CIVIL PROCEDURE II OUTLINE
Spring Semester 2002
Prof. Raven-Hansen
I. SIMPLE JOINDER OF CLAIMS
a. STEPS:
i. GENERAL – Definition of Same Transaction or Occurrence:
1. Are the issues of fact and law raised in the claim and the counterclaim largely the same
2. Would res judicata bar a subsequent suit on the party’s counterclaim, absent the compulsory counterclaim rule?
3. Will substantially the same evidence support or refute the claim as well as the counterclaim
4. Is there a logical relationship between the claim and the counterclaim? (look at but for causation)
ii. Joinder of Parties – Rule 20 (not compulsory)
1. Must arise from same transaction or occurrence; AND
2. Must involve some common question of fact or law
iii. Joinder of Claims – Rule 13, 14, and 18
1. Plaintiff’s Joinder - Rule 18
a. Is there an independent claim
i. Which has been properly joined
ii. over which the court does have SMJ? (If SMJ is an issue)
2. Defendant’s Joinder
a. Counter-Claim - Rule 13
i. Compulsory – same transaction or occurrence (covered by §1367)
ii. Permissive – unrelated claim
1. Is there an anchor claim
a. If no, can still assert, but §1367 doesn’t apply absent an exception
b. Cross-Claim – Rule 13 (Not compulsory)
i. Must be same transaction or occurrence
ii. No unrelated claims
1. Is there a related claim already asserted?
a. If yes, Rule 18 allows assertion of additional claims (must have SMJ)
iii. If by a plaintiff, can’t destroy complete diversity jurisdiction (§1367)
c. Impleader – Rule 14 (not compulsory)
i. Is impleader proper under procedural rules?
ii. Must look to applicable tort law to determine if law entitles 3d plaintiff to reimbursement from 3d defendant.
iii. Is there SMJ???
1. If destroys complete diversity, must consider posture
iv. Once a party has been properly impleaded, Rule 14(a) allows various other related claims to be asserted;
1. Rule allows plaintiff to assert claims against the third party defendant that meet the same transaction test;
2. Once third party has been brought in, he and the original defendant become opposing parties thus triggering the counterclaim provisions of 13(a) and 13(b)
a. The Applicable Rules
ii. Federal Rule 7(a). Pleadings
iii. Federal Rule 13. Counterclaims/Crossclaims
iv. Federal Rule 14. Third Party Practice
v. Federal Rule 17. Parties
vi. Federal Rule 18. Joinder of Claims & Remedies
vii. Federal Rule 19. Compulsory Joinder
viii. Federal Rule 20. Permissive Joinder of Parties
ix. Federal Rule 21. Misjoinder and Non-joinder of Parties
x. Federal Rule 22. Interpleader
b. Introduction
i. Modern Joinder practice adopts the theory of equity and permits the joinder of parties and claims along transactional lines
ii. “Packaging” serves many functions:
1. avoids duplicate litigation; avoids unnecessary expense for the parties and the court; may also contribute to public confidence in judicial process by affording consistent decisions and promoting cohesion in the application of the law
iii. Packaging has Disadvantages as well:
1. Makes litigation very complex and may take longer than if case was not joined; may override or limit plaintiff’s choice of forum and the scope of litigation that plaintiff wants to pursue
iv. Generally, courts have given great authority and autonomy to plaintiff’s in light of joinder limitations
v. Joinder only provides procedural mechanisms by which plaintiffs can assert a variety of claims; does not supercede or change jurisdictional or venue requirements
1. Often however addition of parties or claims won’t affect venue
vi. Every claim joined in federal court must have subject matter jurisdiction;
1. Courts may allow the claim under supplemental jurisdiction
vii. There are 2 questions to consider:
1. Is there a joinder Rule that permits the assertion of this claim
2. If so, is the claim supported by subject matter jurisdiction?
c. The Federal Rules Regarding Joinder
a. Joinder is the first procedural issue for which the Federal Rules of Civil Procedure is the governing law
b. In 1934, Congress passed the Rules Enabling Act which authorized the US Supreme Court to promulgate rules of procedure to govern the practice in the federal district courts
i. 28 USC §2072: The Supreme court shall have the power to prescribe general rules of practice and procedure and rule of evidence for cases in the US district courts (including proceedings before magistrates thereof) and courts of appeals
c. Supreme Court then established an Advisory Committee of eminent lawyers, judges, and scholars to draft a set of uniform rules of practice; Advisory Committee continues to exist, constantly review the Rules, and periodically recommends amendments; basic structure of rules has remained same since 1938
d. Federal rules do not necessarily govern in state courts; many states have adopted a set of rules similar to the FRCP, but not necessarily identical
d. Initial Joinder of Parties
i. Rules leave it to the plaintiff to decide who the parties will be, but Rule 20(a) does set some limits on the plaintiff’s choice:
1. All persons may join in one action as plaintiff’s 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; the standard is the same for joining defendants
ii. Rule 20(a) authorizes but does not require plaintiffs to join multiple parties together for claims arising out of the same transaction or occurrence
iii. There is a two part test for joinder of parties:
1. Must arise from same transaction or occurrence; AND
2. Must involve some common question of law or fact
iv. Four Tests for Same Transaction or Occurrence (all are problematic)
1. Are the issues of fact and law raised in the claim and the counterclaim largely the same
2. Would res judicata bar a subsequent suit on the party’s counterclaim, absent the compulsory counterclaim rule?
3. Will substantially the same evidence support or refute the claim as well as the counterclaim
4. Is there a logical relationship between the claim and the counterclaim? (look at but for causation)
e. Plaintiff’s Joinder – Rule 18 and Rule 20
i. Res judicata bars a party who has sued a defendant one for a claim from doing so again
ii. If a claim could have be joined in the original suit, the claim cannot be tried subsequent to trial under another claim; compulsory claim
iii. Rule 18(a) – CLAIM JOINDER: provides that once there is an anchor claim, a party can join any other claim against claimee—related or not—this is only permission, court must have JURSIDICTION
iv. If the claims asserted arise from a single set of facts, then the parties will litigate all of the claims at the same time; thus while all claims an be asserted and joined, claims not arising from a single set of facts will most likely be litigated separately
1. Rule 42(b) allows and authorizes the trial judge to order a separate trial of unrelated claims; the court may order a separate trial of any claim…; thus the plaintiff sets the scope of litigation by the claim, but the judge determines how the issues will be tried
v. Rule 20 – PERMISSIVE JOINDER OF PARTIES
1. Claims must arise out of the same transaction and must have some common question of law or fact
2. Rule is permissive, but parties not required to join
3. Rules:
1. Purpose of allowing joinder of claims is to promote trial convenience and to prevent loss of time to the Court and the litigants
2. There are two primary requisites for joinder:
a. Right to relief be asserted by each plaintiff relating to or arising out of the same transaction or occurrence or series of transactions or occurrence; and
b. That some question of law or fact common to all of the parties arise in the same action
a. The determination of joinder is left to the wide discretion of the court
4. Misc:
a. Rule 21 empowers the court to sever claims which are improperly joined under Rule 20(a) into separate cases;
b. Rule 42 authorizes the court to order separate trial of claims by different plaintiffs, or the claims against different defendants, even through they are properly brought in a single suit under Rule 20(a)
c. Rule 82 Jurisdiction issues trumps all else
f. Defendant’s Joinder
i. SMJ and PJ must still be satisfied for all!!!
ii. Counterclaims – Rule 13 (a) (b)
i. Counterclaim under Rule 13 - counterclaim is a claim for relief by a defending party back against the party who is claiming relief from her
1. Counterclaims come in two stripes: compulsory Rule 13(a) and permissive Rule 13(b),
ii. Rule 13(a) Compulsory Counterclaims –
1. Rule 13 (a) A compulsory counterclaim is one that arises out of the same transaction or occurrence as the opposing party’s claims
2. Rule 13(a) Compulsory claims must be asserted in the original suit or else the claim is waived
3. A party may not later raise a compulsory counterclaim in a separate suit if it was not raised in the original suit
iii. Rule 13 (b) Permissive Counterclaims
1. Rule 13(b) A counterclaim is permissive if it does not arise out of the same underlying events; a defendant may assert it, but is not required to;
iii. Cross-Claims – Rule 13(g)
1. Rule 13(g), a claim against a co-party, a pleading may state as a cross-claim any claim by 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
2. Parties may not assert unrelated cross-claims
a. Unrelated cross-claims are allowed only after a valid related claim has been made and then under 18(a) unrelated cross-claim allowed
3. 13(g) uses the word “may”; thus cross-claims are not compulsory
4. Why not have a mandatory cross-claim rule?
a. Main Mainly because concern with preserving plaintiff’s choice of forum is greater than drive for efficiency; also efficiency may not be achieved if action gets too large and too complex
5. Rule 13(g) clearly allows a party to anticipate that the other party may be held liable and thus while the claim would not actually be available until the originating party has been held liable
6. Rule 13 (h) allows joinder of additional parties in counter-claims and cross-claims pursuant to Rule 19 and Rule 20
7. Banner Industries of New York v. Sansom ()
a. Facts: Defendant filed in Circuit Court of Jackson County, WV; Defendants published letter alleging that plaintiffs had made deliberate misrepresentations; Plaintiff then filed this action in federal court claiming that the letters published were false and defamatory; Defendant filed a motion to dismiss pursuant to Rule 13(a) on the grounds that the plaintiff’s claim is compulsory in the state action and therefore cannot be asserted separately in another suit
b. Rule: Claim was compulsory
i. In determining whether a claim is compulsory or not, we should look to four factors:
1. Are the issues of fact and law raised
2. Would res judicata bar a subsequent suit on the party’s counterclaim absent the compulsory counterclaim rule
3. Will substantially the same evidence support or refute the claim aw well as the counterclaim
4. Is there any logical relationship between the claim and counterclaim
ii. These four factors need not all be present, but should be weighed and balanced; specifically, the same evidence factor should not be determinative;
c. Gloss:
i. NOTE that 13(a) applies only to claims available at the time the pleading was filed.
ii. Note that most federal courts, in considered a counterclaim, will look to the rules of the state governing the initial suit; if the claims would be compulsory under those state rules, then it will rule as such
1. In some cases, Rule 13(a) may restrain the defendant’s choices in making a strategic choice; maybe the federal court would be more convenient or more favorable to the claim; but Rule 13(a) forces them to litigate in the forum chosen by the plaintiff
iii. Requiring defendants to assert counterclaims can raise substantial problems with subject matter jurisdiction; consider amount in controversy…is there federal question jurisdiction?
1. In some cases, when the court has subject matter jurisdiction over the original claim, the federal court has “supplemental jurisdiction” over other claims asserted by the same parties that arise from the same underlying events
2. Note that if the counterclaim is permissive, the court will not have jurisdiction
g. Impleaders
i. Rule 14. Impleader
1. STEPS:
a. Is impleader proper under procedural rules?
b. Must look tot applicable tort law to determine if law entitles 3d plaintiff to reimbursement from 3d defendant.
2. Rule 14(a) only allows a defendant to drag in a third party to pass on liability the defendant incurs to the plaintiff;
a. Defendant cannot use rule 14(a) as a mean to bring in a party who may be liable directly to the plaintiff, but who would not be liable to the defendant;
b. Defendant must have a derivative claim, not just an argument that the plaintiff could have sued the third party
c. A defendant can’t implead a third party because that third party might be liable to the defendant for the defendant’s own losses from the same transaction; but note that once a party has been properly impleaded, under Rule 18(a) it may also assert any other claims
d. Rule only requires that the impleaded third party “may be” liable to the defendant; its liability to the defendant need not be previously adjudicated when the impleader is filed
e. Impleading a party who is directly liable to the plaintiff and not to the defendant is not allowed because it is the plaintiff’s choice of who to sue and the rule do not want to interfere with plaintiff’s choice of parties and forum; plaintiff can not be forced to amend the complaint to add the third party
3. Most common impleader cases are claims for contribution
4. Rule 14(a) allows the third-party defendant to raise defenses on behalf of the primary defendant; can raise defenses to get defendant of the hook