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



Positive law:

Rule 20 – Permissive Joinder of Parties (not claims)

(2)(a) “arising out of the same transaction, occurrence, or series of transactions or occurrences”
Common Questions of Law or Fact.
Extent of factual overlap.

Bittortent Swarm does not satisfy 20(a) “on different days and times over a two-week period” and so “there was no evidence to suggest that they ‘acted in concert’”- they were not all part of the same transaction at the same time so they cannot be joined.

Rule 13 1a – compulsory counter claim – arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.

Common Questions of Law or Fact.
Extension of factual overlap.

Nasalock – A counter claim is not compulsory unless it arises out of the same “transaction or occurrence” as the claim itself. There is a 3-part test to rule 13(a):
Legal and factual issues are largely the same
Substantially the same evidence supports/refutes both claim and counter claim
Logical relationship btw claim and counter claim
In terms of a compulsory counter claim, you would see the same witnesses, the same evidence – the judge wants to hear all those things at one time for the purpose of efficiency and – fairness. When we make the D file a compulsory claim that means they are forced to litigate in the P’s court.

Rule 13b – Permissive Counterclaims

Can be brought at any time, so long as it’s not compulsory – use same test to determine

Rule 13g – Cross Claim

Between parties on same side of the <
Not Compulsory (must use same transaction or occurrence test to rule out counter claim, so you can bring it)
Rule 13 g13(g) A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim
Rainbow Ltd:
Coparties become opposing parties after one pleads cross claim against another
But this pleading must include a substantive claim
They are then bound by 131(a) and must make compulsory claims


Cross Claim – btw. Co def or co. Plain.
Counter Claim – against opposing party after original claim has been filed
Third Party Plaintiff – Original defendant
Third Party Defendant – New Defendant brought in by original D (i.e. insurance company)

Aquaslide – Rule 15 (a) says motions to amend “shall be given freely when justice so requires.” This was possibly a matter of justice – was it or wasn’t it their slide?

Advanced Joinder – Impleader, Necessary Parties, Interpleader

Review Rule 20 – “same transaction or occurrence”

Rule 18 – additional claims can be added once parties are joined properly

Rule 13 – Counter and Cross (compulsory/permissive)

Advanced joinder is about other people implicated who may need to be parties (i.e. multicar accident scenario where an insurance company is joined as a 3d party D using Impleader).

Impleader – Rule 14

D. can serve a non-party who may be liable for the claim.

Impleaded party can assert any defense the orig. D can, under rule 12

What is the threshold for a Def. to bring in a new party?

Claim must be derivative of the main claim – not a separate claim

And contingent: potential liability of 3d pty D must be contingent on outcome of orig. claim (totally turn on finding in that claim – damages sought are damages owed to P.)

Mitchell v. Hood (incorrectly implead Judge Anderson-Tryer) – claims were not derivative. Mitchell’s claim against Hood was defamation. Then Hood implead Tryer with claims of identity theft.

Indispensable Party/Required Joinder of Parties – Rule 19

A party is req’d to be joined if in their absence to court

A) cannot accord complete relief or

B) person claims an interest that

i) may be impaired or impeded or

ii) creates risk of inconsistent obligations.

In Dawandewa v. Salt River Navajo Generating Station

Complete relief (that would be an injunction = hire the Hopi guy over Navajos.)
Impairment of legally protected interest (That would mean that breach the contract w/ N.N.)
Creates inconsistent obligations (B/c the guy wants the job, he doesn’t want money damages)

Rule 19(b) – If party cannot be joined (likely PJx issues) then court must decide to dismiss or hear. N.N. has sovereign immunity, so can’t be joined.

Prejudice to any party
Relief can be shaped to lessen the p

y ($5 claims).

-predominance: common issues of law predominate

– superiority: class action is the best vehicle – enough common issues that = time efficiency compared to individual lawsuits or Rule 20 Joinder. Small dollar claims (incentive to certify as class) is a big factor.


– choice of law: Court will want all “litigants governed by the same legal rules” – Bridgestone/Firestone. If federal claims then no problem, but states may have different laws, creating difficulty with nationwide P.s.

– Issue Preclusion: Court can do a partial certification of a class on a common issue (“was the airbag defective?”) and then the finding will preclude further litigation.

23c: Certification Order, Notice and Opt-Out

for b3 Classes = specs on nationwide notification, individual notice to all members who can be reasonably identified.


Positive law:

14th amendment Due process
State long Arm statutes (may be in line with 14th, more narrow, or more broad i.e. unconstitutional)

*** 4 Ways You Can Have Personal Jurisdiction ***

Domicile – you live there (citizenship) Pennoyer
Contacts – substantial, systematic, ties rendering corp “at home” = general – Daimler; purposefully injecting into stream of commerce of that state/purposeful availment = specific (worldwide Volkswagen, McIntrye, Paintball – none had purposeful availment)
Consent – Burger King franchise, you signed a contract saying you consent to it (or more directly, consent to the court)
Personal Service – papers served on you while physically present in the state (Burnham)


Territoriality/Sovereignty: state has exclusive jd over people and property within its borders (established in Pennoyer v. Neff, reaffirmed in Burnham – i.e. Tag Jdx = general)