civil procedure class 12 professor fischer columbus school of law the catholic university of america...
TRANSCRIPT
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CIVIL PROCEDURE CLASS 12
Professor Fischer
Columbus School of Law
The Catholic University of America
October 2, 2001
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WRAP-UP OF LAST CLASS
• We discussed Practice Exercise 11. This exercise demonstrates the type of judgments lawyers have to make in applying Rule 11 to a real live situation.
• We discussed the rules for joinder of claims (FRCP 18). Rule 18 permits joinder of unrelated claims. Don’t forget that rules on amendment (FRCP 15) may also be applicable!
• We discussed the rules for permissive joinder of parties under FRCP 20.
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WHAT WILL WE DO TODAY?
• Learn the rules for joinder of parties (FRCP 19-21)
• Discuss counterclaims (FRCP 13)
• Discuss cross-claims (FRCP 13(g))
• Discuss Practice Exercise 12 (CB 328)
• Discuss impleader under FRCP 14.
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REVIEW: JOINDER OF PARTIES
• Some parties MUST be joined (FRCP 19)
• Other parties may be joined if permissive joinder rules apply (FRCP 20)
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REVIEW: PERMISSIVE JOINDER: WHEN CAN Ps SUE
TOGETHER?• IF:
• 1. Claims arise out of same transaction and occurrence
• AND 2. Common question of law or fact
• subject to discretion of court to deny joinder where JURY CONFUSION or UNDUE DELAY (20(b))
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WHEN CAN P SUE MULTIPLE Ds IN SAME ACTION?
• IF:
• 1. Claims arise out of same transaction and occurrence
• OR 2. Common question of law or fact
• subject to discretion of court to deny joinder where JURY CONFUSION or UNDUE DELAY (20(b))
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REVIEW: RULE 20 IS PERMISSIVE
• Parties are not required to be joined (subject to FRCP 19)
• However, courts sometimes CONSOLIDATE actions (FRCP 42(a))
• Courts also have discretion to deny joinder and order separate trials (FRCP 20(b))
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FRCP 21: MISJOINDER OF PARTIES UNDER RULE 20
• Misjoinder will not result in dismissal
• Parties can be dropped or added
• 1. On motion of parties
• 2. Or at initiative of court
• AT ANY STAGE OF THE ACTION
• COURT HOWEVER CAN ORDER SEPARATE TRIALS
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KEDRA v. CITY OF PHILADELPHIA
• What are the key facts of this case (everyone’s worst nightmare, probably!)
• What is the procedural issue for the court?
• What are the defendants arguments on this issue?
• How does the court rule on this issue?
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FRCP 19: COMPULSORY JOINDER
• Some parties MUST be joined
• Class actions are an exception: 19(d)
• Old distinction:
• A. Necessary parties - should join if feasible BUT failure to join will not result in dismissal of action
• B. Indispensable parties - MUST join these parties. Failure to join results in dismissal of action
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POLICY ISSUES FOR COMPULSORY JOINDER
• All joinder rules attempt to render complete justice efficiently (with as little litigation as possible)
• But compulsory joinder rules may conflict with other policies, such as that joinder may prejudice interests of individuals sought to be joined, or of existing parties. Another issue - will court have jurisdiction over parties sought be joined? Also, what is the effect of judgment on person who might be joined?
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RULE 19(a): WHO MUST BE JOINED IF FEASIBLE?
• What is meant by “feasible”?
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RULE 19(a): WHO MUST BE JOINED IF FEASIBLE?
• Parties with overlapping interest in property: 19(a)(2)(ii)
• Persons with an interest that the action may legally or practically impair : 19(a)(2)(I)
• Persons who, if not parties to action, make it impossible for court to grant complete relief to existing parties: 19(a)(1)
• Parties to a contract where a court is construing it
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HOW DOES A PARTY CHALLENGE A PARTY’S
ABSENCE UNDER RULE 19?
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HOW DOES A PARTY CHALLENGE A PARTY’S
ABSENCE UNDER RULE 19?• A PARTY can move to dismiss (Rule 12(b)
(7) motion
• Is failure to join an indispensable party under 12(b)(7) a waivable defense?
• Court can also order joinder sua sponte - at trial or on appeal.
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CONSEQUENCES OF FAILURE TO JOIN AN ABSENT PARTY WHO
SATISFIES 19(a)• What are the consequences?
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CONSEQUENCES OF FAILURE TO JOIN AN ABSENT PARTY WHO
SATISFIES 19(a)• Party must be joined if feasible
• Court will order joinder - court will not dismiss action for misjoinder
• What if it is not feasible to join that party?
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FRCP 19(b): WHERE JOINDER IS NOT FEASIBLE
• Joinder might not be feasible because it would defeat diversity jurisdiction, or court can’t obtain personal jurisdiction over the absent party or absent party has a valid venue objection
• In this case, what should the court do?
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FACTORS THE COURT TAKES INTO ACCOUNT
UNDER 19(b)
• 1. Potential prejudice
• 2. Shaping relief
• 3. Adequacy of judgment
• 4. Costs to plaintiff
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PLEADING REQUIREMENT: 19(c)
• What does 19(c) require?
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HYPO• A & B have the same formal name, Martin
Smith. Both A and B claim to be the beneficiaries of a life insurance policy issued by insurance carrier L on the life of C, who has died. A sues L. L fears that if the court orders L to pay the policy to A, B may file another suit against L and L might be again ordered to pay the policy amount to B. Can A be required to include B in his lawsuit vs. L? Why or why not?
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ADDING ADDITIONAL CLAIMS BY
COUNTERCLAIM/CROSS-CLAIM
• SEE FRCP 13
• These are additional claims made by parties to the action
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COUNTERCLAIMS
• What is a counterclaim? (13(a), 13©)
• What provisions of the FRCP govern counterclaims?
• What are the two kinds of counterclaims?
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Permissive Counterclaims• What provision of the FRCP governs
permissive counterclaims?
• What is the test for when a counterclaim will be permissive?
• How does a defendant assert a permissive counterclaim?
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Compulsory counterclaims
• What provision of the FRCP governs? • A counterclaim is not compulsory UNLESS
_______________ [please fill in the blank]• Different standards: significant logical
relationship (broadest), overlap in evidence (less broad)
• What, if any, exceptions are there for compulsory counterclaims?
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Exceptions to compulsory counterclaims
• 1. Party had counterclaim that would otherwise be compulsory but never filed responsive pleading (e.g. successful 12(b)(6) motion)
• 2. Counterclaim doesn’t mature until after pleading served• 3. Court lacks jurisdiction over indispensable third parties
that would have to be joined for counterclaim• 4. Counterclaim is subject of a pending lawsuit• 5. Where plaintiff’s complaint rests on court’s in rem or
quasi in rem jurisdiction• 6. In some cases, where D who has been sued for injunction
or equitable claims seeks money damages in counterclaim
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FAILURE TO ASSERT A COMPULSORY
COUNTERCLAIM
• What happens if a COMPULSORY COUNTERCLAIM is not asserted?
• BUT see FRCP 13(f) and 15(a)
• What happens if a PERMISSIVE COUNTERCLAIM is not asserted?
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RESPONDING TO A COUNTERCLAIM
• What response must a P make to a D’s counterclaim? FRCP 7(a)
• Does it matter whether the defendant has correctly identified the counterclaim as such in the answer?
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HYPO
• Erin sues Sheila and Sheila files an answer. Sometime thereafter, events occur that are related to Erin’s claim against Sheila and that entitle Sheila to assert a claim against Erin. Must Sheila assert this claim in the lawsuit? May Sheila do so?
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CROSS-CLAIMS
• What is a cross-claim?
• What provision of the FRCP governs cross-claims?
• Are cross-claims compulsory?
• Can any cross-claim be brought?
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EXAMPLES
• A v. B and C
• B v. C (cross-claim)
• What if after B serves cross-claim on C, C wishes to bring a claim against B? What is that claim called? What are the prerequisites for that claim?
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RESPONDING TO A CROSS CLAIM
• What response must a cross-claim defendant make to a cross-claimant’s cross-claim?
• Does it matter whether a cross-claimant has correctly identified the cross-claim as such in the answer?
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JOINDER OF ADDITIONAL PARTIES BY COUNTERCLAIMANTS/CROSS-
CLAIMANTS• FRCP 13(h)
• Where counterclaimants or cross-claimants seek to join additional parties, leave is probably not required
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SEPARATE TRIALS
• What does FRCP 13(i) provide?
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BANQUE INDOSUIEZ V. TRIFINERY
• State or federal court?
• D executed promissory note payable to P and guaranteed by B
• D do not dispute liability under the note
• P argues that D owes P money and seeks summary judgment
• What does D argue?
• What does P argue in response?
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BANQUE INDOSUEZ CONT’D
• Why does the court hold that it is unfair to enforce a contractual waiver of D’s counterclaim IF that counterclaim is compulsory -- even where under the applicable N.Y. law such contracts of waiver are enforceable? Note that in NY all counterclaims are permissive (NY CPLR section 3019)
• Does the court find D’s counterclaim compulsory or permissive? Why?
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PRACTICE EXERCISE 12: POSSIBLE COUNTERCLAIM
• Shortly after the accident in which Charles was killed, Nancy calls a friend who works at Raytheon (where Randall is employed) and tells her that Randall is an alcoholic. Randall is fired from his job. Does Randall have a defamation claim against Nancy for slander? Would this be a compulsory or permissive counterclaim? Would you need to do some legal research before you could answer this question?
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PRACTICE EXERCISE 12: CROSS-CLAIM
• Assume Nancy’s motion to add Ultimate Auto/City of Lowell has been granted and amended complaint filed. Also assume you represent Randall. Do you have a plausible cross-claim? Prove it. Focus on the language of Mass R. Civ. P. 13(g) which is the same as Fed. R. Civ. P. 13(g). If you do have a plausible cross-claim, how many counts would it have?
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FRCP 14: IMPLEADER
• This governs the procedure whereby the court can allow a defendant to bring a third party (not already a party) into the action
• This is known as IMPLEADER
• What is the purpose of impleader?
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FRCP 14: IMPLEADER
• What is the defendant called? THIRD PARTY PLAINTIFF
• What is the third party called? THIRD PARTY DEFENDANT
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FRCP 14 v. 13
• What is the difference between impleader and a counterclaim?
• What is the difference between impleader and a cross-claim?
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Who can be joined under FRCP 14?
• Persons, not already parties, who, under applicable law, may be obligated to reimburse the D
• e.g. tortfeasor seeks contribution or indemnity from others who may be liable but who P has not sued
• OR someone as acted a a guarantor of a transaction
• MUST SUCH PERSONS BE JOINED?
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Timing of Impleader Claims
• At what stage of the action can a third -party complaint be served?
• When is the leave of court required?
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Relation of third-party claims to original claim
• Can a D make a third-party claim under FRCP 14 that is unrelated to the claims against that D?
• NOTE THAT LIABILITY OF THIRD-PARTY D DEPENDS ON OUTCOME OF MAIN CLAIM!
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YET MORE PARTIES
• Can a third-party D implead other parties and if so, in what circumstances?
• Can this go on and on forever?
• Can a P who is a counterclaim-D implead third parties and if so, in what circumstances? What provision of the FRCP governs this?
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HYPOTHETICAL
• Assume the Massachusetts contribution statute applies. Souter is involved in a car accident with two other drivers, Scalia and Rehnquist. Souter sues Scalia for negligence. Can Scalia implead Rehnquist on the basis that his negligence also caused Souter’s injuries?
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HYPOTHETICAL
• Assume the Massachusetts contribution statute applies. Souter is involved in a car accident with two other drivers, Scalia and Rehnquist. Souter sues Scalia for negligence. Can Scalia implead Rehnquist on the basis that it was Rehnquist who was negligent, not Scalia?
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PLEADING REQUIREMENTS
• A third-party complaint must comply with FRCP 8 and 11
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SERVICE REQUIREMENTS
• What rule governs service of a third-party complaint?
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RESPONDING TO A THIRD-PARTY COMPLAINT
• How does a third-party defendant respond?
• Can a third-party defendant move to dismiss?
• What rule governs counterclaims by the third-party defendant?
• Can third-party Ds cross-claim against each other? If so, which rule governs?
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SEPARATE TRIALS
• What provision of FRCP 14 provides for separate trials?
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PLAINTIFFS AND THIRD-PARTY Ds
• Can a P sue a person joined as a third party D and if so, in what circumstances?
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THIRD-PARTY D and PLAINTIFF
• Can a third-party defendant claim against the original plaintiff and if so, in what circumstances?
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SUMMARY
• 3d party D can implead fourth-party D• 3d party D can also counter-claim, cross-claim,
claim against P (if arises out of same transaction or occurrence)
• A P who is a counterclaim-D can implead third parties on 3d party claims related to the counterclaim under FRCP 14(b).
• P can also sue persons joined as third party d if claim arises out of same transaction or occurrence – then third party d can counterclaim or cross-claim
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GROSS V. HANOVER INSURANCE CO.
• Federal or state court?
• What are the relevant facts?
• What is the procedural issue that the court must decide?
• How does the court rule on defendant’s motion?
• What is the court’s reasoning?
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PRACTICE EXERCISE 13
• Please see your casebook at p. 334