Civil Procedure Part 2

Question 1

Who are Necessary and Indispensable Parties?

Answer 1

An absentee (A) who meets any of these tests:

1. Without A, the court cannot accord complete relief among existing parties (worried about multiple suits); OR
2. A’s interest may be harmed if he is not joined (practical harm); OR
3. A claims an interest that subjects a party (usually D) to a risk of multiple obligations.

Question 2

What happens if the court decides to dismiss rather than to proceed without the absentee?

Answer 2

Then we call the absentee indispensable

Question 3

What circumstances bring about impleader? When can we use it? Why do we?

Answer 3

• D can only do this only to shift the liability that he owes to P. In other words, if D is found liable to P, he will try to get 3rd Party D (TPD) to pay all or part of his own liability.
• So an impleader claim is usually for indemnity (TPD has to cover the full claim) or contribution (TPD has to cover a pro-rata portion of the claim).

Question 4

Steps for impleading the TPD in the pending case:

Answer 4

a. D files a third-party complaint naming the TPD; and
b. Serve process on the TPD. (So must have PJ over TPD.)

Question 5

Timing for Impeader

Answer 5

There is a right to implead within 14 days of serving your answer.

After that, you need court permission.

Question 6

After TPD is joined, may plaintiff assert a claim against TPD?

Answer 6

Yes, if the claim arises from the same T/O as the underlying case.

Question 7

After TPD is joined, may TPD assert a claim against plaintiff?

Answer 7

Yes if the claim arises from the same T/O as the underlying case.

Question 8

Subject Matter Jurisdiction & Impleader

Answer 8

Remember to assess each claim separately for subject
matter jurisdiction. Try diversity and federal question. If neither works, try supplemental jurisdiction.

There does not need to be diversity between the 3rd party D and the P, but there does between both of the Ds.

Question 9

What is Intervention?

Answer 9

Here, the nonparty brings herself into the case. She chooses to come in either as P (to assert a claim) or as D (to defend a claim).

The court may realign her if it thinks she came in on the “wrong” side.

Application to intervene must be “timely.”

Question 10

What are the types of Intervention?

Answer 10

1. Intervention of right
2. Permissive intervention

Question 11

Intervention of Right

Answer 11

Intervention of Right occurs when you would be a necessary. Same rules. Thus if you are necessary, you may intervene

Question 12

Permissive intervention

Answer 12

A’s claim or defense and the pending case have at
least one common question.

Discretionary with court.

Usually OK unless intervention will cause delay or prejudice to someone.

Question 13

Intervention and SMJ

Answer 13

Assess claim by/against the intervenor for subject
matter jurisdiction (diversity or FQ. If neither applies, then try supplemental).

Question 14

In Class Actions, who sues?

Answer 14

Representative(s) (“Rep”) sues on behalf of group.

Question 15

Initial Requirements for Class Action and what about them

Answer 15

Must demonstrate all four of these:

1. Numerosity
   
   • Too many class members for practicable joinder - no magic #
2. Commonality
   
   • There is some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke.
3. Typicality; and
   
   • Rep’s claims are typical of those of the class
4. Representative adequate
   
   • The class representative will fairly and adequately represent class.

Question 16

Rep’s complaint will say “class action.” But a case is not a class action until what?

Answer 16

Until the court grants a motion to certify it

Question 17

And when the court certifies the class action, it must:

Answer 17

1. “define the class and the class claims, issues, or defenses.”
2. And Appoint class council

Question 18

What is required of class counsel?

Answer 18

Class counsel must fairly and adequately represent the interests of the class

Question 19

Can the parties settle or dismiss a certified class action?

Answer 19

Only with court approval

In all three types, the court gives notice to class members to get their feedback on whether the case should be settled or dismissed.

If it’s a Type 3 class, the court
might give members a second chance to opt out.

Question 20

How is Diversity for SMJ satisfied in class action?

Answer 20

For citizenship, consider only the rep (ignore other class members’ citizenships).

The reps claim must exceed $75,000

That means: As long as the rep is diverse from all defendants, and as long as the rep’s claim exceeds $75,000, the class action will invoke diversity.

Question 21

Class Action Fairness Act (CAFA)

Answer 21

This grants subject matter jurisdiction separate from diversity of citizenship jurisdiction.

It lets a federal court hear a class action (of at least 100 members) if any class member (not just the representative) is of diverse citizenship from any defendant and if the aggregated claims of the class exceed $5,000,000.

This makes it easier for interstate class actions to go to federal court.

• There are complicated provisions to ensure that local classes (where most class members and the primary defendants are citizens of the same state) do not stay in federal court; they get dismissed (or, if they were removed from state court, are remanded to state court).

Question 22

Claim Preclusion (Res Judicata)

Answer 22

You only get to sue on a claim once. So you only get
one case in which to vindicate all rights to relief for that claim

Question 23

Requirements for Claim Preclusion (Res Judicata).:

Answer 23

1. Case 1 and Case 2 were brought by the same claimant against the same defendant.
2. Case 1 ended in a valid final judgment on the merits.
3. Case 1 and Case 2 asserted the same “claim.”

Question 24

Requirements for Issue Preclusion (Collateral Estoppel)

Answer 24

1. Case 1 ended in a valid, final judgment on the merits.
2. The same issue was actually litigated and determined in Case 1
3. The issue was essential to the judgment in Case 1. That means the finding on this issue is the basis for the judgment.

Question 25

Against whom can issue preclusion be asserted?

Answer 25

It can only be used against somebody who was a party to Case 1 (or represented by a party in Case 1, like a class action), or in privity with a party in Case 1.

Question 26

By whom can issue preclusion be asserted?

Answer 26

Every court agrees that issue preclusion can be used by someone who was a party to Case 1 (or represented by a party). The big question is whether it can be used by someone who was not a party to Case 1 (or represented by a party).

Question 27

When someone who was not a party to Case 1 tries to use issue preclusion in Case 2, it is called:

Answer 27

“nonmutual” issue preclusion