Parties

Question 1

Parties - Gral Reqs (2)

Answer 1

1) Real interest
2) Capacity

Question 2

Parties - Real Interest

Answer 2

• Real interest: action persecuted in name of person w/real interest

Question 3

Parties- Capacity

Answer 3

Capacity: of both P+ D to sue/be sued - Minor and incompetents act via guardian ad litem

Question 4

Parties - Joinder of Parties - Types

Answer 4

1) Permissive
2) Compulsory

Question 5

Parties - Compulsory Joinder of Parties - gral

Answer 5

• Exception to gral rule of P deciding who to suit (ojo also applies for P)
• Court requires person to join as party when “necessary” for just adjudication

Question 6

Parties - Compulsory Joinder of Parties - Causes of “necessity” of joinder for just adjudication (2)

Answer 6

1) Complete Relief
2) Rights being adjudicated

Question 7

Parties - Compulsory Joinder of Parties - Causes of “necessity” of joinder for just adjudication - Complete Relief

Answer 7

Absence of person does not permit complete relief for those who already are parties in cause

• contact crash in highway: C hits b, B hits A. A sues B, but also needs to join C

Question 8

Parties - Compulsory Joinder of Parties - Causes of “necessity” of joinder for just adjudication - Rights being adjudicated

Answer 8

If person claims interest related to action and needs to be party to protect it

• • i.e. of indispensable parties: all parties to a contract when contract dispute, all property owners, all named insureds
• • i.e. of non-indispensable party: all tortfeasors in tort case dont need to be joined

Question 9

Parties - Compulsory Joinder of Parties - Effect of absence of indispensable party

Answer 9

• When person cant be joined + court can not decide in equity and good conscience - Court will dismiss claim

Question 10

Parties - Compulsory Joinder of Parties - Party “cant” be joined when (2)

Answer 10

1) Not subject to service of process
2) Venue is improper

Question 11

Parties - Permissive Joinder of Parties - Gral

Answer 11

• When person is transactionally or factually related with some common question of law or fact of original claim

Question 12

Parties - Permissive Joinder of Parties - Causes for court to order separate trial (4) EDUP

Answer 12

• Court can order to separation when presence of a party can cause:
  1) embarrassment
  2) delay
  3) undue expense
  4) prejudice

Question 13

Parties - Permissive Joinder of Parties - Joinder of D’s Rules

Answer 13

Permissive joinder of defendants is allowed if:

1) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
2) any question of law or fact common to all defendants will arise in the action.

Question 14

Parties - Impleader - Concept

Answer 14

A procedural device used in a civil action whereby a defendant brings into the lawsuit a third party who is not already a party to the action but may ultimately be liable for the plaintiff’s claim against the defendant.

Question 15

Parties - Impleader - Gral

Answer 15

• D1 brings D2 into civil action, under theory that if D1 liable to P, D2 is liable to D-2 - D1 = “3rd party P” / D2 = “3rd party D”
• Does not affect diversity for SMJ

Question 16

Parties - Impleader - Procedure

Answer 16

• Same procedure as to commencement action (file + service + summons)
• 14 days after filing and service of original answer
• 100 miles service radio rule applies

Question 17

Parties - Impleader - Court denial when + effect

Answer 17

• Unduly prejudicial to joined party
• Denial doesnt destroy original diversity jdx

Question 18

Parties - Interpleader - Concept

Answer 18

An equitable proceeding brought by a third person to have a court determine the ownership rights of rival claimants to the same money or property that is held by that third person.

Question 19

Parties - Interpleader - Gral

Answer 19

• When party is subject to mx liability and it is not sure what or in what portion it owes to whom
• Parties are joined and made to litigate among themselves to determine rights/priorities
• i.e. insurance policy proceeds with mx beneficiaries

Question 20

Parties - Substitution of parties - Causes for both P/D (4)

Answer 20

1) Death (90 days to present motion)
2) Becoming incompetent
3) Interest is transferred
4) Public officer ceases to hold office

Question 21

Parties - Substitution of parties - Formal requirements when D is substituted once action has already commenced

Answer 21

• Pleaded as motion within 90 days or cause dismissed
• Needs to be served with complaint and summons similar to the ones for original D

Question 22

Parties - Class Actions - Concept

Answer 22

When 1 or more people similarly situated may sue or by sued as a representative of class (of P or D) with common interest in suit

Question 23

Parties - Class Actions - Gral

Answer 23

• Allow for pursue of claims with significant aggregate effect but to small to justify individual legal redress
• Courts with heavy discretion to certify
• • BUT under guidelines of FRCP 23 (CULP) + additional factors

Question 24

Parties - Class Actions - Court certification guidelines - CULP

Answer 24

1) Common (and relevant) question of law or fact among P’s
2) Usual (typical) claims or defenses for all other class members
3) Large membership - as to make joinder impractical
4) Protection of class members interests by representation of fairly/adequately - i.e. attorneys experience

Question 25

Parties - Class Actions - Court certification guidelines - CULP - Large membership - Number definition

Answer 25

1) State courts decide own number 2) Fed courts subject to Class Actions Fairness Act require at least 100 members w/aggregate $5M claim floor

Question 26

Parties - Class Actions - Court certification - Additional Factors (other than FRCP23 guidelines) (3)

Answer 26

1) Risk of separate actions 2) Conduct of opposing party has made injunctive or declaratory relief appropriate 3) Common questions

Question 27

Parties - Class Actions - Court certification - Additional Factors - "Risk of Separate actions"

Answer 27

- Risk of creation of inconsistent judgments creating confusing standards of conduct - Risk of unadvertly affect rights/remedies of those who dont suit - i.e. claims paid from a limited fund on "first come first serve" basis

Question 28

Parties - Class Actions - Court certification - Additional Factors - "Common questions"

Answer 28

- Common question of law/fact by class members trump questions affecting individual members - court decides class action is the best way to adjudicate fairly and efficient by considering claims already commenced and mgmt difficulties - Possible claims have to be highly cohesive which is high threshold to prove - i.e. sexual discrimination cases - Relates with primarily pursuing $dx

Question 29

Parties - Class Actions - Member notice requirement post certification (2 types)

Answer 29

1) If common question class actions, best notice possible to all members identified through reasonable effort -Relates with primarily pursuing $dx 2) If no common question class action, court decides requirements. Relates with primarily pursuing equitable relief

Question 30

Parties - Class Actions - Member notice requirement post certification - Effects

Answer 30

1) Common question class actions: **they can opt out** - recovery benefits go to all those who didnt affirmatively requested exclusion - Relates with primarily pursuing $dx 2) Not Common question class actions: members notified of procedure and normally can not opt out - Relates with primarily pursuing equitable relief, i.e. injunction

Question 31

Parties - Class Actions - Implicit Requirements (to guide court discretion) (3)

Answer 31

1) Mootness (no mootness of claim) 2) Representative of class has standing + is member of class 3) Class is "defined" under feasible standards

Question 32

Parties - Intervention - Gral

Answer 32

- When 3rd party seeks official status of 3rd party in litigation - On grounds of being adversely affected by result

Question 33

Parties - Intervention - 3rd burden of proof

Answer 33

Show practical + important affectation by outcome of litigation

Question 34

Parties - Intervention - Denial by court when

Answer 34

If intervention unduly delays or prejudices the rights of original parties