposed to multiple claims to money or property under her control to settle the controversy in a single proceeding. 
2.       2 stages of interpleader:
a.       Insurance Co/Bank claims proper interpleader.  Judge, if he agrees, will determine whether interpleader is appropriate.  Judge will allow the disinterested stakeholder to withdraw, enjoin the individual claimants from filing suit against the stakeholder.   The stakeholder will then be required to deposit money or property with the court.
b.       The P-Stakeholder is decreed to leave, and the D’s fight it wout among themselves on the substantive merits to see who gets the money or object
3.       CL Interpleader (4 historical reqs):
a.       Several parties must claim the same money or property
b.       The claims must come from common source
c.        The stakeholder (seeking relief) must be disinterested and have no part in the suit.
d.       The stakeholder can’t have any independent source of liability to the parties.  Only req under FRCP 22 today.
4.       2 things to remember:
a.       P is disinterested party wanting to join the claimants.  D’s are the claimants.
b.       Pick your claim for interpleader from either Rule 22 or 1335 and stick with it.  (Exam analysis, use 1 or 2 for essay).
5.       FRCP 22 KICKS IN IF THERE IS A RISK FOR DOUBLE INDEMNITY BY MULTIPLE