Civil Procedure II Outline

CIVIL PROCEDURES II OUTLINE

I. JOINDER- the power of joinder is to bind parties to that judgment to prevent future suits. Keep in mind who is going to use it.
Þ When analyzing a joinder problem ask these questions:
o Is the joinder of a claim by either a P or D involved?
o Is the joinder of a party involved?
o Does the court have original jurisdiction (federal question/diversity) over the claim/party so joined? If not, then
o Does supplemental jurisdiction (1367) exist to allow the court to have jurisdiction over the claim/party so joined? If not, the claim cannot be brought or party can’t be joined.
A. JOINDER OF CLAIMS- a plaintiff may have more than one claim against a D & a D may have claims against the P.
Þ What claims can a party bring (P or D)? This involves rule 18
§ P adds a second claim against a single D.
§ P can aggregate the claims
§ Supplemental jurisdiction is available
§ Second claim must have:
o Subject Matter Jurisdiction (original, diversity, or federal question)
o PJ over each claim
o Venue is debated- if one proper then proper over all claims
1. Joinder of Claims by Plaintiff
§ RULE 18 Joinder of Claims and Remedies- open arms rule; 4 lane hwy to the promise land. Rule 18 allows for joinder of claims.
(a) A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or TP claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party.
A party (single P/single D) can bring as many claims as they have against a single D in a single litigation and claims can be completely unrelated.
v Aggregation of claims- If a single P has a claim in excess of $75K, he may add to it any other claim of his against the same K, even though these other claims are for less than the jurisdictional amount. This is done by the doctrine of supplemental jurisdiction. Also, even if P does not have any single claim worth more than $75K, he may add together all of his claims against a single D. So long as these claims against a single D total more than $75K, the amount in controversy requirement is satisfied.
v Problem= every claim that is brought has to have its own basis in Fed SMJ(traffic stop cop) or the federal court may foreclose, so examine whether the claim has a right to be there.
v Doctrine of Claim Preclusion- Rule 18 is limited by this doctrine which requires that certain claims must be brought at the same time or they will be lost.
v Remember: Federal Court is limited in its jurisdiction (if no federal question, diversity, or supplemental =no Federal Court Jurisdiction )
2. Claims by the Defendant: Counterclaims
§ RULE 13 Counterclaim and Cross-claim- P sues D, D believes he has his own claim against P; a right back at you P; complete role reversal occurs.
(a) Compulsory Counterclaims- does arise out of the transaction or occurrence that is the subject matter of P’s claim=supplemental jurisdiction 1367(a). It can be a lawyer’s nightmare; it is not discretionary. You have a compulsory claim and you didn’t bring it you will be barred forever from bringing it in a subsequent proceeding. It will be barred under the Doctrine of preclusion (an order barring a litigant from presenting or opposing certain claims or defenses for failing to comply with a discovery order)
§ Supplemental jurisdiction is available if needed; look for an independent basis first
§ D’s claim must arise out of STO
§ Same core set of operative facts test to determine whether it is the same STO which gave rise to P’s claim
§ Must bring it or you lose it
Ø Exceptions
o If claim was not ripe at the time they averred their answer can’t be counterclaim; if it does exist at the time of the pleading
o If claim is already the subject of another independent lawsuit in another court
o If joining that claim will require the joinder of a party in which the court does not have jurisdiction (like joinder under rule 19 circumstance= not compulsory counterclaim)
(b) Permissive Counterclaims- does not arise out of the same transaction or occurrence; completely unrelated= no supplemental jurisdiction or claim preclusion because it did not arise out of the same transaction or occurrence but I can still bring it because of Rule 18 provided that permissive counterclaim has a basis in federal SMJ.
§ Does not arise out of STO
§ Can be brought in a separate/subsequent suit
§ Must have an independent basis for subject matter jurisdiction
§ Assume supplemental jurisdiction is not necessary- unless the claim was brought solely for the purpose of setoff (if P loses the original claim then D loses his claim)
(g) Cross-claim Against Co-Party- there is no such thing as a compulsory cross-claim; usually seen on D’s side
of the v; two Ds in the case. D1 wants to assert his own claim against D2 for a derivative or secondary claim based on the theory of contribution or indemnification. I have a right to contribution/indemnity and you agreed contractually in writing to make me whole. Remember it is the same side of the v of party who wants to assert this claim and supplemental jurisdiction will attach to the cross-claim. Claim against co-party D1, never mandatory, and qualifies under supplemental jurisdiction by arising out of the same…if you want to raise a cross-claim you can and it can be done in a subsequent point in trial.
§ Aggregation of claim against co-party
§ Claim between two co-parties
§ Can be used by any party; P, D, or Co-parties
§ Look to the same side of the “v”
§ Has to arise out of STO (derivative)
§ Use same set of operative facts to determine derivative claim
Ø Proper Cross-claim
o Same core set of operative facts test
o Supplemental jurisdiction if needed
o They are always permissive (from a preclusion standpoint) so you can bring it in a subsequent suit
(i) Separate Trials; Separate Judgments- sometimes courts will determine that it is better to have separate trials as to counterclaims and cross claims.
a. Plant v. Blazer Financial Services lady didn’t pay her loan
§ Tests used by the Courts to Determine whether a D’s claim arises out of the same transaction or occurrence as P’s original claim:
1. Are the issues of fact and law raised by the claim and counterclaim largely the same? Same core set of operative facts
2. Would res judicata bar a subsequent suit on D’s claim absent the compulsory counterclaim rule?
3. Will substantially the same evidence support or refute P’s claim as well as D’s counterclaim?
4. Is there any logical relation between the claim and the counterclaim?
The logical relation test is a loose standard which permits “a broad realistic interpretation in the interest of avoiding a multiplicity of suits.” The hallmark of this approach is flexibility. It exist when the counterclaim arises from the same “aggregate of operative facts” in that the same operative facts serve as the basis of both claims or the aggregate core of facts upon which the claim rests activates additional legal rights, otherwise dormant, in the D.

B. JOINDER OF PARTIES
1. By Plaintiffs
Þ Can multiple Ps join in one lawsuit against a D (or can a P sue multiple Ds in lawsuit)?
§ P’s ability to join multiple parties
§ P controls the lawsuit, who will be co-P or co-D
§ Supplemental jurisdiction is available if a federal claim is the anchor claim
§ To join multiple parties:
o Two part test:
a. Logical relationship test- must arise out of the same transaction or occurrence or series of transactions; and
b. Must have a common question of law or fact (need only one)- Just a common question of fact is necessary; not all questions of facts. So if one common question of fact joinder under rule 20 will not be defeated Mosley v. General Motors Corp. discrimination case where Ps want to join under Rule 20 & Buffalo Creek Disaster
o Analysis for Rule 20
a. Pass the test
b. PJ over each D
c. SMJ- key issue will be diversity
d. Venue must be proper
§ RULE 20 Permissive Joinder of Parties- is to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits. Single trials tend to lessen the delay, expense and inconvenience to all concerned.
(a) All persons may join in one action as Ps if they assert any right to relief jointly, severally, or in the alternative 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) The district court has the discretion to order separate trials or make such other orders as will prevent delay or prejudice.
§ If you have multiple Ps asserting a claim against a single D, as long as complete diversity exist between the P and as long as at least one P meets the jurisdictional amount supplemental jurisdiction can be available for joinder under rule 20 for the remaining Ps even if their claims do not meet the jurisdictional amount Exxon Mobil Corp. v. Allapattah
§ RULE 21 Misjoinder and Non-Joinder of Parties- it is used for purposes of convenience and avoidance of confusion. It permits the severance of that party and avoids dismissal of the lawsuit for misjoinder. Even where joinder is proper it might create problems for jury confusion if all joined. Rule 42(b) is the discretionary power of the courts to sever actions into separate trials/claims particularly when we are talking about Rule 18, so the court will allow case to go thru up to discovery and the point of trial then separate to avoid confusion.
2. By Defendants: TP Claims
§ D then becomes a TPP and serves a TP complaint on the TPD they are suing