Civil Procedure Fashcards (First Packet) - Wetlaufer Spring 2007

Front 1

For a practicing lawyer, knowledge of the rule is ultimately less important than:

Back 1

(1) the trained capacity for clear and critical reading and listening; (2) the trained capacity for clear and controlled speaking and writing; and (3) the trained capacity to recognize, assess, make and respond to arguments.

Front 2

The lawyer who assumes that there is one right and certain answer to legal questions is:

Back 2

naive, misguided, and all to often a loser - though he may be perfectly fine person.

Front 3

The lawyer who thinks the fact that there is not one right and certain answer to questions of law means that "anything goes" is:

Back 3

naive, misguided, and all to often a loser - though she may be perfectly fine person.

Front 4

In order to understand and use the law of civil procedure, a lawyer must distinguish between:

Back 4

(1) those areas of law in which cases merely apply and exemplify law that is clearly stated elsewhere (e.g. in statutes or rules); and (2) those other areas of law in which decided cases are, in some significant degree, making the law.

Front 5

Areas of law in which cases merely apply and exemplify law that is clearly stated elsewhere (e.g. in statutes or rules) include:

Back 5

- Joinder
- Discovery
- Pleading (with exceptions)
- Mechanisms for Disposition (with exceptions).

(know two for the midterm)

Front 6

Three areas of the law in which decided cases are, in significant degree, making the law are:

Back 6

(1) personal jurisdiction - Pennoyer, International Shoe, an their progeny; (2) choice of law applie when state action is tried in federal court- Erie and its progeny; and (30 right to jury trial.

(know one for the midterm)

Front 7

A pleading is:

Back 7

a compliant or an answer to a complaint. F.R.Civ.P. 7(a)

(not a motion)

Front 8

A motion is:

Back 8

An application for a court order-- and it is not a 'pleading." F.R. Civ. P. 7(b).

Front 9

An affidavit is:

Back 9

A written statement that some person has formally sworn to be true.

Front 10

A person who signs an affidavit is:

Back 10

an "affiant."

Front 11

A bench trial is:

Back 11

A non-jury tiral in which the judge is the finder of fact.

Front 12

To properly initiate a lawsuit, there must be what five elements:

Back 12

(1) personal jurisdiction;
(2) subject matter jurisdiction;
(3) venue
(4) service
(5) notice

Front 13

What is the "service" to which we refer when, for instance, we speak of "service of process?"

Back 13

"Service" refers to the formal delivery of a writ, summons, subpoena, or other legal process that has been issued by a court.

Front 14

What is the "Process" to which we refer when, for instance, we speak of "service of process?"

Back 14

"Process" is a summons or writ issued by a court and usually ordering a person to appear or respond in court.

Front 15

The difference between dismissal with prejudice and dismissal without prejudice is:

Back 15

When a case is ddismissed with prejudice, the plaintiff is barred (res judicata) from refiling.

Front 16

What is execution (as in "execution of judgment")?

Back 16

Execution is the judicial enforcement of a money judgment, usually through a sheriff's seizure and sale of the judgment debtor's property.

Front 17

What is a writ of execution?

Back 17

A writ of execution is an order, issued by a court in which a final judgment has been rendered, directing a sheriff to enforce a money judgment.

Front 18

Assignment is:

Back 18

The act by which one person transfers to another all or part of some property, interest or right.

Front 19

Personal Jurisdiction is:

Back 19

the power of a particular place over the person or property of a particular defendant.

(To be clearly distinguished from subject matter jurisdiction.)

Front 20

In federal district courts, personal jurisdiction localizes adjudication at the level of what geographical unit?

Back 20

The state.

Front 21

What law determines whether a defendant is subject to a personal jurisdiction in a particular federal district court?

Back 21

(1) the forum state's law of personal jurisdiction (incorporated through F.R. Civ. P. 4(K)(1)(A)) and (2) the Fourteenth Amendment of the U.S. Constitution (as a limit upon the law of the forum state.)

Front 22

Historically, personam jurisdiction was:

Back 22

that form of personal jurisdiction which was based on the presence of the defendant's person within the forum state.

Front 23

Historically, in rem jurisdiction was:

Back 23

that form of personal jurisdiction which was based on the court's power over some property which is within the state, attached, but not the subject of the dispute.

Front 24

A special appearance is:

Back 24

an appearance by which a defendant may raise threshold defenses such as lack of personal jurisdiction or lack of notice even though his presence in the court might normally have cured or waived the asserted defect. Not required under the federal rules. (i.e. I have no notice claim....but if you show up otherwise you have de'facto' notice.)

Front 25

What is constructive notice?

Back 25

Constructive notice is notice imputed to a person by presumption of law, often contrary to fact- as in the case of "notice" by publication of a legal notice in the tiny print in the back of some local newspaper.

Front 26

Venue is:

Back 26

A set of rules localizing the place of litigation that, in the federal system, localizes adjudication at the level of Judicial District. 28 U.S.C. 1391

Front 27

If there is personal jurisdiction, can you be assured that there is some judicial district in which there is no venue.

Back 27

Yes. 28 U.S.C. 1391

Front 28

If there is personal jurisdiction, can you be assured that there is some judicial district in which there is venue?

Back 28

Yes. 28 U.S.C. 1391

Front 29

What is the distinction between general and limited jurisdiction? Does the distinction reside in the law of personal jurisdiction or of subject matter jurisdiction?

Back 29

In the law of subject matter jurisdiction, this is the distinction between (1) those courts that have subject matter jurisdiction over all claims (except those excluded by statute) and (2) those other courts that have subject matter jurisdiction only over those claims for which they are given explicit statutory authority (including the federal district courts). Casebook at 5.

Front 30

Subject matter jurisdiction?

Back 30

the power of a particular court to adjudicate controversies of a particular type (e.g., federal questions, diversity, marriages, small claims). To be clearly distinguished from personal jurisdiction.

Front 31

Cases over which federal jurisdiction courts have subject matter jurisdiction may also be brought:

Back 31

in state courts of general subject matter jurisdiction.

Front 32

What does it mean to say that state and federal courts may have concurrent jurisdiction?

Back 32

State and federal courts have concurrent jurisdiction when, as is often the case, both courts could exercise subject matter jurisdiction over the same claims.

Front 33

For purposes of this course, federal district courts have original subject matter jurisdiction over:

Back 33

(1) federal questions;
(2) diversity actions;
(3) claims for which there is supplemental jurisdiction;
(need to know first two for mid-term.)

Front 34

According to the controlling statute, diversity jurisdiction depends upon the states in which the parties are:

Back 34

citizens (28 U.S.C. 1332 (a)

Front 35

For purposes of diversity jurisdiction, the states in which the parties are citizens depends upon the states in which they are:

Back 35

domiciled.

Front 36

For purposes of diversity jurisdiction, what is the meaning of domicile?

Back 36

Residence plus the intent to remain indefinitely.

Front 37

For the purposes of federal subject matter jurisdiction, what is the time at which diversity must exist (e.g. the time of the incident, the time of the filling or the time SMJ is challenged.)

Back 37

The time of the filing.

Front 38

Rules governing discovery are:

Back 38

Federal Rules of Civil Procedure 26-37 and 45.

Front 39

What is the most important method of pre-trial discovery that is not specified in Civil Rules 26-37 and 45?

Back 39

Plain old-fashioned investigation in which questions are asked without reliance on the coercive power of the district court.

Front 40

Are there any circumstances in which a lawyer may be barred from communicating with someone who may have information relevant in the case?

Back 40

A lawyer is forbidden to communicate with any person who the lawyer knows to be represented by another lawyer in the matter at hand, unless she has the consent of that person's lawyer.

Front 41

In matters related to discovery, how great is the power of the district court judge? Shy?

Back 41

ENORMOUS. Because they are not final orders, discovery ruling are almost never subject to appellate review. This is especially true prior to trial and after trial, there's rarely any point in appealing such rulings. Review is on a very lenient form of "abuse of discretion."

Front 42

Material is generally discoverable if:

Back 42

it is "relevant to the claim or defense of any party" and "appears reasonably calculated to lead to the discovery of admissible evidence." F.R. Civ. P. 26 (b)(1).

Front 43

Under what circumstances is a party permitted to secure the discovery of privileged materials?

Back 43

Never. F.R. Civ. P. 26(b)(1)

Front 44

Under what circumstances is a party permitted to secure the discovery of trial preperation materials?

Back 44

Only on a special showing of need. (Midterm Answer)

Only on a showing of substantial need and undue hardship in obtaining equivalent materials. F.R.Civ.P. 26(b)(3).

Front 45

What are "required disclosures," when are they required, and what is it that is required?

Back 45

Under F.R.Civ.P. 26(a)(1), required disclosures are the "discovery" disclosures that a party must provide -- without request by another party -- at the onset of litigation.

Front 46

Is it grounds for objection that the information sought through discovery is confidential (e.g. tax records)?

Back 46

No.

Front 47

Is it grounds for objection that the information sought through discovery will not be admissible at trial (e.g. information regarding changes in design of a product subsequent to injury?)

Back 47

No. According to F.R.Civ.P.(b)(1) "relevant information need not be admissible at trial if the discovery appears to be reasonably calculated to lead to the discovery of admissible evidence." F.R. Civ. P. 26(b)(1). (What is admissible at trial is much smaller that what is relevant for pre-trial discovery.)

Front 48

The mechanism(s) by which a party may secure written answers to written requests is(are):

Back 48

written interrogatories. (F.R.Civ.P. 33; only from parties not form non-parties.)

Front 49

The mechanism(s) by which a party may secure the sworn, pretrial testimony of another person is(are):

Back 49

the deposition.
(F.R.Civ.P. 30 from parties) and the subpeonea (F.R.Civ.P.45 from non parties.)

Front 50

The mechanism(s) by which a party may secure discovery against non parties is (are):

Back 50

A Subpeonea

Front 51

The mechanism(s) by which a party may secure the discovery of documents is (are)

Back 51

the document demand (F.R.Civ.P.34, from parties) and the subpeona duces tecum (F.R.Civ.P.45, from non parties).

Front 52

Courts may become involved in discovery disputes through:

Back 52

(1) motions for protective orders (to quash or modify a subpoena); or
(2) motions to compel discovery
F.R.Civ.P.26(c), 37, 45(c).

Front 53

A subpoena is:

Back 53

An order issued by the clerk of the court and commanding a named person to appear at a specified time and place for the providing of sworn testimony and to produce documents or other tangible things. F.R. Civ. P. 45

Front 54

A subpoena duces tecum is:

Back 54

A subpoena commanding a named person to appear at the specified time and place for the purpose of providing sworn testimony and to produce documents or other tangible things. F.R.Civ.P.45

Front 55

What is a motion to quash, by whom may it be brought, and what purpose might it serve?

Back 55

Under F.R.Civ.P. 45(c), a person upon whom a subpoena has been served may bring a motion to quash or modify the subpoena on grounds including privilege and undue burden. If a motion to quash is granted, the moving party is relieved of all obligations under the subpoena.

Front 56

Assume you are deposing the other party, you ask who was present at a particular meeting, and you are told that "A, B, and C were present." Are you now ready to move on to your next subject?

Back 56

No. You should not assume that A,B, and C were the only ones present. Pursue at least a little further asking for instance, "was anyone else present for all or part of that meeting."

Front 57

Prior to discovery, the defendant has admitted to his lawyer that the sexual relations he had with the plaintiff were non-consensual (privileged material). Then in deposing the defendant the plaintiff's lawyer asks "Didn't you tell your lawyer that your sexual relations with the plaintiff had been non-consensual?" What should the counsel for the defendant now do? What should counsel for the plaintiff then next do?

Back 57

Counsel for the defendant should object on the grounds of attorney-client privilege. Counsel for the plaintiff should then ask "where your sexual relations with the plaintiff non-consensual?" Be sure you understand that the first question calls for privileged materials and the second does not.

Front 58

Prior to the discovery the defendant admits to his lawyer that the sexual relations he had with the plaintiff were non-consensual. Then in deposing the defendant, counsel for the plaintiff asks, "where your sexual relations with the plaintiff consensual or non-consensual?" Defendant responds, consensual. What if anything should be done now by counsel for the defendant?

Back 58

Counsel for the D is obligated to cure the misrepresentation. That will normally involve telling the client in private that he can't do that and the record must be corrected and that if he will not do so then the attorney will be obligated to withdraw from the case. The next time they go on record, defense counsel might explain there was some sort of misunderstanding and that the defendant would like to clarify his testimony with respect to the question of consent.

Front 59

You should assume that, prior to your deposition of an adverse party, that party's lawyer will have coached him to:

Back 59

Make it as hard as humanly possible to get the information you seek. - (Midterm answer)

(1) take time and think before answering;
(2) answer only the question that has been asked and to do so briefly;
(3) testify only as to those things the witness "actually" knows, overcome resistance to saying "i don't know" or "i don't remember";
(4) pay close attention to his lawyer and any objections the lawyer might make;
(5) when asked whether the lawyer coached him in connection with the deposition, just say "he told me to tell the truth".

Front 60

If you are deposing the other party and that party is about to give away the store, you should assume that her lawyer might:

Back 60

Do everything she can to keep her client from giving away the store (midterm answer)

Front 61

If you have served the other side with a document request (DR ) and they have turned up a smoking gun(SG) that may be called for by your request, what should you assume they will do?

Back 61

Everything possible to keep the SG out of your hands.

Front 62

Assume the other side has served you with a document request and you have turned up a smoking gun that appears to be called for by their request. You have exhausted all fair and legal means to avoid its production or settle the case. What's next.

Back 62

You consult with your client and then produce the smoking gun.

Front 63

How many core questions are answered by the law of joinder? What are they?

Back 63

10. They are on page 8 in the handbook.

Front 64

The rules of joinder sometimes say "may" and sometimes say "must." Do these words have single and stable meanings?

Back 64

No. There are a variety of persons to whom these mays and musts are variously directed. Further must always means "must or something" and the relevant "something" will vary.

Front 65

For the purposes of these flashcards, what is the term that is taken to include STO, STOSTO + CQ, CNOF, SAOF?

Back 65

Relatedness

Front 66

What is STO?

Back 66

Same Transaction or Occurrence

Front 67

What is STO STO + CQ?

Back 67

Same transaction or occurrence or series of transactions or occurrences plus a common question of fact.

Front 68

What is CNOF?

Back 68

Common nucleus of operative facts.

Front 69

What is SAOF?

Back 69

Same aggregate of operative fact.

Front 70

Rule 20(a)(first sentence) says "All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action." In the first instance, what joinder question does this answer? Under what circumstances?

Back 70

What parties may plaintiff join -- as plaintiffs.

Front 71

Rule 20(a)(second sentence) says "all persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions and if any question of law or fact common to all defendants will arise in the action. In the first instance, what joinder question does this answer? Under what circumsatnce?

Back 71

What parties may plaintiff join -- as defendants.

Front 72

Rule 18(a) syas "a party asserting a claim to relief as an original claim, counterclaim, cross claim, or third party claim, may join either as independent or as alternative claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party." (a) In the first instance what joinder question does this answer? (b) Under what circumstances? (c) who else does it empower?

Back 72

(a) what claims may the plaintiff join (against a d)? (b) Plaintiff may join all such claims. (c) It empowers anyone else who (through the authority of some other rule) asserts a claim.

Front 73

Rule 13(a) says "A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader 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." (a) In the first instance, what joinder question does this answer? (b)Under what circumstances? (c) What is the meaning of shall?

Back 73

(a) What claims must the defendant join (against a P)? We will also conclude that as to these claims, it provides a partial answer to the question "What claims may a defendant join?" (b) When teh claim is related (STO plus "does not require") to the plaintiff's claim. (c) Assert it now or be barred from asserting it later.

Front 74

Rule 13(b) says "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." (a) In the first instance, what joinder question does this answer? (b) Under what circumstances?

Back 74

(a) What claims may defendant join (against a plaintiff)? (b) Unrelated.

Front 75

Rule 13(g)("cross-claim against co-party") says "A pleading may state as a cross-claim any claim or 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." (a) in the first instance, what joinder questions does this answer? (b) under what circumstances?

Back 75

(a) What claims may the defendant join -- against a co-defendant? (b) Unrelated.

Front 76

Rule 14 ("third party practice") says "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." (a) What joinder question does this answer? (b) Under what circumstances?

Back 76

(a) What parties may the defendant join? (b) Defendant asserts or may assert secondary or derivative liability.

Front 77

Res judicata sometimes functions as a joinder rule because:

Back 77

It may operate to bar claims that should have been but were not, joined in a previous usuit.

Front 78

What parties may plaintiff join as plaintiffs?

Back 78

Any plaintiffs who assert related claims (i.e. any who are Sto Sto and CQ) Rule 20(a) first sentence.

Front 79

What parties may plaintiff join as defendants?

Back 79

Any against whom related claims are asserted. (i.e. any against whom are asserted claims that are STO STO and CQ). Rule 20 (a) Second sentence.

Front 80

Rule 20(a) (first sentence) provides that all may join as plaintiffs who are STOSTO + CQ --"if they assert any right to relief jointly severally, or inthe alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences" if there is"any questions of law or fact common to all..." Does this empower persons who the original plaintiff has not joined in the lawsuit to join that suit as plaintiffs?

Back 80

No.

Front 81

What is a counterclaim?

Back 81

A claim that the defendant asserts against a plaintiff. Rule 13(a) and (b).

Front 82

To whom is a compulsory counter claim compulsory? Explain.

Back 82

A compulsory counterclaim is compulsory upon the the defendant. It is denominated a compulsory counter claim in rule 13(a) but the compulsion arises out of the law of res judicata.

Front 83

To whom is a permissive counterclaim permissive? Explain?

Back 83

Rule 13(b) permissive counterclaim is permissive upon the defendant. (Once properly sought, it is mandatory upon the court in the sense that the court may not, in its discretion, decide not to grant it.)

Front 84

Under the law of joinder, are all defendants permitted to join all---or only some--of the claims they have against the plaintiffs?

Back 84

ALL-- defendants are permitted to join all of the claims they have against the plaintiffs.

Rule 13(a) requires the joinder of all counter claims that are STO. 13(b) permits the joinder of all counter claims not sto. Basically that is everything sto or not sto.

Front 85

What is a cross-claim?

Back 85

A claim that one defendant asserts against another defendant. (Rule 13(g)).

Front 86

What is impleader?

Back 86

A joinder mechanism that permits a defendant (as third-party plaintiff) to join a non-party (as a third party defendant) who is or may be secondarily or derivatively liable to the defendant. Rule 14.

Front 87

Under what circumstances can a named defendant secure the joinder of a non-party on the ground that the non-party is liable to the plaintiff and the defendant is not?

Back 87

Never.

Front 88

Under what circumstances can a named defendant secure the joinder of a non-party on the ground that the non-party is, together with the defendant, jointly liable to the plaintiff?

Back 88

Without more, never. If the non-party may be jointly liable may also owe to the defendant a right of contribution, it may be impleaded under Rule 14.

Front 89

What is a third-party plaintiff?

Back 89

A defendant who joins (impleads) a non-party under Rule 14.

Front 90

What is a third-party defendant?

Back 90

A non-party who is joined (impleaded) under Rule 14.

Front 91

My two favorite examples of persons who may be secondarily or derivatively liable (under 14 re impleader) are:

Back 91

(1) D's liability insurance company, who if D is liable to P, is or may be liable to D; and (2) D's joint tortfeasor if D has or may have a right of contribution and, if D is liable to P, is or may be liable to D.

Front 92

What is joint liability?

Back 92

liability by which each of several persons may be responsible for an entire obligation, as when each of several joint tortfeasors may be liable for the entire obligation arising from the tort.

Front 93

What does it mean to say that a joint tortfeasor has a right of contribution?

Back 93

It means that if a single joint tortfeasor is sued and found liable for the entire amount of the injury caused to the plaintiff, he may sue the other joint tortfeasors pay to him a share of the compensation he has provided to the plaintiff.

Front 94

Indemnification is:

Back 94

The act by which a person who is subject to some loss (e.g. through the loss of a lawsuit) is, through payment, wholly or partially reimbursed for that loss (e.g. though payment under liability insurance). It is relevant to the law of joinder through Rule 14 because it involves a kind of secondary or derivative liability.

Front 95

Plaintiff has a non-federal diversity claim against a single defendant; the defendant has impleaded a third-party defendat, and plaintiff seeks to assert a related claim against the third party defendant. Under the law of joinder (and setting aside, e.g. question of subject matter jurisdiction) may the plaintiff join her claim?

Back 95

Yes. According to the seventh sentence of Rule 14(a) which provides that "The plaintiff may assert any claim against third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff".

Front 96

Rule 19 deals with necessary and indispensable parties. For purposes of this course, who is empowered by that rule? To do what?

Back 96

Rule 19 may empower the defendant, by motion (1) to secure a court order compelling the plaintiff to join a necessary party or (2) to secure dismissal because of the absence of an indispensable party.

Front 97

What is a necessary party?

Back 97

A party who is so closely connected to an action that, if he is available, the defendant may bring a motion under Rule 19 and secure a court order compelling the plaintiff to join the party.

Front 98

What is an indispensable party?

Back 98

A party who is so closely connected to an action that, if he were available his joinder could be compelled under Rule 19(a) -- but who cannot be joined because of jurisdiction or venue and, in whose absence, the court may conclude that the case must be dismissed under Rule 19(b).

Front 99

My favorite example of a person who may be subject to multiple or inconsistent obligation is:

Back 99

The insurance company that has issued a life insurance policy of which the named beneficiary is "my husband" when claims are or might be asserted by the husband-at-the-time and by the current husband.

Front 100

My favorite example of a person in whose absence complete relief cannot be accorded among the existing parties (e.g., under Rule 19(a)(1)) is:

Back 100

The nonparty (NP) when P1 sues D1 for specific performance on a contract on the sale of land, D1 and NP own that land jointly, and the transfer of title will require the signatures of both D1 and NP.

Front 101

What is a class action?

Back 101

A joinder device by which one or more plaintiffs are allowed to litigate a group of claims on behalf of a group of absent but similarly-situated plaintiffs.

Front 102

What are the prerequisites of a class acton?

Back 102

According to rule 23(a) there must be NCTAR--(1) Numerosity, (2) Commonality; (3) Typicality; (4) Adequacy of Representation.

Front 103

What is class certification?

Back 103

The court order, sought through a motion by the plaintiff who has filed a class action, by which the district court approves of th suit as a class action and specifies the represented class. It is only after class certification that the absent members of the class may be bound res judicata by the outcome of the suit.

Front 104

What are numersoity, commonality, typicality and adequacy of representation (NCTAR)?

Back 104

The prerequisites to a class action (Rule 23(c)).

Front 105

If there is NCTAR, what are the tree circumstances in which class actions are available?

Back 105

(a) separate actions risk practical impairment of interests of absent class members (e.g. insufficient funds) or class opponent (e.g. incompatible standards of conduct;) (b) party opposing class alleged to have based conduct on characteristics of the class and injunctive relief is appropriate (e.g. discrimination); and
(c) common questions predominate and class action is desirable (e.g. mass tort).

Front 106

Once a class action has been certified, it may only be settled or dismissed....

Back 106

with the approval of the court.

Front 107

What is intervention?

Back 107

A joinder mechanism that allows a non-party on his own initiative to join an on-going action. Rule 24.

Front 108

To who is intervention of right mandatory? Explain.

Back 108

Rule 24(a) intervention of right is mandatory upon the court in the sense that once it has been properly sought, the court may not in teh exercise of its discretion decide not to grant it.

Front 109

To whom is permissive intervention permissive and not mandatory? Explain.

Back 109

Rule 24(b) permissive intervention is permissive upon the court in the sense that, once it has been properly sought, the court may in its discretion decide not to grant it.

Front 110

What is a stakeholder?

Back 110

A person who holds some property (e.g. the proceeds of an insurance policy) that may be subject to multiple and inconsistent claims--and who may therefore want to invoke the rules of impleader.

Front 111

What is interpleader?

Back 111

A joinder mechanism that allows a stakeholder to initiate a suit to which it joins those who assert rights to the property. See Rule 22 and 28 U.S.C. 1335.

Front 112

The joinder rule(s) under which joinder is permitted without regar to relatedness is (are):

Back 112

After P has asserted her first claim against D, (1) P's joinder of other claims against D under Rule 18 and (2) D's joinder of counterclaims under 13 (a) and (b). Both involve the joinder of claims; neither involves the joinder of parties.

Front 113

The joinder rules under which joinder is permitted under conditions of relatedness (e.g. STO, CNOF) are:

Back 113

After P has asserted her first claim against D.
(1) P's joinder of other plaintiffs under the first sentence of Rule 20(a).
(2)P's joinder of other defendants under the second sentence of Rule 20(a).
(3) D1's joinder of cross claims against D2 under Rule 13(g).

Front 114

Joinder rules under which joinder is permitted under conditions of secondary or derivative liability is (are):

Back 114

The impleader of third-party defendants under Rule 14.

Front 115

The joinder rule(s) under which joinder is permitted when there is a risk of multiple or inconsistent obligations is (are):

Back 115

(1) the joinder of necessary parties under Rule 19(a); (2) interpleader.

Front 116

Does the district court judge have authority to order the separate trial of a particular claims? Of particular issues? If so on what grounds?

Back 116

Yes to Both. Under F.R.Civ.P. 42(b) a district court judge may order the separate trial of any claim or issue on ground of convenience, inefficiency or the avoidance of prejudice.

Front 117

The joinder rule(s)under which joinder is obligatory upon a party is (are):

Back 117

(1) (a) Joinder of claims: res judicata and (b) compulsory counterclaims under Rule 13(a) -- you will find these to standards are identical.
(2) Joinder of parties: Rule 19(a) once the court has issued an order compelling the plaintiff to join a "necessary" party.

Front 118

Which of the following joinder rules are compulsory on the PLAINTIFF
(1) Comp. counter claims
(2) Perm. counter claims
(3) cross claims
(4) third party claims
(5) necessary parties
(6) indispensable parties
(7) joinder of plaintiff under Rule 20
(8) joinder of defendants under Rule 20
(9) class actions
(10) intervention of right
(11) permissive intervention
(12) interpleader
(13) declaratory judgment
(14) res judicata (as a joinder rule)

Back 118

(1) Res judicata;
(2) Joinder of necessary parties under Rule 19

Front 119

Which of the following joinder rules are compulsory on the DEFENDANT?
(1) Comp. counter claims
(2) Perm. counter claims
(3) cross claims
(4) third party claims
(5) necessary parties
(6) indispensable parties
(7) joinder of plaintiff under Rule 20
(8) joinder of defendants under Rule 20
(9) class actions
(10) intervention of right
(11) permissive intervention
(12) interpleader
(13) declaratory judgment
(14) res judicata (as a joinder rule)

Back 119

(1) Compulsory Counter Claims under Rule 13(a)

Front 120

Which of the following joinder rules are compulsory on the NON PARTY?
(1) Comp. counter claims
(2) Perm. counter claims
(3) cross claims
(4) third party claims
(5) necessary parties
(6) indispensable parties
(7) joinder of plaintiff under Rule 20
(8) joinder of defendants under Rule 20
(9) class actions
(10) intervention of right
(11) permissive intervention
(12) interpleader
(13) declaratory judgment
(14) res judicata (as a joinder rule)

Back 120

(1) None of these.

Front 121

Which of the following joinder rules are compulsory on the COURT?
(1) Comp. counter claims
(2) Perm. counter claims
(3) cross claims
(4) third party claims
(5) necessary parties
(6) indispensable parties
(7) joinder of plaintiff under Rule 20
(8) joinder of defendants under Rule 20
(9) class actions
(10) intervention of right
(11) permissive intervention
(12) interpleader
(13) declaratory judgment
(14) res judicata (as a joinder rule)

Back 121

(1) With only two exceptions, all of these joinder opportunities are compulsory on the court if they are properly invoked. The exceptions are (1) indispensable parties and (2) permissive intervention.