Civ Pro II Outline
Benson
Spring 2011
I. Joinder
a. FR19 à Required Joinder of Parties (Compulsory Joinder)
i. When a 3rd party who is not party to a suit belongs in the suit
ii. é∆’s will file 12(b)(7) MTD for failure to join party under FR19
1. Party to be joined MUST be:
a. FR19(a) Necessary
i. FR19(1)(A) à court cannot accord complete relief among existing parties w/o 3rd party
1. i.e., usually involves real estate; all parties to a deed must be present in order to modify deed
ii. FR19(1)(B) à divided into 2:
1. Absentee party has interest in controversy
a. “Interest”: a right, obligation or ownership à something the law will recognize, protect & enforce
b. “Practical matter”: nothing to do w/ legal aspect; 3rd party’s interest in being injured/harm
2. Protection of existing parties
a. 3rd party is necessary for the protection of a party already in suit
i. i.e., Joint bank account of couple, bank needs to be protected
iii. IF YES à court must add party; subject to feasibility
b. Feasible
i. NOT feasible when there is no PJ or SMJ
1. IF adding party destroys diversity
a. THEN courts have no power to hear claim
2. IF venue is improper
a. THEN add party [if there is PJ]; however, court has to dismiss if party moves to dismiss for improper venue
ii. IF NOT FEASIBLE GO TO FR19(b) à
c. FR19(b) Indispensible
i. Party is SO NECESSARY that suit cannot continue w/o them à if not indispensible then suit is thrown out; therefore, must find a way to join:
1. Equity and good conscience
a. Extent to which prejudice could be lessened/avoided
b. Can π re-file in state court if dismissed due to lack of jurisdiction?
i. é Judge will be less inclined to dismiss if π can’t re-file à takes away π’s day in court
2. Party to be joined will be placed according
a. Either as ∆(s) or court will order π to add co-π
b. FR24 à Intervention
i. Occurs when an un-joined party WANTS to get into the lawsuit; existing parties may not want them there (they file Motion to Intervene)
1. 2 KINDS:
a. FR24(a) Intervention by Right
i. Unconditional right via statute OR
ii. Claim interest relating to property or tx subject to action & so situated that disposing may as a practical matter impair movant’s ability to protect its interest
1. UNLESS
a. Existing party adequately represents that interest
b. FR24(b) Permissive Intervention
i. Via statute, OR
ii. Party has claim/defense that shares in action a common question of law or fact
Common Law Requirements (2)
i. Class in suit must be capable of definition
1. Bright line rule à need to know who can be in the class and who can’t be
ii. Representative class member must be a member of class
1. Law requires member of party to have a financial stake in the matter [to avoid abandonment, ulterior motives, etc.]
d. FR23(a) Prerequisites à MUST meet all 4 to have CL class action suit
é determines whether case is appropriate for class action
i. Numerosity
1. Must be a class so large in number that it would be impracticable to adjudicate in ordinary fashion
ii. Commonality
1. All class members must share a common question of law/fact
iii. Typicality
1. Representative class member’s claim must be typical of the class’ claims as a whole
a. This person should have mean average in damages
iv. Adequacy of Representation
1. Rep. class member will fairly/adequately protect interest of class
a. Rep. must be situated enough to stand litigation [sort of overlaps typicality]
