Civil Procedure
4-2-10 QUIZ
Issues to be addressed?
Broad     Specific
Do the Rules allow for this action?
Does the Court have jurisdiction even if the Rules would allow the action?
This section we talked about FRCP 13 (counterclaims, crossclaims), 14 (impleader) 18
(Joinder of Claims), 19 (required joinder of parties), 20 (Permissive Joinder of Parties), 24
28 USC 1367 allows for a grant of supplemental jurisdiction based upon three things:
1) The basis of the original jurisdiction over the case (be it diversity or not)
2) Identity of the party - plaintiff or defendant seeking to invoke supp jurisdiction
3) The Rule authorizing joinder of the party or claim over whom supplemental
jurisdiction is sought
 FRCP 20(a)(1) plaintiffs may join in one action if they assert a claim arising out of
the same transaction, occurrence, or series of transactions, AND
 Any question of law or fact common to all plaintiffs will arise in the action
 FRCP 20(a)(2) same requirements but applies to defendants
Mosley v. General Motors - discrimination suit
FRCP 21 - Misjoinder
 Cannot dismiss an action because wrong party was joined, court can at any time add
or drop a party, the court may at any time sever any claim against a party
FRCP 19 (Required joinder of parties)
Temple v. Synthes - manufacturer wanted to bring in the doctor and hospital in a products
liability suit
The questions to be asked:
A party must be joined (if the joinder will not deprive the court of SM jurisdiction):
1) In that person’s absence, the court cannot accord complete relief among existing
parties; OR
2) That person claims an interest relating to the subject of the action and is so situtated
that disposing of the action in the person’s absence may impair or impede the
person’s ability to protect the interest OR leave an existing party subject to a
substantial risk of incurring double, multiple, or otherwise inconsistent because of the
* Typically, joint tortfeasors are not required parties, only permissive parties
* A party is not going to be bound by what happens in litigation to which they were not a
* FRCP 19(a)(1)(B) applicable to the potential required party, not the current defendant
* Standard joint tortfeasor case, FRCP 19 a(1)(B)(ii) will not be applicable
* FRCP 19(b) - When joinder is not feasible: the court must decide in equity or good
conscience whether the action should be dismissed, FACTORS listed on pg 44 in FRCP
FRCP 24 (Intervention)
* None of the existing parties want the third party in the lawsuit, and the third party is trying
to force themselves into the lawsuit
* 2 separate categories: intervention of right FRCP 24(a) AND permissive intervention
FRCP 24(b)
* Intervention as of right is designed to give those with strong interest in the litigation the
power to insist on joinder; right is given by statute OR has an interest that dismissal would
deprive them of that interest (unless existing parties adequately represent that interest)
* Permissive intervention - may be granted when the party has the right to intervene given by
statute OR has a claim or defense that shares with the main action a common question of law
or fact
National Resources Defense Council v. United States Nuclear Regulatory Commission
- Facts: NRDC sought injunctive relief against federal administrative agency (USNRC)
from issuing permits to operate uranium mills without preparing environmental
impact statements. USNRC had delegated its authority to issue permits to state
actors in this case the New Mexico Environmental Improvement Agency (NMEIA).
NRDC says that this sidesteps the National Environmental Protection Act and avoids
the requirement of an environmental impact statement.
- There were 6 other private nuclear companies that sought to intervene in the action
and were denied on the trial court level (both intervention as of right and permissive
Four requirements of FRCP 24(a)(2): timely motion (not on the eve of trial),
interest in the litigation, interest is impaired or impeded by current structure of
litigation, interest not adequately represented by existing parties currently in
Rationale: Court says that the requirement of having a direct interest in the outcome
of the lawsuit is too narrow of a construction of FRCP 24(a)(2). The court may
consider any significant legal effect in the applicant’s interest.
Cannot unduly delay or prejudice the action
FRCP 14 (Third Party Joinder)
Price v. CTB, Inc. - chicken farmer alleging new chicken house was defective, manufacturer
wanted to bring in third party
* FRCP 14(a) allows a defendant to assert a claim against anyone not a party to the original
action if that third party’s liability is in some way dependent upon the outcome of the
original action
* FRCP 14(a) implead any party who may be liable
* A court may also consider the burden upon the litigation that might ensue, and the merit of
the third party complaint when deciding to grant joinder
However, even though it may arise out of the same general set of facts as the main
claim, a third party claim will not be permitted when it is based upon a separate and
independent claim.
A thirdy party may be impleaded only when the original defendant is trying to pass
all or party of the liability onto that third party
Kroger v. Omaha Public Power District
- US District Court, 8th Cir., 1975
- Kroger had been injured and killed while on a crane
- Paxton/Vierling leased the crane and was Kroger’s employer
- Owen Equipment and Erection Company owned the crane
- Omaha Public Power District had once owned the electricity lines involved, no
longer owned them at the time of the accident, but still did maintenance; but owned
the electricity that injured plaintiff as well
- Paxton can be excluded from tort liability because of workers’ comp laws
1. A defendant may permissively implead a nonparty when that party may be liable to it
(the moving party) for all or part of the claim against it (i.e. contribution or
indemnification for the damages requested) There is a requirement to show the
substantive law or legal theory that impleader is appropriate in the given
2. Since the FRCP allows impleader, the next question is to determine whether the court
has jurisdiction (subject matter, diversity, or supplemental); the implead claim is not
diverse; however, there may be a common nucleus of operative fact between the
impleader claim and the original lawsuit. In this case, YES there is.
Discovery and FRCP 26
* One method that attorneys use to investigate the facts
* Allows parties to seek information from non-parties to the litigation
First Question: Is the information we seek going to be relevant?
- Relevancy
a) Probative? Will the information make a fact more or less likely, what is the
relationship between the pieces of information; If “A”, then “B” more or less
likely to be true
b) Material? Does “B” matter? Is that issue or fact part of the party’s claim or
defense, or more broadly, the subject matter of the lawsuit?
Disclosures: What a party to the litigation must make available to the other parties without
being asked
Interrogatories: Written questions
Request for Production of Documents: request for relevant documents
Deposition: Live, oral investigation of a person
Compulsory Examination: court-ordered exam
FRCP 26: Parties may obtain discovery regarding any nonprivileged matter, that is relevant
to any party’s claim or defense
Butler v. Rigsby
- US District Court, 1998
- Plaintiff was injured in an automobile accident, and they requested discovery from
the treating providers AMG, MHC
- Plaintiff wanted printouts for the total number of current patients; total number of
patients that were referred to them by plaintiff’s attorneys
- Issue: Is the information requested relevant to the subject matter of Plaintiff’s
- Holding:
- Rationale: The Court finds that certain aspects of the request for production, citing
that for the parties to provide a list of the patients referred by the attorneys would be
relevant. Could potentially show an evidence of a special relationship between the
provider/expert witness and legal counsel.
Davis v. Precoat Metals
- US Federal Ct, N.D. Illinois, 2002
- Plaintiffs are alleging discrimination based on race and national origin
- The plaintiffs requested a list of employee complaints of discrimination filed against
the company
- Issue: Is the information relevant?
- Holding: Yes.
- Rationale: The requests are narrowly tailored to the specific claims of the case.
Sexual discrimination information would not be as probative as if information sought
was related to a different plant but same type of claim (racial/national origin