CIVIL PROCEDURE CLASS 15
Professor Fischer
Columbus School of Law
The Catholic University of America
Sept. 30, 2002
WRAP-UP OF LAST CLASS
We discussed PE 11 applying rule 11 to the City
of Cleveland complaint
We began our unit on joinder by considering
when parties can add claims under Rule 18 and
parties under Rule 20
What Will We Do Today?
Continue to learn about joinder
I will lecture on Rule 19
We will learn rules for counterclaims and crossclaims (Rule 13)
You will be required to hand in Practice Exercise 12
at the end of class
SIMPLE JOINDER RULES IN THE
FRCP
LITIGATION SOMETIMES INVOLVES MORE THAN
ONE CLAIM OR MORE THAN TWO PARTIES
ISSUE: WHO ARE THE PARTIES TO THE SUIT?
AND WHAT ARE THE CLAIMS IN THE ACTION?
JOINDER OF CLAIMS: FRCP 18
JOINDER OF PARTIES: FRCP 19, 20, 21
GENERAL TREND IN FRCP IS BROAD JOINDER
IT IS EASIER TO JOIN CLAIMS THAN PARTIES
UNDER FRCP
REVIEW - FRCP 18: JOINDER OF
CLAIMS
Can a party bring unrelated claims against another
party in the same action?
Answer: Yes : A party asserting a claim to relief . . .
May join, either as independent or alternate claims,
as many claims, legal, equitable, or maritime, as the
party has against an opposing party (FRCP 18(a))
NOTE WE WILL DISCUSS SUPPLEMENTAL
JURISDICTION OVER NON-DIVERSE STATE
CLAIMS LATER
APPLICATION OF FRCP 18
FRCP 18 applies to:
P v. D
Third-party P v. Third-party D
D1 v. D2
D v. P
FRCP 18: PERMISSIVE OR
MANDATORY?
MUST a P bring all unrelated claims against
D in a single action? (please forget about
counterclaims for now)Why?
Important Note: related claims may be
barred by claim preclusion. We’ll learn about
this later.
Another Important Note: Court can order
separate trials under FRCP 42(b)
JOINDER OF CLAIMS HYPO
Polly files an action against David for
negligence. After David serves his answer, Polly
wishes to add a claim of breach of contract
against David. The statute of limitations has not
expired. Please advise Polly, specifying which
FRCP(s) apply.
JOINDER OF PARTIES
Some parties MUST be joined (FRCP 19)
Other parties may be joined if permissive joinder
rules apply (FRCP 20)
PERMISSIVE JOINDER: FRCP 20
Parties are generally “masters of their claims”
ISSUE: When can multiple Ps sue together?
ISSUE: When can P sue several Ds together in
the same action?
WHEN CAN Ps SUE TOGETHER?
IF: (under Rule 20(a))
1. Claims arise out of same transaction and occurrence or
series of transactions or occurrences AND
2. Common question of law or fact
subject to discretion of court to deny joinder where JURY
CONFUSION or UNDUE DELAY (20(b))
NOTE SUPPLEMENTAL JURISDICTION RULES MAY AFFECT
THIS- WE WILL DISCUSS LATER
Special rules for CLASS ACTIONS (Rule 23) where number
of parties is so large that it is impraticable for parties to sue
individually. They are represented by “class
representatives”. Court supervision important.
EXAMPLE
The 2:00 N2 metrobus collides with a car near
Dupont Circle. 17 passengers are injured. One
passenger, Arabella, sues the driver, Don, for
damages resulting from her injuries. The
remaining 16 passengers may join in the same
action if they also have claims against Don
arising out of the same accident and sharing
common questions of law and of fact.
WHEN CAN P SUE MULTIPLE Ds
IN SAME ACTION?
IF: (under Rule 20(a))
1. Claims arise out of same transaction and
occurrence or series of transactions or
occurrences AND
2. Common question of law or fact
subject to discretion of court to deny joinder
where JURY CONFUSION or UNDUE DELAY
(20(b))
RULE 20 IS PERMISSIVE
Parties are not required to be joined (subject to
FRCP 19)
However, courts sometimes CONSOLIDATE
actions (FRCP 42(a)) where they share common
questions of law or fact
Courts also have discretion to deny joinder and
order separate trials (FRCP 20(b))
FRCP 21: MISJOINDER OF
PARTIES UNDER RULE 20
Misjoinder will not result in dismissal
Parties can be dropped (severed) or added
1. On motion of parties
2. Or at initiative of court
AT ANY STAGE OF THE ACTION (subject only
to need to protect parties from unfair prejudice)
COURT CAN ORDER SEPARATE TRIALS OF
CLAIMS UNDER RULE 21 - could also separate
issues under Rule 42(b) which (unlike severed
issues under Rule 21) remain part of same
Kedra case p. 315
Why could all the different claims against the
defendants be joined in this action ?
Does the application of the relevant FRCPs in
this case promote the goals of Rule 1?
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
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)
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 - court will not 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 whereh P can get
relief
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?
ADDING ADDITIONAL CLAIMS BY
COUNTERCLAIM/CROSS-CLAIM
SEE FRCP 13
These are additional claims made by parties to
the action
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?
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)
What, if any, exceptions are there for
compulsory counterclaims?
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
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?
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?
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 crossclaims?
Are cross-claims compulsory?
Can any cross-claim be brought?