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Civil Procedure II
University of Michigan School of Law
Cooper, Edward H.

Civil Procedure II – Outline
Chapter 2: Basic Joinder of Claims and Parties
Multiple Ps and Ds: Governing Law – Federal Rule of Civil Procedure 20
1.      the right to recover of the liability be joint, several, or in the alternative may at first glance seem the most complex
2.      the requirement that the claims arise out of the same transaction, occurrence, or series of transactions or occurrences
3.      all claims by or against the joined parties must share a common question of law or fact
Rule 20: Permissive Joinder of Parties (old common law view)
(a)    Permissive Joinder: can join them if you want to (auto accident above); Multiple P or D; in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action
(b)   Separate Trials: permits the court to do what they feel is appropriate
–          the whole world could be joined, however three reasons it will not happen (1) facts don’t support it, (2) even if facts support it, the attorneys wont allow it to get that complicated and (3) the court will separate out some of the parties or claims
Requirements: A party seeking joinder of claimants under R20 must establish two prerequisites
1)      a right to relief arising out of the same transaction or occurrence, or series of transactions or occurrences, and
2)      some question of law of fact common to all persons seeking to be joined
Rule 42: Consolidation; Separate Trials
(a)    Consolidation: when actions involving a common question of law or fact are pending before the court, it may order a join hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated
(b)   Separate Trials: In furtherance of convenience or to avoid prejudice or when separate trials will be conducive to expedition and economy, the court may order a separate trial
Counterclaims: Governing Rule – Federal Rules of Civil Procedure 13(a) and (b)
Two kinds: compulsory and permissive
Compulsory: transactionally related (provides efficiency and avoids inconsistent judgments); If it is compulsory you have to bring everything or forever hold your peace
Permissive: allows for something that is not transactionally related, but is against the other party you can bring it to settle all disputes in one judgment; Allows for a net judgment between the claims and counterclaims (so P gets 1000 for claim D gets 500 for counter claim, creates one judgment for P for 500)
Rule 13: Counter And Cross-Claim:
(a)   Compulsory Counter Claims: P sues D auto accident, If the D’s claim arise out of the same occurrence you have to counter claim or forever hold your peace; Doesn’t matter what type of D you are, if you are a defending party, and if as a defending party you have a counter claim arising out of the same transaction then it is compulsory
(b)   Permissive Counterclaims: may join if you want to those claims not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claims
(g)   Cross-claim against co-party: cross-claims are always party v. co-party;used to indemnify and get contribution; no compulsory cross-claim as written; compulsory counter claim rules would apply to the co party that is defending the cross claim, thus would have to file a counter compulsory cross claim
Three Tests:
–          Logical relationship test: considers all factors that may exist in a particular case. Because of this flexibility it is popoular
–          Identity of evidence: similar evidence
–          identity of issue; similar issue
Cross-Claims: Governing Law – Federal Rule of Civil Procedure 13(g);ALWAYS PARTY V. COPARTY;Simplest example is P sues d1 d2, in addition d1 sues d2, Now D2 is defending the original claim and the cross claim from D1, So D2 must bring all compulsory counter claims “transactionally related”; Only the first Cross Claim is permissive; Once the co party is defending the first permissive cross claim, may have a compulsory counter cross claim if it arises out of the same transaction; First cross claim has to be transactionally related; Then you can apply 18(a) and bring whatever other suit since party is now a proper pleading party; Can go back as far as the SOL will allow
Adding Third Parties: Impleader: Rule 14
ONLY one can become an impleader is a defending party
If you maintain that there is some 3rd party who will be liable to you if you are found liable to the claiming party that is THE ONLY WAY
Note 1: Rule 14 does not itself create a right of indemnity or contribution. Instead, the party seeking impleader must show that such a right already exists in the substantive law
Generally a substantive right to indemnity or contribution can arise in two ways
o   First, it can be created by K
o   Second, the law may imply a duty of indemnity or contribution
One of the basses for cross claim is indemnity
Did drag us through all of 14(a)
Even though the editors talk of it being permissive
Reminder of supplemental jurisdiction *1367(b)
Note restrictions in 1332
IF in federal court solely because of diversity P can not do indirectly what he could not do directly
Multiple Claims: Rule 18(a)
            Rule 18: Joinder of Claims and Remedies
(a)    Joinder of Claims: A party asserting a claim to relief, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party
–          those are the only kinds of claims there are
–          once you become a proper claimer(counter, cross, 3rd party), you may join as either independent or alternative claims as many as the opposing party
–          if not same transaction or occurrence you don’t have to join it, but you may (permissive rule)
–          Most people only have a single transaction, but this allows those with more to one lawsuit
–          Counterclaim: Claim by D against P, has to name every theory of recovery and relief entitled to
o   If any one of the claims is proper, the party can join ALL of the other claims with it under R18, regardless of any transactional relationship
o   Whenever you are a claiming party, you can join any other claims you have against that party
o   The rules of joinder are extremely generous to allow for efficiency and convenience and the court holds discretion
Making Optional Claims Compulsory: An overview of Merger and Bar
Once a particular claiming party brings a claim against a defending party they must bring all cause of action and relief sought
Collateral estoppel: dealing with separate claims, but dealing with an identity issue
Res Judicata: “a thing adjudicated” An issue that has been definitively settled by judicial decision; An affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been — but was not — raised in the first suit.
• The thr

he provisions of R23
–          R19 Uses a functional three part test
o   First the court asks whether a person should be joined to the case, if they should be joined they are considered necessary
§ Necessary party (any of the three is satisfactory)
·         Complete relief 19(a)(1)
·         Impairment of legally protected interest 19(a)(2)
·         Inconsistent results 19(a)(ii)
o   Second, the court determines if the party can be joined
o   Third, and only if they necessary party is not joined, the court considers whether it should dismiss the case, applying the factors used in R19(b)
Interpleader: Governing Rules: Federal Rule 22; 28 U.S.C. §§ 1335, 1397, 2361
Rule 22: Impleader
(1) when a stakeholder is in possession of a res or liable and has multiple claims against him there is the possibility of multiple liability
(2) The remedy herein provided is in addition to and in no way supersedes or limits the remedy provide by Title 28 U.S.C. §§ 1335, 1397, and 2361. Actions under those provisions shall be conducted in accordance with these rules
§ 1335: P have custody of the disputed property, which must exceed $500 in value; The P deposit the disputed property into the registry of the court; and Two or more adverse claimants of diverse citizenship claim or may claim an interest in the disputed property
o   Court talks of the two stages
§ First, determine whether the statutory prerequisites have been met
§ Second, consists of a determination of the respective rights of the claimants to the dispute property
o   Modernly the stakeholder can claim a part of the disputed res
o   Stakeholder may deduct their interest and implead what is left to avoid being a party and if no one disputes this there is no problem
o   If you meet the requirements and there is the fear of double or multiple liability they will allow the interpleader
o   Notice is required and unknowns are given notice by publication
o   As soon as notice of interpleader is made known there is a stop to all actions
o   The Court never enjoins another court, they Enjoin the parties from proceeding
o   IF the court does enjoin it will be done until the jurisdictional matters are taken care of
o   When a Party May Use Interpleader: By allowing all claims to be litigated in a single action, interpleader both prevents inconsistent results and offers the promise of greater efficiency; Must demonstrate that those multiple claims lead to legally unacceptable results
o   Jurisdiction and Venue: yes there are two kinds of interpleader; and by far most will be brought by statutory interpleader because its easier
Rule Interpleader
Statutory Interpleader
Determining Diversity
Complete Diversity between the stakeholder and all claimants
Simple “Minimal” Diversity among claimants; satisfied if any one claimant is diverse from any other claimant