Joinder

Question 1

What is joinder?

Answer 1

The process of combining multiple parties or claims into a single lawsuit

Question 2

For joinder to be permissible, what two things must be true?

Answer 2

1. Joinder must be permitted by the FRCP
2. There must be SMJ over the case

Question 3

When can a plaintiff join claims under FRCP?

Answer 3

P may join any additional claim he has against D even if it is unrelated to the original claim

BUT there must be SMJ

Question 4

What is required to have claims by multiple plaintiffs and/or claims against multiple defendants?

Answer 4

These claim must…
(1) Arise from STO
(2) Raise 1+ common question of law or fact

SAME TEST FOR CO-Ds or CO-Ps

Question 5

When might the court force a nonparty/absentee to join the case? What does the process look like

Answer 5

D moves for failure to include an indispensable party. The court grants the motion.

Three Questions
1. Is the absentee necessary?
* No: No Joinder
* Yes: Continue
2. If so, can the absentee be joined?
* Yes: Joinder
* No: Continue
3. If the absentee cannot be joined, can the case proceed anyways?

Question 6

STEP 1: When is an absentee “necessary?”

Answer 6

• Without the absentee, the court cannot accord complete relief among the existing parties (worried about multiple suits); OR
• The absentee’s interest may be harmed if she is not joined; OR (MOST COMMON)
• The absentee claims an interest that subjects a party (usually D) to a risk of multiple obligations.

Question 7

Are joint tortfeasors ever necessary parties?

Answer 7

No

Question 8

STEP 2: When CAN an absentee be joined? IOW, when is joinder feasible?

Answer 8

1. When there is PJ over the absentee; AND
2. There will be federal SMJ over the claim by or against the absentee

Question 9

When is there PJ over an absentee?

Answer 9

1. Contacts-Based PJ; OR
2. If the absentee is served within a district of the United States and not more than 100 miles from where the summons was issued

Question 10

STEP 3: What happens if the absentee cannot be joined?

Answer 10

Court decides whether to proceed without the absentee or dismiss the case.

FACTORS
* Is there an alternative forum available?
* What is the likelihood of actual harm to the absentee?
* Can the court shape relief to avoid that harm?

Question 11

What is a counterclaim?

Answer 11

A claim against an opposing party (a party who has asserted a claim against them)

Question 12

Where does D assert a counterclaim?

Answer 12

In D’s Answer

Question 13

Under Rule 12, when must P respond to D’s counterclaim?

Answer 13

Within 21 days of service of the counterclaim

Question 14

When are D’s counterclaims compulsory?

Answer 14

When they arise out of STO as P’s claim

Question 15

What happens if D does not include a compulsory counterclaim in her answer?

Answer 15

She waives the claim (unless she already filed the claim in another case)

Question 16

When is D’s counterclaim permissive?

Answer 16

When it does not arise from STO as P’s claim

Not waived and D can sue in another case

Question 17

For D to join her counterclaim in a lawsuit, what must be true about the counterclaim?

Answer 17

There must be SMJ over the counterclaim (FQ, Diversity, Supp)

Question 18

What is a crossclaim?

Answer 18

A claim against a co-party (usually D against D)

Question 19

Must a crossclaim arise from STO as the underlying action?

Answer 19

Yes

Question 20

When is a crossclaim compulsory?

Answer 20

NEVER

Question 21

What is an impleader claim?

Answer 21

A claim where D is bringing in a new party (called the third-party P)

Question 22

Why is an impleader claim used?

Answer 22

To shift to TPD the liability that D will own to P

D is trying to get TPD to pay all or part of his own liability

Look for claims of indemnity or contribution

Question 23

When is an impleader claim compulsory?

Answer 23

NEVER

Question 24

What is the only type of compulsory claim?

Answer 24

A counterclaim (D against P)

Question 25

How does D implead a TPD?

Answer 25

D must: 1. Files a 3P complaint naming the TPD; AND 2. Have a complaint formally served on the TPD

Question 26

What is the time limit for D to implead a TPD?

Answer 26

Within 14 days of serving the answer OR later with court permission

Question 27

After the TPD is impleaded, can he make claims against P? Can P make claims against TPD?

Answer 27

Yes and Yes. So long as the claims arise out of STO and there is SMJ over each claim

Question 28

Is there PJ over an impleaded party?

Answer 28

1. Contacts-Based PJ; OR 2. If the impleaded party is served within a district of the United States and not more than 100 miles from where the summons was issued

Question 29

What is intervention?

Answer 29

The process by which a nonparty absentee brings herself into the case (as either a P or D)

Question 30

What is the time limit on intervention?

Answer 30

Application to intervene must be timely

Question 31

When is an absentee's intervention "of right?"

Answer 31

When the absentee’s interest may be harmed if she is not joined, and that interest is not adequately represented by the current parties

Question 32

When is an absentee's intervention permissive?

Answer 32

When the absentee’s claim or defense and the pending case have at least one common question of law or fact, intervention would be permissive and discretionary with court Usually allowed unless it would cause delay or prejudice to someone.

Question 33

When does interpleader apply?

Answer 33

If separate actions might result in double liability against a stakeholder

Question 34

What does an interpleader suit accomplish?

Answer 34

An interpleader suit permits a person/stakeholder to require two or more adverse claimants to the stake to litigate among themselves to determine which, if any, has the valid claim to it.

Question 35

What is the difference between Rule 22 interpleader and § 1335 (statutory) interpleader?

Answer 35

Rule 22 interpleader requires (1) complete diversity between the stakeholder and all adverse claimants and in excess of $75,000 in issue, or (2) a federal question claim. Normal service and venue rules apply. Statutory interpleader requires only diversity between any two contending claimants and $500 be in issue. Service may be nationwide and venue is proper where any claimant resides.

Question 36

What is a class action?

Answer 36

a case in which representative(s) sue on behalf of a group

Question 37

Requirements for Class Action (4)

Answer 37

1. Numerosity Too many class members for practical joinder 2. Commonality There must be some issue in common to all class members 3. Typicality The class representative's claims are typical of the claims of the class 4. Representative Adequate The class representative will fairly and adequately represent the class

Question 38

What are the three types of class actions?

Answer 38

1. Prejudice Class treatment is necessary to avoid harm (prejudice) either to class members or to the non-class party (e.g., limited fund of money) 2. Injunctive or Declaratory Relief seeks an injunction or a declaratory judgment because the D treated the class members alike (e.g., employer policy) 3. Common Question or Damages (1) common questions must predominate over individual questions; and (2) the class action is a superior method to handle the dispute (e.g., mass torts)

Question 39

When does a case become a class action?

Answer 39

When the court grants a motion to certify it as a class action. Court must: 1. define the claim and class 2. appoint class counsel

Question 40

How does SMJ work for class actions?

Answer 40

Either FQ or Diversity Diversity - only the citizenship of the class rep is considered, and her claim must exceed $75,000

Question 41

What does the Class Action Fairness Act (CAFA) do?

Answer 41

It lets a federal court hear a class action if: * There are at least 100 members; * Any class member, not just the representative, is of diverse citizenship from any defendant; and * The aggregated claims of the class exceed $5 million.