Civil Procedure

Front 1

Joinder of Claims

Back 1

3 Sentences at most on exam:
1. In federal practice a π can join any claims he or she has against the .
2. In a state following the FRCP, a π can join any claims he or she has against the  because those are the Federal Rules.
3. If state X follows the more traditional rule of demanding a transactional relationship, use fact analysis to show that all the claims come from the same incident.

Front 2

Permissive Joinder of Parties:
2 Prong Test

Back 2

1 ¶ at most on exam.
T&O + CQ = Permissive Party Joinder
1. Claims or defenses stem from the same transaction; AND
2. There is a common question of law or fact binding the parties.

Front 3

Compulsory Joinder of Parties

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Rule 19(a)
1. Who is necessary and should be joined if possible?
a. Will parties be injured by failure to join outsider?
b. Will outsiders be prejudiced by result?
Exam Tip: Probably only situation in which outsider is not compulsory is tort action. Joint tortfeasors are NOT compulsory; π may only want or need to sue the rich .
2. Can you join the outsider? If not, why not?
Exam Tip: look out! Reason could be SMJ and/or PJ. If so, be ready to perform the entire analysis.
3. I can’t join this guy; what do I do now?
a. 12(b)(7) dismissal for failure to join and indispensable party; OR
b. Rule 19(b) Court can grant discretionary relief and probably will to avoid dismissal.

Front 4

Joinder by P
Claims Rule 18 (a)

Back 4

A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, as many claims as the party has against an opposing party.

Front 5

Joinder by P
Parties Rule 20

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20(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief … arising out of the same transaction, occurrence, or series of transactions or occurrences and if any common question of law or fact common to all these persons will arise in the action.

All persons may be joined in one action as defendants if there is asserted against them any right to relief … arising out of the same transaction, occurrence, or series of transactions or occurrences and if any common question of law or fact common to all these persons will arise in the action.

Front 6

Rule 20 (b)

Back 6

20(b) Separate Trials. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, and may order separate trials or make other orders to prevent delay or prejudice.

Front 7

13 (a)

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(a) Compulsory Counterclaims - A pleading shall state as a counterclaim any claim it has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But … (see exception).

Front 8

13 (b)

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(b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.

Front 9

13 (g)

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g) Cross-claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action.

Front 10

Joinder by D

Back 10

Claims 13 (a,b,g) Parties 14,19

Front 11

Joinder by D
Rule 14 (a)

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14(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff.

Front 12

Joinder by D
Rule 14 (b)

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14(b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted against a plaintiff, the plaintiff may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so.

Front 13

Joinder by D
Rule 19 (a)

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19(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if
(1) in the person's absence complete relief cannot be accorded among those already parties, or
(2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may :
(i) as a practical matter impair or impede the person's ability to protect that interest or
(ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.

Front 14

Joinder by D
Rule 19 (b)

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19(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(1) - (2) hereof cannot be made a party, the court shall determine whether the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

Front 15

Counterclaims

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1. Compulsory: Rule 13(a); use it or lose it. Underlying policy concerns: efficiency and economy. A counter claim is compulsory if it “arises out of the same transaction or occurrence” that is the subject matter of the ’s claim (counterclaim must be pleaded)
2. 4 Part Transaction & Occurrence Test to define when a claim or counterclaim arises from the same transaction: (from Plant v. Blazer Financial Services) State Courts will usually respect Rule 13(a); but it is not guaranteed. I.e., if you fail to pursue your compulsory counterclaim in federal Court, state Court will probably not allow a new suit on the same facts.
a. Are the issues of fact and law raised by the claim and counterclaim largely the same?
b. Would res judicata bar a subsequent suit on ’s claim absent the compulsory counterclaim rule?
c. Will substantially the same evidence support or refute ’s claim as well as ’s counterclaim?
d. Is there any logical relation between the claim and the counterclaim?
3. Permissive: Rule 13(b); everything else.
4. Exam Tip: Rule 13 pretty much allows a  to counterclaim against a π for anything he wants. Remember Pugsley said the title “plaintiff” doesn’t mean squat in Tort law; it just means you filed first.
5. Diversity Actions: If your compulsory counterclaim under Rule 13(a) is could not be plead alone (<$75k or no diversity), invoke §1367 Supplemental Jurisdiction and be sure to use the buzzwords:
a. Common Nucleus of Facts
b. Same Case or Controversy

Front 16

Cross-Claims

Back 16

Rule 13(g) (D vs. D)
1. Always Permissive
2. Can invoke §1367 if claim won’t stand alone.
3. Exam Tip: When in doubt, examine Transaction & Occurrence; it’s pretty much the basis of everything in CivPro, so if you’re blanking out, start writing about T&O.

Front 17

3rd Part Claims (impleader)
Rule 14

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Rule 14
1. Adding New Parties: Theoretically, an infinite number of parties may be added to the action, from retailer to manufacturer, to each-and-every supplier involved along the way.
2. Exam Tip: Remember that every party added means you must establish personal jurisdiction over all these parties. Big exam points here.
3. Can invoke §1367 if claim won’t stand alone.
4. 3rd party ’s counterclaiming back will probably be compulsory because permissive counterclaims are usually transactionally related and therefore NOT subject to supplemental jurisdiction.
5. Rule 14(a) Amendment: original π may amend complaint to directly assert claim against newly impleaded 3rd party .
6. Kroger Rule: Original π cannot assert supplemental §1367 claim against parties brought under Rule 14 (third party practice); Rule 19 & 20 (Basic Joinder Rules); and Rule 24 (Intervention). It does NOT say anything about Rule 13 (counterclaim and cross-claim).
7. Draw a picture; it’s the only way to figure this crap out.

Front 18

Compulsory Counterclaim

Back 18

A counter claim is compulsory if it “arises out of the same transaction or occurrence” that is the subject matter of the ’s claim (counterclaim must be pleaded)
4 Part Test to define when a claim or counterclaim arises from the same transaction: (from Plant v. Blazer Financial Services)
1) Are the issues of fact and law raised by the claim and counterclaim largely the same?
2) Would res judicata bar a subsequent suit on ’s claim absent the compulsory counterclaim rule?
3) Will substantially the same evidence support or refute D’s claim as well as D’s counterclaim?
4) Is there any logical relation between the claim and the counterclaim?

Front 19

Permissive Joinder of Parties: 2 Prong Test

Back 19

1 ¶ at most on exam.
TO + CQ = Permissive Party Joinder
1. Claims or defenses stem from the same transaction; AND
2. There is a common question of law or fact binding the parties.

Front 20

Interpleader Rule 22, 28 U.S.C. §1335
“You all figure out who I need to pay if I am liable (which I may not be)”

Back 20

Interpleader Basics
Defined: Interpleader is an equity device designed to protect persons in possession of property (stakeholders) the ownership of which is or may be claimed by more than one party. It is a device to resolve at one time the claims of many persons to one piece of property or sum of money, such as a bank account claimed by more than one person.

Policy Objective: So that the stakeholder will not have to pay the same claim twice.

Practical Application: Interpleader is a P’s tool to join all claimants at once; but may be employed by a D through use of cross-claim [Rule 13(g)], compulsory counterclaim [Rule 13(a)], or permissive counterclaim [Rule 13(b)].

Front 21

Intervention Rule 24
“I wasn’t invited, but I am coming anyway”

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Rule 24(a): Intervention of Right
Automatic, uncontestable right if:
1. Unconditional Right Granted by Federal Statute; OR
2. Applicant has interest in transaction or property + disposition will impair his interest - no existing party can adequately represent his interest

Front 22

Rule 24(b): Permissive Intervention

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At discretion of Court if:
1. Conditional Right Granted by Statute; OR
2. Common Question of Law or Fact; OR
3. Limited Purpose Intervention: Courts my grant intervention for limited purposes, such as contesting scope of protective orders and confidentiality agreements. Example: Environmental Lawyers intervene to contest Oil Co. settlement agreement ordering destruction of discovery documents which may show broader pattern of abuse contrary to public policy.

Front 23

Rule 24(b¹): Limited Purpose Intervention

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Judicial Expansion of Rule 24(b):
1. Limited Purpose Intervention: Courts my grant intervention for limited purposes, such as contesting scope of protective orders and confidentiality agreements.
2. Example: Environmental lawyers intervene to contest Oil Co. settlement agreement ordering destruction of discovery documents which may show broader pattern of abuse, suppression of which arguably would be contrary to public policy.

Front 24

Class Actions Rule 23:

Back 24

“We Were All Screwed Over!”

Front 25

23(A) CLASS PREREQUISITES (CEN C TAB)

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1. CLASS: is roughly definable and P is a member;
2. ECONOMY: Judicial Economy is Served;
3. NUMEROUS: Potential P’s too numerous for joinder;
4. COMMON LEGAL THEORY: Claims have a Common legal theory or arise out of the same transaction or occurrence;
5. TYPICAL: Claim of named P must be Typical of the class;
6. ADEQUACY OF REPRESENTATION: Named parties must Adequately represent the class;
7. B RULE 23(B): Action must fall within one of three categories of Fed Rule 23(b)
 Identifiable Class
 Named Ps (or Ds) are members of the class
 Numerosity
 Commonality
 Typicality
 Adequacy of Representation

Front 26

Rule 23 Jurisdiction

Back 26

Federal Question: Normal Rule Applies

Diversity: Class action is a representative action.
 Diversity is based on the representative. Just make sure you pick a P from another state.
 Amount in Controversy cannot be aggregated.
 If it’s classified as a 23(b)(2) injunctive claim, you would value the injunction and that could get you over the $75k
 Or you could file it in state court.
 But in a 23(b)(3) case you’d have a big problem if your individual claims were not each over the $75k requirement.

Personal Jurisdiction: Not the Shoe, Denkla, VW test. Focuses mostly on notice.
For 23(b)(3) damages case, requires:  Adequate representative  Notice Right to opt out. Not required for 23(b)(1) or (2) cases.

Supplemental Jurisdiction: In diversity cases will run into the Smith – Merrell problem. See flowchart for supplemental jurisdiction, supra.

Front 27

RES JUDICATA

Back 27

“Go Away, Leave Me Alone, I Don’t Want To Talk About It Anymore!”

Front 28

Res Judicata
(Claim Preclusion)

Back 28

PET M
Same Primary rights involved?
Same Evidence?
Same Transaction or Occurrence?
Judgment on the Merits

Front 29

Res Judicata Basics

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Res Judicata Basics
1. Definition: RJ means you cannot re-litigate a matter that you previously litigated or could have litigated.
2. Merger & Bar: The controverted matter (cause of action) is like a poker chip, you only get two choices: bet it or don’t bet it. You can’t break it in half and play part now and part later. Additional theories that could have been plead but weren’t are merged into the first judgment and further litigation is barred by RJ.
3. Claim for Relief is The Key: So, what’s the claim for relief (cause of action)? Is it litigation to preserve a right or to remedy a wrong? Courts have held both ways and a minority of jurisdictions still use the right-wrong test. But the majority position is to focus on the transaction. On the exam, focus on transaction & occurrence. If the claim arises from the same transaction or occurrence, it’s probably covered by RJ.
a. Example: In-other-words, if  bought a toaster that exploded and killed her pet iguana, she’s probably got half a dozen theories of recovery under tort and contract law (strict liability, warranty, breach, etc.). But all those actions arise from the same occurrence – the toaster explosion. Most Courts would rule this a single cause-of-action for RJ purposes.
4. Exam Tip: Be sure to let the professor know you defined the cause-of-action so that he knows you understand its central importance to the concept of res judicata.
5. Remember the Policy Rationale: Courts will interpret claims broadly in order to encourage joinder and discourage multiple litigation (judicial efficiency). But Courts will interpret claims narrowly if they are concerned about the harshness of preclusion and the burden on the P.

Front 30

Collateral Estoppel
(Issue Preclusion)

Back 30

NIL
Issue Necessary to the first action?
Identical Issues?
Actually Litigated?

Front 31

Collateral Estoppel Basics

Back 31

1. Definition: CE means you cannot re-litigate an issue that you previously litigated or could have litigated. If RJ is a meat cleaver, lopping off the entire claim, CE is a scalpel, severing only the issues previously adjudicated. There are 3 requirements for CE:
a. Same Issue
b. Actually Litigated
c. Necessarily Decided (This is important. The issue may previously have been decided but was not necessary to resolution of that case.
2. Example: Driver A hits Driver B, sues B for negligence, and wins. Assume that there was no compulsory counterclaim rule, so B never counterclaimed against A. Now Driver B wants to sue Driver A for his injuries.
a. B is NOT barred by res judicata because even though his claim arises from the same transaction & occurrence, claims are specific to the , so that single accident gave rise to valid claims for both A and B.
b. But B will be estopped from asserting a claim of negligence against A. This is because A actually litigated and necessarily determined that B was the negligent driver in the accident. For purposes of the exam, don’t worry about comparative negligence claims.
c. But, what if the verdict in the first trial came in as comparative negligence, both drivers negligent, no damages are awarded because they were equally negligent? So the jury sends B home a free man. Now he decides to sue A. The fact that the jury found B negligent in the first case was NOT necessary to their finding that A was negligent, so B is NOT estopped from suing A.
i. Appeal: One way to sanity check your answer is to look at whether the  in action #2 could have appealed the verdict in case #1. Here, B won the first case (he did not have to pay A), so there was nothing for him to appeal. So his issue was not necessarily decided.
3. Context is the Key: With RJ the claims were the same so context did not matter. But with CE, the context of the litigation could re-define the claim.