Joinder (Module 9) Flashcards

(24 cards)

1
Q

Joinder Requirements

A
  • Authorized by Rule
  • SMJ
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1
Q

Joinder by Plaintiff

A
  • P may join as many claims as P has against D (even if unreleated)
  • Must be SMJ
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2
Q

Multiple Plaintiffs and Defendants*

A

claims by multiple plaintiffs or against multiple defendants must:
1. arise from the same transaction or occurrence (“T/O”); and
2. raise at least one common question of law or fact.

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3
Q

Necessary and Indispensable Parties

A
  • Is the absentee necessary (or “required”)?
  • If the absentee is necessary, can the absentee be joined? AND
  • If the absentee can’t be joined, can the case proceed anyway?
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4
Q

Is the Absentee “Necessary”*

A
  • 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
  • The absentee claims an interest that subjects a party (usually the defendant) to a risk of multiple obligations.

The second is the most likely one that you’ll encounter on the exam. And note that joint tortfeasors are never necessary.
* Joint tortfeasers are never necessary

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5
Q

Can the Absentee be Joined*

A

Feasible if:
* PJ over absentee; and
* Federal SMJ over claim by or against absentee

If joinder of the absentee is feasible, the absentee is simply joined to the case. If the absentee is served within a district of the United States and not more than 100 miles from where the summons was issued, there is PJ over the absentee regardless of contacts with the forum. Otherwise, you need traditional contacts-based PJ.

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6
Q

What if Absentee Cannot be Joined?*

A

Proceed without the absentee or dismiss the entire case. It looks at these factors:
* Is there an alternative forum available? (maybe some state court);
* What is the actual likelihood of harm to the absentee?; and
* Can the court shape relief to avoid that harm to the absentee?

So “necessary” is an odd label; don’t let that trip you up. You don’t necessarily need a necessary party’s presence to continue with the case. It’s just necessary to join him if feasible. But if the court decides to dismiss rather than proceed without the absentee, the absentee is called “indispensable.”

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7
Q

Counterclaim*

A

Any claim back agianst complaining party - usually by defendant against plaintiff
* Response required within 21 days of service
* Counter claim is part of defendants answer
* P must reponse within 21 days of service of the counterclaim (Rule 12)

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8
Q

Compulsory Counterclaim

A
  • Arises from the same transaction or occurrence
  • Use it or lose it
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9
Q

Permissive Counterclaim

A
  • Not same transaction or occurence
  • Not lost - can sue in seperate case
  • SMJ is often the issue (need diversity or federal question) (If none, go on to check supplemental)
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10
Q

Crossclaim

A

Claim against co-party arising from same transaction or occurrence

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11
Q

Impleader (Third-Party Claim)*

A

Brings in new party for indemnity or contribution
* Party bringing the claim is called a third-party plaintiff and the new party is called a third-party defendant (“TPD”).
* An impleader claim is used to shift to the TPD the liability that the defendant will owe to the plaintiff. So if the defendant is found liable to the plaintiff, he will try to get the TBD to pay all or part of his own liability.
* Look for claims for indemnity or contribution.
* Indemnity shifts liability completely (so the TPD must cover the full claim). Contribution shifts it pro-rata (so the TPD must cover a pro-rata portion of the claim).
* An impleader claim is permissive, meaning that the defendant need not bring it in the current case. Remember that the only compulsory claim is the compulsory counterclaim.

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12
Q

Process for Impleading TPD into Case*

A

To implead a third party, the defendant must (1) file a third-party complaint naming the TPD and (2) have that complaint formally served (that is, served like an original complaint) on the TPD. There is a right to implead within 14 days of serving the answer. After that, court permission is needed.

a. TPD and Plaintiff May Assert Claims
* After the TPD is joined, the plaintiff may assert claim(s) against the TPD, and the TPD may assert claim(s) against the plaintiff, that arise out of the same T/O as the underlying case.

b. But Subject Matter Jurisdiction Is Required
* Remember to assess each claim separately for SMJ. Try diversity or FQ SMJ first. Then, if neither works, try supplemental jurisdiction. And remember the limitation on use of supplemental jurisdiction in diversity cases: The limitation applies only to claims by the plaintiff, if at all, and a TPD is not a plaintiff.

c. Personal Jurisdiction “Loophole”
* Like an absent party, there is PJ over an impleaded party if he is served in a district in the United States and not more than 100 miles from the federal court that issued the summons regardless of his contacts with the forum. If more than 100 miles, there must be traditional contacts-based PJ.

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13
Q

Intervention

A
  • A nonparty absentee uses intervention to bring herself into the case.
  • Come in either as a plaintiff to assert a claim or as a defendant to defend a claim.
  • Court may realign the intervening party if it thinks the absentee came in on the “wrong” side.
  • Application to intervene must be “timely.”
  • Intervention can be “of right” or “permissive.”

must assess whether the claim by/against the intervenor invokes diversity or FQ SMJ. If neither applies, then you try supplemental. But remember that a claim by an intervenor plaintiff in a diversity case is a claim by a plaintiff, so the limitation on supplemental jurisdiction may apply.

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14
Q

Intervention of Right

A

If the absentee’s interest may be harmed if she is not joined, and that interest is not adequately represented by the current parties, intervention is “of right.”
* Basically the same test as one of the tests for necessary parties.

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15
Q

Permissive Intervention

A
  • If the absentee’s claim or defense and the pending case have at least one common question of law or fact
  • Permissive and discretionary with court.
  • Permissive intervention is usually allowed unless it would cause delay or prejudice to someone.
16
Q

Interpleader (rarely tested)

A

Stakeholder holds property and forces claimants to litigate the ownership of the property in one case
* Rule 22 interpleader requires diversity (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.

17
Q

Certifying a Class Action (4 Requirements)

A class action is a case in which representative(s) (“rep(s)”) sue on be

A
  1. Numerosity (Numerosity means that there are too many class members for practicable joinder. There is no magic number)
  2. Commonality (There must be some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke)
  3. Typicality (The class rep’s claims are typical of the claims of the class.)
  4. Representative Adequate (The class rep will fairly and adequately represent the class.)
18
Q

Types of Class Actions (3 Types)

A

a. Type 1: Prejudice
For Type 1 class actions, class treatment is necessary to avoid harm (prejudice) either to class members or to the non-class party. These types of class actions are rare.

b. Type 2: Injunctive or Declaratory Relief
A Type 2 class action seeks an injunction or a declaratory judgment because the defendant treated the class members alike. Plaintiffs in a Type 2 class action generally cannot seek damages.

c. Type: Common Question” or “Damages
For a Type 3 class action, (1) common questions must predominate over individual questions; and (2) the class action is a superior method to handle the dispute. This type of class action is frequently used for mass torts. Most likley tested

19
Q

Court Must Certify Class

A

The rep’s complaint will say “class action.” But a case is not a class action until the court grants the motion to certify it as a class action. The court also must:
* Define the class and the class claims, issues, or defenses; and
* Appoint class counsel, who must fairly and adequately represent the interests of the class.
* Certification is immediately appealable

20
Q

Notice to Class

A

In a Type 3 class action, the court must notify class members that they are in a class. This means individual notice (usually by mail) to all reasonably identifiable members. The notice, paid for by the rep, tells the class members various things, including that they:
* Can opt out; (not right to opt out in Type 1 or 2)
* Will be bound by the judgment if they don’t opt out; and
* Can enter a separate appearance through counsel.

This notice is not required in Type 1 or Type 2 class actions.

21
Q

Settlement of Class Actions

A
  • The parties can settle or dismiss a certified class action only with court approval.
  • In all three types, the court must give notice to the class members to get their feedback on whether the case should be settled or dismissed.
  • If it’s a Type 3 class, the court also might refuse to approve the settlement unless members are given a second chance to opt out.
22
Q

SMJ in Class Actions

A
  • FQ jurisdiction may be used.
  • For diversity cases, only the citizenship of the class rep is considered, and her claim must exceed $75,000. The claims of other class members are ignored. That means that as long as the class rep’s claim meets the requirements of diversity, the class action may use diversity.
23
Q

Class Action Fairness Act (“CAFA”)

A
  • Special grant of SMJ
  • Class =** At least 100 members**
  • Any class member diverse from D
  • Aggregated claims exceed $5m
  • Any D may remove to federal court
  • Local actions stay local (just about people in a single forum state)