Pg 21

Question 1

What is a counterclaim?

Answer 1

Request for affirmative relief against the opposing party. The parties are already adversaries, so it is compulsory that they litigate all claims from the same set of facts in a single action. Usually this is the defendant against the plaintiff

Question 2

If a defendant has a suit they would like to bring against the plaintiff, can they do it in a separate action?

Answer 2

Not if it is compulsory. Then they must do it as a counterclaim. If they bring it in a separate action that action will be dismissed because a counterclaim must be joined in the original suit and is waived if it is not brought then. If it is permissive, that is fine

Question 3

Is it possible to bring an unrelated counterclaim?

Answer 3

Yes, the defendant can use this to settle all disputes in a single action

Question 4

Why is “counterclaim” considered to be a naked word?

Answer 4

You must say permissive counterclaim or compulsory counterclaim

Question 5

What are the two different types of counterclaims?

Answer 5

– permissive counter claims

– compulsory counterclaims

Question 6

What is a compulsory counterclaim?

Answer 6

Any counterclaim that arises out of the same TNO must be brought into the suit, otherwise it will be lost and cannot be brought in a subsequent action. You get one bite at the apple and you need to bring all complaints together into one action

Question 7

Why do you not need SMJ for compulsory counterclaims?

Answer 7

Because they are compulsory

Question 8

What is the key for compulsory counterclaims?

Answer 8

TNO

Question 9

What are the elements for a compulsory counterclaim?

Answer 9

• must be against the opposing party
  – must arise from the same TNO as the claim against the party
  – must exist at the time the opposing party’s pleading is served on you

Question 10

If a counterclaim that is compulsory has no federal question or diversity issue, is it still allowed under supplemental jurisdiction?

Answer 10

Yes, even if it destroys diversity or doesn’t meet the AIC or is it a federal question. There are no barriers here because it is a compulsory counterclaim so it is required

Question 11

What are exceptions to compulsory counterclaims that would make them not compulsory?

Answer 11

• if the claim arises after the answer: counter claims must exist when the pleading happens in order for them to be compulsory
  – when another action is pending on the counterclaim at the time the opposing party’s pleading is served in the current action: not required to plead pending claim as counter claim
  – if the court cannot get jurisdiction over the parties whose presence is needed for the counterclaim

Question 12

What is the difference between a compulsory counterclaim and a permissive counterclaim?

Answer 12

• compulsory: it must be brought into the suit or it is lost

– permissive: it may be brought into the suit

Question 13

What is a permissive counterclaim?

Answer 13

Claims against someone on the other side of the suit that do not arise out of the same TNO or that exceed in the amount or different in kind from the relief sought by the opposing party may be brought into the suit, but are not required to be

Question 14

If six months before your car accident the plaintiff slandered you, is it required that you bring a counterclaim for the slander?

Answer 14

No, because it doesn’t arise from the same TNO so it is considered to be a permissive counterclaim. You can bring it all together if you want to or you can file it separately some other time

Question 15

Is SMJ essential for permissive counterclaims?

Answer 15

Yes

Question 16

What are crossclaims?

Answer 16

When there are multiple plaintiffs or defendants and you’re suing someone on the same side of the lawsuit (aka: a co-party). This is a claim by one defendant against his codefendant or a claim by one plaintiff against his co-plaintiff.

Question 17

What is required in order to bring a crossclaim?

Answer 17

It must arise from the same TNO and subject matter as the original claim

Question 18

If you have one proper crossclaim that can be asserted, what can you then do?

Answer 18

Add any other claims even if they are unrelated

Question 19

Are cross-claims considered to be permissive or compulsory?

Answer 19

Permissive. The only time that a cross claim will be compulsory is if the plaintiff is suing two defendants and the one defendant cross claims against the other D for injuries and the other defendant wants to assert against the first defendant for his injuries. This is compulsory because the second event is now opposing party to the first defendant and the claim arises from the same to you know

Question 20

Is SMJ required for crossclaims?

Answer 20

Yes, because these are permissive

Question 21

What is impleader?

Answer 21

Third-party claims. The defending party can, as a third-party plaintiff, serve a summons and complaint on a non-party who is or maybe liable to it for all or part of the claim against it.

Question 22

When do you have to get the court’s permission for impleader?

Answer 22

If more than 14 days have passed after serving the original answer

Question 23

What is the situation when impleader would be applicable?

Answer 23

If the defendant thinks another party is or may be responsible for what actually happened, he can bring in that third party, and that makes the defendant the third-party plaintiff who is bringing in the new defendant. The defendant then becomes a plaintiff and the new party is the defendant

Question 24

Explain the concept of third-party plaintiff

Answer 24

Originally the defendant had been sued by the plaintiff in the suit, but he becomes the plaintiff when he asserts a claim against a non-party

Question 25

If there is a car accident between the plaintiff and the defendant, but the defendant wants to sue the manufacturer who made the brakes and wants them to pay, what is that called?

Answer 25

Impleader

Question 26

What is the difference between indemnity and contribution?

Answer 26

– indemnity pays all | – contribution pays part

Question 27

How can a third-party defendant in an impleader case escape liability?

Answer 27

Liability depends on the outcome of the main claim, so he can escape liability if he can defeat the plaintiffs' original claim or the defendant's derivative claim against him

Question 28

Who decides if impleader is OK?

Answer 28

The court has discretion to refuse or entertain an employer claim

Question 29

What are the things that a court considers to decide whether impleader is proper?

Answer 29

- efficiency - avoidance of inconsistent judgments - delay involved if it is granted - complication of issues - potential prejudice to the plaintiff

Question 30

Does impleading affect a court's jurisdiction over the original claim?

Answer 30

No

Question 31

Is SMJ required over impleader claims?

Answer 31

Yes

Question 32

Are impleader claims considered to be permissive?

Answer 32

Yes, they do not have to be employed, but they can be

Question 33

What is the purpose of Impleader?

Answer 33

Meant to avoid the circuitry of the action and stop duplication of suits and closely related matters

Question 34

If you own a store and you buy products from a manufacturer, and a customer of yours injured himself with the product and he sues you for warranty, but you didn’t know the item was a defective, but the manufacture is the real culprit, what can you do?

Answer 34

You can sue for indemnity through impleader. You become third-party plaintiff and the manufacture is the third-party defendant

Question 35

In an impleader case, if the third-party defendant has any claims or defenses, what has to happen?

Answer 35

They have to be asserted as the defence against the third-party plaintiffs claim, counter claims claims have to be asserted against the third-party plaintiff, etc

Question 36

If a defendant claims that another person is liable directly to the plaintiff, not to the defendant, can the defendant implead that other person?

Answer 36

The defendant cannot implead him because that person isn’t liable to the defendant. He cannot foist an alternative defendant on the plaintiff. He can only employ impleader to recover all or part of the damages, so if the liability is an either/or proposition, he can’t claim against that person and that impleader will be denied. He can defend against the claim by saying that another person did it, but he cannot use impleader to force the plaintiff to sue another person

Question 37

Can a general contractor implead a subcontractor for indemnity?

Answer 37

Yes

Question 38

If a defendant is unsure whose fault something is, can he implead several parties that might be liable?

Answer 38

Yes