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Civil Procedure II
University of Kentucky School of Law
Schwemm, Robert G.

Schwemm Spring 2014

Civil Procedure II


-2 or more claims can be brought in separate lawsuits

-If you start out with 1 claim, can you add other to it? (second claim/counterclaim)

-Mr. PaulàUnited Prop

-Mrs. PaulàUnited Prop (can this one be added?)

-U.S. Courtàsystem based on the Rules (supplement)

-Each state has their own rules

U.S. Product Safety Act

U.S. Court

-Technique to determine whether YES or NO if in State Court:

1) Tell me what court system we are in and we can look up the relevant rule

-2 Issues if in U.S. Court

1) Is there a rule that authorizes it?

2) Subject Matter Jurisdiction [MUST ALWAYS TALK ABOUT SMJ!]

a. Claim arises under U.S. Law §1331

b. Diversity and amount (original jurisdiction) §1332

c. Supplemental Jurisdiction §1367

-Same case or controversy/fact pattern as original claim

-(b) & (c) take a YES under (a) and turns it into a NO [Know exceptions]

-(a)—must be same case/controversy (related)

[2=dog=NO; 2=slander from same incident=YES]


I. Joinder of Claims

A. Historical Limitations on the Permissive Joinder of Claims

1. Harris v. Avery (In State Court)

a) 3 separate issues, or just 1?


False Imprisonment

Harris accused Avery of stealing a horse

b) H

i. Harris’ lawyer demurrer—claims are improperly joined

· It matters because the Defendant has to respond to all 3 claims regardless—if the same jury deals with all of the claims, they may make a mistake or may be harder on Harris (may see a pattern in behavior)

B. Permissive Joinder of Claims by Plaintiffs Under Federal Rule 18

1. Party may join as many claims as it has against opposing party—can even bring an unrelated claim

a) More efficient—no res judicata problem, only 1 jury, takes less time

2. Still have to determine SMJ in Federal Court for any subsequent claims

II. Addition of Claims by Defendant

A. Counterclaims

-Did not exist at common-law

1. Rule authorization is the only requirement for bringing additional claims in a state court.

2. Rule and SMJ required for bringing additional claims in a federal court.

3. RULE 13—Authorizes ALL counterclaims, one way or another

a) Compulsory Counterclaim: Arises out of the same transaction/occurrence that is the subject matter of the opposing party’s claim [ex: based on the same accident]

b) Permissive Counterclaim: Any claim that is not compulsory [Not same T/O] [ex: S killed J’s dog 1 year before car accident]

4. 2 instances when it is important to classify the claim as compulsory or permissive?

a) Subject Matter Jurisdiction

i. In Federal Court if permissiveàNo S.M.J.

b) Deals with 2nd lawsuit [JàS]

i. 13(a)(1)àMust state [If J doesn’t bring counterclaim, then the case would be dismissed—sanction for failing to bring a 13(a) counterclaim]

ii. 13(b)àMay state

5. If you can’t tell which it is, it is up to the judge to decide whether compulsory or permissive counterclaim

a) Look at time, location, Cause of Action to determine

b) 4 tests the courts use

i. Are the issues of fact and law raised by the claim and counterclaim largely the same?

ii. Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule?

iii. Will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s counterclaim?

iv. Is there any logical relation between the claim and the counterclaim? [very broad]

6. United States v. Heyward-Robinson Co.

a) Look at §1367(a)—same case or controversy

i. This is our source for whether there is supplemental jurisdiction

B. Crossclaims—RULE 13(g)-(h) [LASA handout from notes]

1. Rule 13(g): Crossclaim Against a Coparty [MAY rule]

a) Reimbursements and indemnifications

i. BàS and Maker [S and Maker are coparties] S cross claims Maker for reimbursement if he must pay B

ii. B àS and J [S and J are coparties] SàJ for damages he suffered (Rule 18(a)—any claim if

—does not apply to claims brought by defendants

· Courts split in circumstances where P1 (Ky) and P2 (Ga) àD1 (Ga-Del)

1) D was already a party before P2

2) P2 wanting to join under Rule 20.

2. Mandatory Joinder of Persons—Rule 19

a) “Necessary” and “Indispensable” Parties

i. Certain parties are “necessary” and “indispensable” and MUST be included in the lawsuit

· If the judge cannot get power over necessary parties, the case must be dismissedàIndispensable.

· Rule 19(a)(1)(A): Court cannot give complete relief without this/these parties

· Rule 19(a)(1)(B)(i): Absent party’s ability to protect their interest is impaired or impeded as a practical matter.

· Rule 19(a)(1)(B)(ii): If party is absent, that party at a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest relating to the subject of the action.

ii. How to determine if a party is “necessary” or “indispensable”? (whether to proceed or dismiss?)

· Speculate as to what will happen to them if the lawsuit continues

1) PàBank/St. Luke and wins: another claimant can come in and sue Bank because some of the $ belonged to them

a. No Res Judicata because other claimants not bound by prior decision—DUE PROCESS RIGHTS BEATS RES JUDICATA!

i. One cannot be bound by a judgment in a lawsuit that they were not part of.

ii. Bad for Bank because they could pay out the “same” $ multiple times

iii. You can still be hurt by a prior proceeding—if the company goes out of business before you can bring suit to recover money

2) If “necessary”/”Indispensable” and not joinedàDismiss

3) If not “necessary”/”Indispensable” and not joinedàProceed

· Look at the interests of the parties, outsiders, the public, etc…

· Look at the risks to outsider