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Civil Procedure I
University of Oregon School of Law
Girvan, Erik J.

Girvan – Civil Procedure Outline – Fall 2016

Fairness v. Efficiency / Administrability v. Flexibility

– Multiple π’s Δ’s or claims

Counter Claims:

Compulsory Counterclaim

Rule 13(a): requires a defending party to put forward any claim that she has against any opposing party, if it “arises out of the transaction or occurrence” that is the subject matter of the opposing party’s claim.

“Same transaction or occurrence” is tested by (1) whether the legal or factual issues raised by the claim and counterclaim are largely the same; (2) whether substantially the same evidence supports or refutes both the claim and the counter claim; and (3) whether there is a logical relationship b/w the claim and the counterclaim.

Meant to evaluate the extent of factual overlap between what the plaintiff must establish to prove its claim and what the defendant must establish to prove its counterclaim.

Failure to assert a compulsory counter claim bars a defendant from bringing the claim in the future

Permissive Counterclaim

Rule 13(b): Permits a defendant to file any claim that is not compulsory against a plaintiff

Crossclaim against a Coparty:

Rule 13(g): Parties are permitted, but not compelled, to assert a claim against a coparty that arises out of the same transaction or occurrence that is the subject matter of the original action or of a counter claim, or if it relates to property that is the subject matter of the original action

Coparties become opposing parties after one such party pleads a crossclaim against the other, thus making any counterclaim compulsory

Only applies if the initial crossclaim includes a substantive claim

Additional Plaintiffs and Defendants:

Permissive Joinder of Parties

Rule 20(a):

20(a)(1) Plaintiffs: Persons may join in one action as plaintiffs if (1) some right to relief is asserted on behalf of each plaintiff related to or arising from same transaction or occurrence or series of transactions or occurrences; and (2) any question of law or fact common to all plaintiffs will arise in the action

“Same transaction or occurrence” test above; logical relationship; common purpose

20(a)(2)Defendants: Persons may be joined in one action as defendants if (1) some right to relief is asserted against them with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (2) any question of law or fact is common to all defendants will arise in the action

20(b) Protective Measures: The court may issue orders, including separate trials, to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom a party asserts no claim and who asserts no claim against a party

Rule 21: Misjoinder

Can split; not grounds for dismissal

Joinder of Claims:

Rule 18(a): 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

Broad allowance (efficient)

Personal Jurisdiction – Nonresident Δ OR property in state

General: PJ regardless of Def’s activities in forum state

Waiver/Consent: Agrees to choice of forum (Plaint always)

Defendant Domiciled: A Def can be sued where they are domiciled, i.e. where they are present and intend to stay indefinitely – judged at time of filing

If a corporation, state of incorporation and PPB (Nerve

stic approach, entire sequence of events, both parties, write out contacts with each possible state

If no district possible as provided, then any district where a Def is subject to personal jurisdiction

Transfer w/in same court system proper?(Fed-F/St-Same St)

For the convenience of parties and witnesses, in the interest of justice… (eff v. fairness)

Balancing test: Conv. of parties and wit. and interests of justice outweigh reasons to stay? (Plaint. chose)

Private interest factors: ease of access to proof, availability of witnesses, viewing area of incident, practicality – expense, ease, expediency (nuts and bolts of lit)
Public interest factors: ct’s ability to administer, having local controv decided at home, at home with law that should govern action, avoidance of conflict with other laws/app foreign law, burden of jury duty on citizens of unrelated forum

Allows change of venue to any district or division where claim might have been brought, or to any district to which all parties consented

“Might have been brought” = satisfies 1391(b)

Forum non Conveniens: Allows for the dismissal of a claim so that it can be brought in a more appropriate forum in another court system – when ct can’t transfer but other venue proper

-Same balancing test as 1404(a)

-Another forum must be “available and adequate”

: Only if venue is improper, ct has discretion to transfer case to proper venue or dismiss