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

Civil Procedure II Outline – Schwemm, Spring 2010


§ At CL, you couldn’t bring more than one claim in the same suit unless it was the same cause of action
§ With the code, you could bring different claims even if the CL called them different causes of action if they were part of the same transaction.

Current Procedure for Joinder
§ 1) Rule on this issue/claim in this court system (i.e. a jurisdiction may say that, under no circumstances, may someone bring counterclaims)
o With the federal system, look to the Federal Rules of Civil Procedure
§ 2) Subject Matter Jurisdiction
o Federal law
o Diversity and Amount
o § 1367—supplemental jurisdiction (same case, same controversy)
§ Rule 82 says that just because a rule says you can do it, the Rules do not extend the power of the federal system

Summary of Supplemental (Ancillary or Pendant) Jurisdiction—also see Civil Procedure I
§ Used when one claim clearly has SMJ and the other does not in federal courts
§ Only used when needed; if there is a federal question or diversity, then pendant jurisdiction need not be used
§ The second claim must arise under the same set of facts
§ United Mine Workers of America v. Gibbs (1966)—claim must be under the same nucleus of operative facts—Here, P brings a U.S. statutory claim and a claim that his rights were violated under TN common law. There is pendent jurisdiction here because the claims rise out of the same set of operative facts, and the first claim is based on U.S. law. If the first claim were based on diversity, the second claim could not be brought under pendant jurisdiction because pendant jurisdiction cannot be used to work around the Strawbridge Rule
§ 28 § 1367(b) says that when using certain rules (CHECK TO SEE WHICH RULES ARE INCLUDED) pendant jurisdiction may not be used to work around the Strawbridge Rule if P has only a diversity action to begin with
§ 1367(c) illustrates the discretion of federal courts with supplemental jurisdiction

Claims Against One Party
§ Rule 18
o 18(a): Allows you to bring as many claims as you have against ONE party
§ Rule 42
o 42(a): Courts may order a separate trial when prejudice may exist
o Rule 18 is not excepted under § 1367(b)
§ You are permitted to aggregate if one P sues one D and brings multiple claims. This is basically the reason why Rule 18 was left out of those rules being excepted under b

Counterclaims (Rule 13)
§ Counterclaims may be compulsory or permissive
§ Rule 13
o 13(a): Compulsory counterclaims
§ “Arises out of the same transaction or occurrence”
· This is often defined as claims that are “logically related”
o 13(b): Permissive counterclaims
§ “Any claim against an opposing party not arising out of the same transaction or occurrence” (dog killing claim)
§ Consequences of Failing to Plead a Counterclaim
o The consequences are if you have an unasserted compulsory counterclaim, you cannot raise it in a subsequent case
o Rule 13 is not excepted under §1367(b)

Third-Party Practice (Impleader)
§ Impleader (defined)
o Impleader is a device by which a defendant can join a third party who may either share or be legally responsible for defendant’s liability to plaintiff. In this capacity, defendant becomes a third-party plaintiff, and the added party becomes a third-party defendant
§ Rule 14
o 14(a): When a defendant may bring in a third-party
o 14(b): When a plaintiff may bring in a third-party
o Rule 14 is excepted under § 1367

Permissive Joinder
§ Rule 20
o 20(a): Arise from same transaction or occurrence AND common question of law or fact
§ Rule 42
o 42(a): Where you have separate lawsuits and the judge decides to put them together. “When actions involving a common question of law or fact are pending before the court…” It is a “may” rule; the judge does not have to do this.
o Rule 20 is exce

Rule Interpleader
o See Rule 22
§ Interpleaded claims must independently satisfy requirements of SMJ and personal jurisdiction
o Rule 22 is not excepted under 1367

Intervention (Rule 24)
§ The setting is we have a case going, and someone not a party to a case wants to be a party to the case
§ Rule 24
o 24(a): Intervention of Right
§ Intervention of right does not require court permission if three conditions are met:
§ An interest relating to the property or transaction
· The classic yes to interest is money, but the interest does not have to be money
· “There is no apparent reason why an ‘economic interest’ should always be necessary to justify intervention.
· The interest in Smuck is the other students/parents concern against integration.
· Possibility of significant detriment
§ Substantial possibility that none of the present parties will adequately represent the intervenor’s interest
· Consider purely private cases vs. where the government is a party.
· Environmentalist à KY to enforce regulations against coal; coal companies would be an intervener
· U.S. à Microsoft for anti-trust; other companies might want to intervene
· Look at the guy on your side of the case, and tell the judge that party is laying down.
· Other examples
o Inadequate representation
o Fewer resources
o The third-party has more to lose than the party in the case
o Other priorities
o 24(b): Permissive Intervention
§ One pay petition the court to intervene when:
· A statute confers a conditional right to intervene OR
· Common question of law or fact