Civ Pro 2nd half

What does a pleading have to include?

caption with court’s name, title, file number, and rule 7(a) designation; the name of all the parties; a party must state its claims or defenses in numbered paragraphs, each limited as faras practicable to a single set of circumstances; a statement in a pleading maybe adopted by reference elsewhere in the same pleading.

claim for relief

a pleading that states a claim for relief and must contain: a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; a short and plain statement of the claim; a demand for the relief sought

legally insufficient

even if everything in the complaint is true, not claiming something that’s actionable

factually insufficient

not enough facts (or too general) to put defendant on notice of what they did to give rise to the claim

Conley v Gibson

a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support ofthe claim that would entitle them to relief

general rules of pleading

(1)

In General. Each allegation must be simple, concise, and direct. No

technical form is required.

(2)

Alternative Statements of a Claim or Defense. A party may set out 2 or

more statements of a claim or defense alternatively or hypothetically,

either in a single count or defense or in separate ones. If a party makes

alternative statements, the pleading is sufficient if any one of them is

sufficient.

(3)

Inconsistent Claims or Defenses. A party may state as many separate

claims or defenses as it has, regardless of consistency.

Dioguardi v. Durning

Holding: The complaint survives a motion to dismiss because it alleges sufficient facts to state a claim for (i) conversion and (ii) violation of Treasury Regulations.

pleading special matters

Rule 9. (b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. (g) Special Damages. If an item of special damage is claimed, it must be specifically stated.

Twombley

1. Rule 8(a)(2) requires a “short and plain statement of the claim showing entitlement to relief to give Defendant “fair notice” of the claim “and the

grounds upon which it rests”

2. “Formulaic recitation of the elements” of the claim is not enough

3. Taking the allegations in the complaint as true, the factual allegations must rise above speculation

Allegations must be “plausible” (more than possible, less than probable)

A complaint pleads an adequate “short and plain statement of the claim” under Rule 8(a)(2) if the alleged facts (excluding conclusory legal language) show a “plausible” claim, with a reasonable expectation that discovery will reveal supporting evidence.

Iqbal rule

1. Identify and ignore recitations of the legal elements and conclusory allegations, which are not entitled to the assumption of truth;

2. Take all other well-pleaded factual allegations as true, and determine whether the factual allegations plausibly give rise to an entitlement to relief (more than possible, likely to bear fruit in discovery)

Iqbal holding

(1) After ignoring conclusory allegations and legal conclusions that the Defendants created a “policy” of imposing “harsh conditions” based on “religion, race, and/or national origin and for no legitimate penological interest,”

(2) The factual allegations, taken as true, do not plausibly suggest purposeful discrimination based on those factors; it is equally likely they were making arrests based on links to Al Qaeda, with a disparate impact on Arab and Muslim residents.

plausible pleading

Defendant can file a motion to dismiss for failure to state a claim to challenge the sufficiency of the complaint (Rule 12(b)(6))

Complaint must give a “short and plain statement of the claim showing entitlement to relief to give Defendant “fair notice” of the claim “and the grounds upon which it rests” (Rule 8(a)(2), Twombley)

Twiqbal

1. identify and ignore diret quotes of legal elements and conclusory allegations, then

2. assume all other well-pleaded factual allegations are true, and determine whether give rise to a plausible entitlement to relief (more than speculative, less than probable, likely to bear fruit on discovery), drawing on “judicial experience and common sense”

motion for sanctions

must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.

examples of reasonable sanctions

Monetary (costs, attorneys’ fees, penalty paid to court), Judicial reprimand (“tongue-lashing”), Required apology, Continuing Legal Education (CLE), Referral for disciplinary action, Claim- or defense-related sanction (dismissal, striking, assuming facts as true)

Hays v. Sony Corp.

Reasonable Inquiry

• Objective, national reasonableness standard; bad faith not required

• …Into Law: Research applicable law or consult with a lawyer who knows it (11(b)(2))

• …Into Facts: Reasonable efforts under the circumstances (11(b)(3)), including:

 Time to investigate

 Complexity of issues

 Opponent controls pertinent facts

 Extent to which lawyer relied on client

 Lawyer reasonably relied on referring lawyer

 Resources available to investigate further

 Appropriateness of further inquiry

Hunter v. Earthgrains Co Bakery

Good Faith Argument to Change the Law

 Lawyers may – and often must! – argue for a change in the law

 Argument is not frivolous merely because it fails; to be frivolous, must have no legal or factual basis

 Must acknowledge and disclose adverse authority (ROPC 3.3)

 May draw on other circuits’ law, minority/dissenting opinions, law review articles, consultation with other lawyers

proper purpose

Papers may not be presented for an “improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” FRCP 11(b)(1)

 Majority rule: Non-frivolous papers filed for an improper purpose violate this prohibition

Minority rule: Only frivolous filings can violate the proper purpose requirement

 Purpose is determined by an objective standard (not the subjective intent of the presenter); requires considering the paper itself plus any additional basis

Examples of Improper Purpose

• “Papering” through repeated & successive filings (looking to frequency and timing)

• Filings with “scandalous, libelous, and impertinent matters” to harass or embarrass (looking to the outrageous nature of the characterizations)

• Filing a non-frivolous motion with no intention to pursue it if the opposing party resists (looking to evidence of conduct before filing)

• Filing only to orchestrate a media event to embarrass the other party and get personal recognition (looing to planning and conduct of the media event)

how to serve process

▪ Personal Service: By any person at least 18 years old and not a party (FRCP 4(c)(2)):

a) Delivering to the individual personally;

b) Leaving at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

c) Delivering to an agent authorized by appointment or law to receive service.

▪ For corporations, delivering to corporate officer, agent, or statutorily appointed agent

Mullane v. Central Hanover Bank

• “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”

• “[W]hen notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.”

• “[I]f, with due regard for the practicalities and peculiarities of the case, these conditions are reasonably met, the constitutional requirements are satisfied.”

service of other papers

 Must serve all pleadings, motions, discovery papers, and other notices filed after the original pleading (FRCP 5(a))

 If other party is represented, must serve their attorney (FRCP 5(b)(1))

 Methods of service of other papers: (FRCP 5(b)(2)):

 Handing it to the person

 Leaving it at their office with a clerk or person in charge;

 Leaving it at their dwelling with a co-resident of suitable age and discretion;

 Mailing to last known address (or with clerk of court if there isn’t one);

 E-filing

 Email IF they consented in writing

 Other method IF they consented in writing

waiving service

Waiving Notice: Plaintiff may send Defendant:

▪ Notice in writing of the Court where the case was filed and the consequences of waiving and not waiving service (through language at the end of Rule 4);

▪ A copy of the complaint, two copies of the waiver form, and a prepaid envelope to return it;

▪ Give 30 days to US defendants (and 60 to international) to return the waiver

▪ If signed and filed: Proof of service not required, may proceed as though Defendant got the summons and complaint

▪ If not returned: Without good cause, must pay for additional efforts at services and attorney fees

two steps of default

1. Enter Default (Rule 55(a)): Clerk notes in the docket that the party is “in default”

2. Enter Default Judgment (Rule 55(b)): Clerk or Court awards a judgment against the party in default

requirements for default judgment by clerk

sum certain, plaintiff files an affidavit of the damages due, defendant failed to appear, and defendant is not a minor or legally incompetent

setting aside default and default judgment

To set aside entry of default: Good cause

To set aside a default judgment: Rule 60(b), for:

1) Mistake, inadvertence, excusable neglect;

2) Newly discovered evidence that could not have been found before;

3) Fraud

4) Judgment is void (ex. – Court lacked SMJ or PJ)

5) Judgment has been satisfied or discharged

6) Any other reason that justifies relief.

Baidoo v. Blood-Dzraku

 Issue: Is service of process by Facebook message reasonably calculated

to give Defendant notice of a divorce action?

 Source of law: NY Civil Practice Law and Rules 308(5): Judge can

“direct the manner by which service is to be made” if:

a) personal (in-hand), substitute (at dwelling on co-resident), and ‘nail and

mail’ (post on door and mail) service are all “impracticable”; and

b) the alternative method is “reasonably calculated” to give notice

 Holding: Method is reasonably calculated to give notice because:

 Plaintiff tried, but failed, to locate Defendant or his address

 Plaintiff showed Defendant operated and regularly used the Facebook

account

What is a motion?

 Rule 7(b): “A request for a court order must be made by

motion” and must:

1. Be in writing, or made orally during a hearing or trial;

2. State with particularity the grounds for seeking the order; and

3. State the relief sought.

Rule 12 Motions

 Motion to Dismiss (FRCP 12(b)):

1. Lack of Subject Matter Jurisdiction

2. Lack of Personal Jurisdiction

3. Improper Venue

4. Insufficient process (summons is wrong)

5. Insufficient service of process (method was not proper)

6. Failure to state a claim upon which relief can be granted

7. Failure to join a required party (more on this later…)

 Motion for More Definite Statement (FRCP 12(e)): Vague or ambiguous

 Motion to Strike Improper Material (FRCP 12(f)): “Redundant, immaterial, impertinent, or scandalous”

“A motion asserting any of [the 12(b) defenses] must be made before pleading if a responsive pleading is allowed”

21 days after date of service (FRCP 12(a)(1)(A)(i));

60 days after date waiver of service was sent in US (FRCP 12(a)(1)(A)(ii)); or

90 days after date waiver of service was sent outside US (FRCP 12(a)(1)(A)(ii))

Omnibus Rule

part of Rule 12, the requirement that a party consolidate all available Rule 12 pre-answer motions and defenses into a single, unified motion

The Waiver Rule

a party waives any defense listed in Rule 12(b)(2)-(5) (PJ, venue, insufficient process, insufficient service of process) by omitting it from a motion OR failing to either make it by motion or include it in a responsive pleading

SMJ may be raised at any time

failure to state a claim, to join a person required by rule 19, or to state a legal defense to a claim may be raised in any pleading allowed or ordered under rule 7(a), by a motion under rule 12c, or at trial

Answer deadlines

 A Defendant must serve an answer:

21 days after date of service (FRCP 12(a)(1)(A)(i));

60 days after date waiver of service was sent in US

(FRCP 12(a)(1)(A)(ii)); or

90 days after date waiver of service was sent outside

US (FRCP 12(a)(1)(A)(ii))

what goes into an answer?

12(b) motions that have not been waived;

Response to allegations in complaint;

Affirmative defenses; and/or

Counterclaims (against Plaintiff) and crossclaims (against other Defendants)

Defenses; Admissions & Denials

1) A party must:

(A) state in short and plain terms its defenses to each claim AND

(B) admit or deny allegations asserted against it

2) Must fairly respond to the substance of the allegation

3) May deny allegations in three ways:

General denial of all allegations in good faith (including jdxn)

Specific denials of designated allegations

Admit some and generally deny all others

4) Must admit part of an allegation if true, and can deny the rest

5) Lack knowledge or information sufficient to form a belief about the

truth of an allegation (= denial)

6) Allegations are admitted if not denied in a required responsive

pleading (except relating to amount of damages)

Affirmative Defenses

Rule 8c; In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: assumption of risk, contributory negligence, duress, estoppel, failure of consideration, fraud, laches (unfair delay in bringing the suit), res judicata (claim preclusion: same exact claim after final judgment), statute of frauds, statute of limitation, waiver

Respnding to Defenses

Rule 12(f), the court may strike an insufficient defense on its own or on motion made before responding or if response is not allowed within 21 days of service.

Reis Robotics USA v. Concept Industries

Affirmative defenses must comply with Rule 8(a). To determine if an affirmative defense is sufficient, the court looks to whether it is (1) appropriately pled as an affirmative defense; (2) comply with Federal Rules of Civil Procedure 8 and 9; (3) be evaluated under a standards identical to Federal Rule of Civil Procedure 12(b)(6).

Answers must comply with Rule 8(b); language included in Defendant’s denials in the answer was equivocal and confused the issues in dispute.

Like Twombley & Iqbal – “mere recitation” of cause of action or elements is insufficient

Does Twiqbal apply to answers?

Kind of. Courts are split. In practice, Answers get held to a lower standard than complaints:

1. Legal sufficiency: Must plead an actual and applicable affirmative defense

2. Factual sufficiency: Must plead some facts that underlie each element of the defense (but likely requires less than a complaint)

3. Adequate Pleading: Must state “short and plain terms” to put P on notice of the basis for the defense AND meet any heightened pleading (Rules 8 and 9)

Claim preclusion

one of two preclusion doctrines, “res judicata,” cannot relitigate the same claim

elements:

1. same claim

2. valid, final judgment on the merits

3. same parties (or their privies)

Issue preclusion

one of two preclusion doctrines, “collateral estoppel,” cannot relitigate the same legal issue

elements:

1. same issue

2. actually litigated and decided

3. essential to the judgment

4. full and fair opportunity to litigate

5. asserted against party who litigated the issue

Why preclude?

no second bite at the apple: judicial efficiency, fairness, resolution (repose), finality, consistency

River Park Inc v City of Highland Park

same claim test = transactional test:

Claim is barred if a single group of operative facts gives rise to both claims; single group of operative facts (first element of claim preclusion)

claim preclusion element 2

valid final judgment on the merits:

1. Valid: Did the court have SMJ & PJ?

    Still “valid” if both parties litigated the case to final judgment

   without raising jurisdictional defects (even SMJ!)

2. Final: Was the judgment the last order in the case?

    Still “final” even if there is a pending appeal

3. On the merits:

    On the merits: Judgment after jury trial, judgment as a

   matter of law, summary judgment, default judgment, dismissal

   for want of prosecution, dismissal with prejudice, dismissal

   under 12(b)(6), dismissed for statute of limitations

    Not on the merits: Voluntary dismissal, dismissal under

   12(b)(1-5, 7)

claim preclusion element 3

same parties; same claimant v. same defendant

claim preclusion v issue preclusion

claim is the whole thing, various issues make up the claim

ex: claim for breach of contract includes issues like was there valid formation, what are the damages, is there a breach, etc.

issue preclusion element 1:same issue?

The issue must be identical to one previously litigated and decided in a final judgment.

issue preclusion element 2: actually litigated and decided

• Litigated if the parties actively contested it through to a merits decision

Litigated: Trial, JMOL, summary judgment

Not litigated: Could have been raised in Case 1 but wasn’t; Default; Stipulation of the issue; Admission during discovery

• Decided if a judge or jury reached a decision on the issue

issue preclusion element 3: Essential to the judgment

• an issue is essential to the judgment if the judge or jury could not have found for the winning party unless they decided the issue in the winner’s favor.

  • general verdict? was the issue necessary for the verdict?

  • special verdict? is there a specific finding on the issue?

issue preclusion element 4: full and fair opportunity to litigate

 Stringency of Procedures in each case

 F&FOL? Case 1 was in an administrative tribunal with no

rules of evidence; Case 2 is in federal district court.

 Burden of Proof in each case

 F&FOL? Case 1 required proof beyond a reasonable doubt;

Case 2 required proof by a preponderance of the evidence.

 Incentive to fully litigate the issue in each case

 F&FOL? Case 1 involves a negligible fine; Case 2

would bankrupt the defendant

issue preclusion element 5: asserted against a party who litigated the issue

has to involve the exact same parties or their privies

non-mutual defensive issue preclusion

 “Non-mutual” - not between the exact same parties as Case 1

 “Defensive” issue preclusion - asserted by a non- party against a party from Case 1 to defend against a claim by that party

 A non-party may assert issue preclusion against a party to Case 1 so long as all of the elements of issue preclusion are met. Blonder Tongue v. Univ. of Ill. Foundation, 402 U.S. 313 (1971)

amendments as a matter of course

 A party may amend its pleading once as a matter of course within:

1. 21 days after serving the pleading;

2. 21 days after service of a responsive pleading if earlier than a Rule 12(b), (e), or (f) motion); or

3. 21 days after service of a Rule 12(b), (e), or (f) motion (if earlier than a responsive pleading).

amendments with leave of court

Rule 15a

 If not permitted “as a matter of course,” a party may only amend its pleadings:

With the opposing party’s written consent, or

With the court’s leave.

 The court should freely give leave when justice so requires.

Beeck v. Aquaslide

1. There is a presumption in favor of allowing amendment, unless there is a good reason to deny it.

2. Court identifies whether there is:

a) Undue delay by the amending party

b) Bad Faith by the amending party

c) Undue prejudice to the other side if the amendment is allowed

d) Futility of the proposed amendment (pointless, fails on the merits, no SMJ, or barred)

3. Court balances the harms (to the movant if motion to amend is denied, and any “preparation prejudice” to the other side if granted)

amending during trial

Rule 15b(1): During trial after an objection to evidence outside issues raised in the pleadings

 The court should freely permit amendment when it “will aid in presenting the merits and [the amendment would not] prejudice [the other] party’s action or defense on the merits.”

 May grant a continuance to enable objecting party to prepare

 (b)(2): May amend if issue was tried by express or implied consent; consent is implied if the opposing party:

 Should have known the evidence went to an unpleaded issue

 Acted as though it were raised in the pleadings (ex. - by cross examining witnesses or introducing evidence on that issue)

relation back of amendments

Rule 15c An amendment that adds a claim to a pleading relates back to the date of the original pleading when:

A. Statute of limitations allows it;

B. Amendment asserts a claim or defense that arose out of same the conduct, transaction, or occurrence as the original

pleading

Bonerb v. Richard J Caron Foundation

 Amendment of claims/defenses after the statute of limitations expires will “relate back” if the amended claim is part of the same conduct, transaction, or occurrence as those in the original pleading

 Courts look to the ‘transactional nexus’ between the amendment’s facts and the original complaint’s facts to determine:

 Was the non-moving party put on notice of the new claim or defense in the original complaint based on the same nucleus of operative facts?

 Not the same CTO if the amended claim will require proof of new facts that the responding party wouldn’t have realized would be at issue

 Typically permitted if the amended claim will:

 Flesh out factual details regarding the original cause of action;

 Only change the legal theory (but based on the same facts and same cause of action) (e.g., theory of cause of an accident); or

 Adds another claim arising out of the same facts, transactions, or occurrences.

Foman test

1. There is a presumption in favor of giving leave to amend, unless there is a good reason to deny it.

2. Court identifies whether there is:

a) Undue prejudice to the other side if the amendment is allowed;

b) Undue delay by the amending party;

c) Futility of the proposed amendment (pointless, fails on the merits, no SMJ, or barred)

d) Bad Faith by the amending party

3. Court balances the harms (to the movant if motion to amend is denied, and any “preparation prejudice” to the other side if granted)

joinder of claims

Rule 18(a): A party asserting a valid claim against another

properly joined party may join as many claims as they

have against that party.

The claims can be factually unrelated.

Court must still have SMJ over all claims.

joinder of parties

Rule 20(a)(1) & (2): Can join Plaintiffs and Defendants if:

A. The claim by or against them arises out of the same transaction, occurrence, or series of transactions and occurrences;

AND

B. They have at least one question of law or fact in common with all similarly situated parties (other Ps or Ds)

Rule 18

Once a party is properly joined, bring everything you’ve got!

Rule 18(a): A party asserting a claim may join as many claims as they

have against an opposing party who is properly joined

The claims can be factually unrelated

Court must still have SMJ over all claims

misjoinder

rule 21: misjoinder is not a reason to dismiss a case completely

judge may drop the party or sever the claims (on motion or sua sponte)

under rule 42, the court can order separate trials

severance of claims

on motion or sua sponte the judge may sever claims (treat them as separate cases)

rule 42(b)

the court can order separate trials of one or more separate issues or claims

Hohlbein v. Heritage Mutual

Issue: When do claims regarding different factual events arise from a common transaction or occurrence?

Rule: Claims arise from a common transaction or occurrence when the legal and factual claims are similar, the evidence relating to them overlaps, and joinder will promote convenience, efficiency, and judicial economy.

Do Claims Arise From the Same Transaction

or Occurrence? Ask:

 Are the factual and legal issues in the claims largely the same?

 Will the evidence supporting or refuting the claims substantially overlap?

 Is there a logical relationship between the claims?

 Will litigating the claims together promote efficiency, convenience, and judicial economy?

 Can the claims be heard together without a significant risk of jury confusion?

Rule 15c - Relation Back

operative language: “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading”

rationale (to resolve close cases): Notice – did the party who will defend against the claim get enough notice in the original pleading that it’s fair to allow the claim past the SoL?

Rule 20a - Party Joinder

operative language: “they assert any right to relief … with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences”

rationale (to resolve close cases): Efficiency – do the facts and issues overlap such that it makes sense to try the issues together?

Rule 20 permissive joinder

who may be included?

Rule 19 required joinder

who must be included?

A person who can be served and won’t destroy SMJ if added IS a required party if:

(1) Plaintiff can’t get the judgment they want without them (only when nonmonetary relief is required e.g. an injunction or declaratory judgment); OR

a. Incomplete relief? (Who gets the ring if party who owns it isn't in the case?)

b. Nonparty's legal interest will be negatively impacted as a practical matter (any judgment would harm their interests)?

c. An existing party may be subject to contradictory or redundant judgments? (if the nonparty sues/is sued in another case)

The non-party has an interest in the claim AND without them…

(2) The non-party’s interest will be harmed by the outcome OR

(3) Defendant may be subject to a conflicting judgment if the nonparty sues them separately

steps for joining required parties

1. 19(a): Is there a required party (someone needed to reach a decision on the merits)? Required if, without the nonparty…

a. An existing party will not get complete relief (court can only give the Plaintiff what they want by adding the nonparty, );

b. The nonparty’s legal interest will be negatively impacted “as a practical matter” (even though not bound by the judgment); OR

c. An existing party will be subject to conflicting judgments that order two contradictory or redundant things (since the nonparty isn’t bound in this case and could sue or be sued separately)

2. SMJ + PJ: Can the required party be joined?

3. 19(b): IF they can’t be joined, should the case be dismissed or proceed without them?

what if required parties can’t be joined?

If the required party can’t be joined, the Court can (a) continue without them; or (b) dismiss the case

Torrington Co. v. Yost

 If it is not feasible to join a required party, the court should decide whether to dismiss the case or continue with that party, considering:

1. Whether a judgment without the required party might prejudice the non-party or a current party;

2. Whether protective provisions in the judgment might avoid the prejudice;

3. The adequacy of a judgment entered without the nonparty; and

4. Whether plaintiff could obtain adequate relief in another forum if the action were dismissed

Steps for Required Party Analysis

Step One – 19(a): Is the nonparty a required party because without them:

a. An existing party cannot get complete relief (court can only give the claimant what they want by adding the nonparty);

b. The nonparty’s legal interest will be negatively impacted “as a practical matter” (any judgment on the claim would harm their interest); or

c. An existing party may be subject to contradictory or redundant judgments (if the nonparty sues or is sued in another case)?

Step Two – Is joining the required party feasible (i.e. - SMJ + PJ)?

Step Three - 19(b): If the required party cannot be joined, should the case be dismissed or proceed without them? Consider:

a. Whether a judgment w/out the nonparty might prejudice the non-party or a current party;

b. Whether protective provisions in the judgment might avoid the prejudice;

c. The adequacy of a judgment entered without the nonparty; and

d. Whether the claimant can get adequate relief in another forum if the action is dismissed.

When analyzing joinder…

1. Joining a NEW Party - permitted IF:

• The claim asserted by or against them arises from a common transaction or occurrence (or series thereof) as some other claim in the lawsuit; AND

• The action presents a common question of law or fact shared by all similar- situated parties (all Ps or all Ds)

Ask: Is there an overlap in the evidence such that joinder will promote convenience, efficiency, and judicial economy?

• Court must still have PJ over new defendants!

2. Joining a Claim (against a party already subject to a claim):

• Bring it! (can be unrelated!)

• Court must still have SMJ over new claims!

Required Parties (basic rules)

• Rule 20 - who may plaintiff's include?

• Rule 19 - who must plaintiff's include?

• Rule 12(b)(7) - defendant moves or raised by answer to add a required party or dismiss because a required party can't be joined

King v Blanton

car accident; one driver sued the other alleging she ran a red light and it went through trial; then later the second driver sued the first driver alleging SHE ran a red light; claim was precluded because it was compulsory to bring it under the first case as a counterclaim and when the second driver did not do that it was effectively waived; case dismissed (compulsory counterclaims)

crossclaim compulsory?

No - never. Crossclaims are discretionary; they are not compulsory in the same way as counterclaims, allowing defendants to assert claims against co-defendants without the requirement to do so. However, crossclaims must still arise from the same transaction or occurrence. If they don’t bring it now they can bring it later.

Erkins

• Defendant may implead a nonparty who is "derivatively or secondarily" liable to the defendant

  • Contribution: other responsible parties pay the party found liable for their share of the liability

  • Indemnification: another party agreed to or otherwise should cover the cost of the liability

• May not implead a party who is only liable directly to the plaintiff

Impleader by defendant

Rule 14(a)(1): Defending party may implead a “third-party defendant” who is or may be liable for all or part of the claim against the original Defendant

• On theory of contribution or indemnity

• W/in 14 days of answer, or after that by motion requesting the court’s leave

• Rule 14(a)(2): The third-party defendant:

A. Must assert Rule 12 defenses;

B. Must assert compulsory counterclaims, and may assert other counterclaims and crossclaims;

C. May raise additional defenses on behalf of third-party plaintiff; and

D. May assert claims arising out of the TO that is the subject of the underlying claim

Impleader by plaintiff

Rule 14(a)(3): Plaintiff may assert claims against third-party defendant arising from same transaction or occurrence as Plaintiff ’s underlying claim

• Rule 14(a)(3): The third-party defendant:

A. Must assert Rule 12 defenses;

B. Must assert compulsory counterclaims, and may assert other counterclaims and crossclaims;

C. May raise additional defenses on behalf of third-party plaintiff; and

D. May assert claims arising out of the TO that is the subject of the underlying claim

• Rule 14(a)(5): Third-party defendant may implead another non-party who is or may be liable for all or part of any of the claims against it

CNOF v same T/O

Common nucleus of fact = some facts in common

Same T/O = same event or series of events

CNOF is broader than same T/O

Intervention of right (Rule 24(a))

A nonparty must be permitted to intervene if provided by a federal statute, or if: (1) the nonparty has an interest relating to the subject of the action, (2) disposition of the action may practically impair their ability to protect that interest, and (3) existing parties do not adequately represent that interest.

Permissive intervention (Rule 24(b))

A court may allow a nonparty to intervene if provided by a federal statute, or if the nonparty has a claim or defense sharing a common question of law or fact with the existing action, unless intervention would unduly delay the proceedings or prejudice the original parties.

Adequate representation test for intervention

An inquiry into whether the existing parties will represent the nonparty's interest with the same vigor and for the same reasons; if they will not, representation is inadequate and intervention of right must be granted.

Grutter v. Bollinger

A lawsuit challenging a university affirmative action admissions policy where an affirmative action advocacy group was granted intervention of right because the university might not represent their interests with the same vigor or for the exact same reasons.