Civil Procedure: Size Of Actions

Front 1

How does joinder of claims operate

Back 1

Once a party has made a claim against a party, she may then make <b>any other claimes</b> she wishes against that party.

Front 2

How does joinder of claims interact with jurisdiction requirements?

Back 2

While personal req's for jurisdiction will be satisfied because there are no new parties, subject matter jurisdiction must be independantly satisfied for each subsequent claim.

Front 3

How do multiple amounts in controversy function in joinder of claims?

Back 3

They aggregate to meet the $75,000 minimum for federal jurisdiction.

Front 4

May federal and state causes of action be brought in the same suit (through joinder)?

Back 4

not unless there is diversity or the claims are closely related.

Front 5

What mechanisms does a court have at its disposal to correct misjoinder?

Back 5

(1) Separate Trials
(2) Severace
(3) Dropping a party

Front 6

Describe Separate trials.

Back 6

A judge may order separate trials where it is deemed that joinder would cause undue inconvenience or prejudice to either party.

Front 7

Describe Severance

Back 7

Allows a judge or moving party to try any issue of law or fact separately from the present action

Front 8

Describe Dropping a party

Back 8

Rule 21 Allows a court to drop a party on its own initiative or as a result of a motion

Front 9

When are counterclaims compulsory?

Back 9

If a claim arises out ot the traactoin or occurrence that is the subject matter of the opposing party's claim, its assertion is compulsory.

Front 10

What are the consequences of a failure to state a compulsory counterclaim?

Back 10

It is lost to future litigation <b>unless</b>
<br><ul><li>Additional parties would be required whom are not under jurisdiction</li><li>The subject matter of the counterclaim is already proceeding</li></ul>

Front 11

Describe permissive counterclaims.

Back 11

A party may assert as a counterclaim any claim not arising out of the transaction or occurrence that is the subject matter of the original actions. <b>It must ask for actual relief</b> Burden shifts are not applicable.

Front 12

When are crossclaims compulsory?

Back 12

Never.

Front 13

What are the requirements for the assertion of a crossclaim?

Back 13

A party may assert any claims against a co-party if <br><ul><li>They arise out of the same transaction or occurrence</li><li>The cross claim asks for <b>actual relief</b></li></ul>

Front 14

When is permissive joinder of parties allowed.

Back 14

(1) Arise out of a single transaction or occurrence
(2) There exists a question of law or fact common to all plaintiffs

Front 15

For permissive joinder, what must be shown of the common question of law or fact?

Back 15

That it is of substantial importance
(1) Logical Relation
(2) Common Evidence

Front 16

What elements must be present to trigger compulsory joinder?

Back 16

Necessary, Feasible, Indispensable (equity and good conscience)

Front 17

Define Necessity in terms of compulsory joinder.

Back 17

(1) Incomplete Relief: In the person's absence, complete relief cannot be accorded among the present parties
(2) Impaired interest: the judgement may impose multiple, or the possibility of inconsistent obligations

Front 18

Define Feasibility in terms of compulsory joinder.

Back 18

(1) If a party can be served
(2) If a party would not defeat diversity.

Front 19

Define indispensibility in terms of compulsory joinder.

Back 19

Whether the action may proceed in <b> equity and good conscience </b> in the absense of the party in question.<br>
<ul><li>Prejudice towards the absentee</li><li>Possibility of framing judgment to avoid prejudice</li><li>Adequacy of remedy that may be gra

Front 20

Define prejudice in terms of FRCP

Back 20

due process.

Front 21

Who is a real party in interest?

Back 21

The party who is entitled to enforce the substantive rights regardless of whether they would be the beneficiary of the judgment.

Front 22

What does impleader imply concerning guilt of the impleading party?

Back 22

A impleading defendant operated on a theory of shared liability, therefore, he is ascribing some liability to himself.

Front 23

When may a party implead another?

Back 23

Within 10 days of the service of the complaint.

Front 24

If a party fails to meet the 10 day impleader timeframe, what factors will a court weigh in determining whether to allow impleading?

Back 24

(1) Prejudice to original P vs.
(2) Benefit to original D

Front 25

In impleader, what must and may a new 3rd party defendant do?

Back 25

(must) assert normal answers, claims, counterclaims against original D.
(may) assert defenses etc. against original P

Front 26

What are the components of intervention of right?

Back 26

(1) timely (2) impaired interests (3) statutory right.

Front 27

Describe timely intervention of right.

Back 27

(1) A party must intervene as soon as it learns that its interests may be impaired by a proceeding action.
(2) application must be accompanied by a pleading containing claims and defenses
(3) application must be served on all parties, and must explain why

Front 28

Describe interest in the subject matter with regards to intervention of right.

Back 28

Impaired interests: If a party's interest is greater that or equal to that of the current D then of right, otherwise, permissive.
(2) Inadequate representation

Front 29

What are the two types of consolidation?

Back 29

(1) Interdistrict (among many)
(2) Intradistrict (within one)

Front 30

For what reasons may intra-district consolidation be appropriate?

Back 30

(1) Convenience
(2) To avoid prejudice
(3) Expedition and Economy

Front 31

Describe inter-district consolidation.

Back 31

Cases from multiple disctricts may be consolidated by the Judicial Panel on Multi-District Litigation for the purposes of joint <b>discovery and pleadings</b>

Front 32

what are the factors that a court considers when determining if a settlement is fair, appropriate and adequate

Back 32

1) merits of P's case weighed against hte settlement terms, 2) D's financial situation 3) cost/complexity of continuing the litigation 4) strength of objection to the proposed settlement

Front 33

who must satisfy which jurisdictional elements for a class action to be certified

Back 33

representatives

Front 34

What are the cumulative elements for a class action to be certified?

Back 34

Numerosity
Commonality
Typicality

Front 35

How is Numerosity Demonstrated?

Back 35

(1) The class is so large that joinder of all members would be impracticable.
(2) Factors
<ul><li>Number of Persons
</li>Nature of the actions</li>
<li>Size of Individual Claims</li><li>Inconvenience of Seperate Trials</li>
<li>Geographic Dispersion</li>

Front 36

How is Commonality demonstrated

Back 36

There are questions of law or fact common to the class (focuses on relationship of class members to one another)

Front 37

How is typicality demonstrated?

Back 37

The claims or defenses of the pre. parties are typical of the claims or defenses of the class (focuses on the relationship between the class members and the reps.)

Front 38

What must a judge consider in certifying a class action?

Back 38

Whether absent plaintiffs are adequately represented.

Front 39

for commonality do the common questions of law or fact need to be identical?

Back 39

NO, just substantially related to the resolution of the litigation

Front 40

What are the three general types of class actions

Back 40

Prejudice, Injunctive Relief, Damages

Front 41

What are the requirements for a prejudice b(1) class action?

Back 41

Individual actions by or against would create:
(a) Inconsistent decisions forcing an opponent of the class to observe incompatible standards or
(b) Impairment of the interests of members of the class who are not actually a party to the individual actions

Front 42

May b(1) class members opt out?

Back 42

Class members may not opt out. (however, if an absent member lacked minimum contacts with the state where the defedal court sits, the absentee might be able to claim that binding her violated her due process rights.

Front 43

What are the requirements for an injunctive relief b(2) class action?

Back 43

The party opposing the class has acted or refused to act on grounds generally applicable to the class.

Front 44

May a b(2) class member opt out?

Back 44

Class members may not opt out. (however, if an absent member lacked minimum contacts with the state where the defedal court sits, the absentee might be able to claim that binding her violated her due process rights.

Front 45

What are the requirements for a damages b(3) class action?

Back 45

The court makes (2) findings
(1) Common questions of law or fact predominate over any questions affecting only individual members
(2) The class action is superior to other available methods for fair and efficient adjudication of the controversy

Front 46

May class members opt out of a b(3) class?

Back 46

Yes

Front 47

What elements must be met for a limited funds class action to proceed?

Back 47

(1) Existence of a limited fund
(2) The whole fund goes to satisfying the claims
(3) Equitable distribution among claimants (usually pro-rata)

Front 48

What factors will a court consider when determining whether to certify a class action?

Back 48

1) interest in individual control 2) extent of current litigation conducted 3) pros & cons of conducting the actions in one forum 4) manageability of the class acton