CIVIL PROCEDURE CLASS 17

Professor Fischer

Columbus School of Law

The Catholic University of America

September 30, 2005

CHIEF JUSTICE JOHN ROBERTS CONFIRMED Senate votes 78-22 to confirm

CONSTANCE BAKER MOTLEY 1921-2005

Federal district judge and highly successful civil rights lawyer

1961-1964 won 9 of 10 civil rights cases that she argued before the U.S. Supreme Court

SCOTUS, Anna Nicole Smith and the PROBATE EXCEPTION Marshall v. Marshall, 04-1544

WRAP-UP: PERMISSIVE JOINDER

Federal permissive joinder rules (18, 20, 21) try to maximize courts’ abilities to meet the distinctive needs of a particular case

Much discretion is given to courts to permit new parties to the action or new claims in multiparty litigation

Some limits on that discretion to try to reduce potential for confusion and prejudice and delay and ensure efficiency

RULE 20 IS PERMISSIVE

Parties are not required to be joined (subject to FRCP 19)

Kedra case

FRCP 21: MISJOINDER OF PARTIES UNDER RULE 20 Misjoinder will not result in dismissal

RULE 19(a): WHO MUST BE JOINED IF FEASIBLE? Parties w/overlapping interest in property:

19(a)(2)(ii) Persons with an interest that the action may

legally/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)

As a general rule parties to a contract must be joined in an action where a contract is being construed.

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

HOW DOES A PARTY CHALLENGE A PARTY’S ABSENCE UNDER RULE 19? Opposing 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.

CONSEQUENCES OF FAILURE TO JOIN AN ABSENT PARTY WHO SATISFIES 19(a) Party must be joined if feasible Court will order joinder if feasible - court will

not initially dismiss action for misjoinder What if it is not feasible to join that party?

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?

FACTORS THE COURT TAKES INTO ACCOUNT UNDER 19(b) 1. Potential prejudice of proceeding wihtout a

person e.g. inconsistent judgments 2. Possibility of avoiding adverse

consequences by shaping relief 3. Adequacy of judgment in person’s

absence 4. Availability of another forum where P can

get relief

ADDING ADDITIONAL CLAIMS BY COUNTERCLAIM OR CROSS-CLAIM

SEE FRCP 13 These are additional claims made by

parties to the action

COUNTERCLAIMS

What is a counterclaim? What provisions of the FRCP govern counterclaims?

What are the two kinds of counterclaims?

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?

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)

EXCEPTIONS

EXCEPTIONS

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

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?

BANQUE INDOSUIEZ V. TRIFINERY p. 324 CB 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?

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?

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? How are cross-claims different and similar to

counterclaims?