CIVIL PROCEDURE CLASS 12
Professor Fischer
Columbus School of Law
The Catholic University of America
October 2, 2001
WRAP-UP OF LAST CLASS
• We discussed Practice Exercise 11. This exercise
demonstrates the type of judgments lawyers have
to make in applying Rule 11 to a real live
situation.
• We discussed the rules for joinder of claims
(FRCP 18). Rule 18 permits joinder of unrelated
claims. Don’t forget that rules on amendment
(FRCP 15) may also be applicable!
• We discussed the rules for permissive joinder of
parties under FRCP 20.
WHAT WILL WE DO TODAY?
• Learn the rules for joinder of parties (FRCP
19-21)
• Discuss counterclaims (FRCP 13)
• Discuss cross-claims (FRCP 13(g))
• Discuss Practice Exercise 12 (CB 328)
• Discuss impleader under FRCP 14.
REVIEW: JOINDER OF
PARTIES
• Some parties MUST be joined (FRCP 19)
• Other parties may be joined if permissive
joinder rules apply (FRCP 20)
REVIEW: PERMISSIVE
JOINDER: WHEN CAN Ps SUE
TOGETHER?
• IF:
• 1. Claims arise out of same transaction and
occurrence
• AND 2. Common question of law or fact
• subject to discretion of court to deny
joinder where JURY CONFUSION or
UNDUE DELAY (20(b))
WHEN CAN P SUE MULTIPLE
Ds IN SAME ACTION?
• IF:
• 1. Claims arise out of same transaction and
occurrence
• OR 2. Common question of law or fact
• subject to discretion of court to deny joinder
where JURY CONFUSION or UNDUE
DELAY (20(b))
REVIEW: RULE 20 IS
PERMISSIVE
• Parties are not required to be joined
(subject to FRCP 19)
• However, courts sometimes
CONSOLIDATE actions (FRCP 42(a))
• 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 or added
1. On motion of parties
2. Or at initiative of court
AT ANY STAGE OF THE ACTION
COURT HOWEVER CAN ORDER
SEPARATE TRIALS
KEDRA v. CITY OF
PHILADELPHIA
• What are the key facts of this case
(everyone’s worst nightmare, probably!)
• What is the procedural issue for the court?
• What are the defendants arguments on this
issue?
• How does the court rule on this issue?
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
POLICY ISSUES FOR
COMPULSORY JOINDER
• All joinder rules attempt to render complete
justice efficiently (with as little litigation as
possible)
• But compulsory joinder rules may conflict with
other policies, such as that joinder may prejudice
interests of individuals sought to be joined, or of
existing parties. Another issue - will court have
jurisdiction over parties sought be joined? Also,
what is the effect of judgment on person who
might be joined?
RULE 19(a): WHO MUST BE
JOINED IF FEASIBLE?
• What is meant by “feasible”?
RULE 19(a): WHO MUST BE
JOINED IF FEASIBLE?
• Parties with overlapping interest in
property: 19(a)(2)(ii)
• Persons with an interest that the action may
legally or 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)
• Parties to a contract where a court is
construing it
HOW DOES A PARTY
CHALLENGE A PARTY’S
ABSENCE UNDER RULE 19?
HOW DOES A PARTY
CHALLENGE A PARTY’S
ABSENCE UNDER RULE 19?
• A 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)
• What are the consequences?
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.
2.
3.
4.
Potential prejudice
Shaping relief
Adequacy of judgment
Costs to plaintiff
PLEADING REQUIREMENT:
19(c)
• What does 19(c) require?
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? Why or why not?
ADDING ADDITIONAL
CLAIMS BY
COUNTERCLAIM/CROSSCLAIM
• SEE FRCP 13
• These are additional claims made by parties
to the action
COUNTERCLAIMS
• What is a counterclaim? (13(a), 13©)
• 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?
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?
CROSS-CLAIMS
• What is a cross-claim?
• What provision of the FRCP governs crossclaims?
• Are cross-claims compulsory?
• Can any cross-claim be brought?
EXAMPLES
• A v. B and C
• B v. C (cross-claim)
• What if after B serves cross-claim on C, C
wishes to bring a claim against B? What is
that claim called? What are the
prerequisites for that claim?
RESPONDING TO A CROSS
CLAIM
• What response must a cross-claim
defendant make to a cross-claimant’s crossclaim?
• Does it matter whether a cross-claimant has
correctly identified the cross-claim as such
in the answer?
JOINDER OF ADDITIONAL PARTIES
BY COUNTERCLAIMANTS/CROSSCLAIMANTS
• FRCP 13(h)
• Where counterclaimants or cross-claimants
seek to join additional parties, leave is
probably not required
SEPARATE TRIALS
• What does FRCP 13(i) provide?
BANQUE INDOSUIEZ V.
TRIFINERY
• 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?
PRACTICE EXERCISE 12:
POSSIBLE COUNTERCLAIM
• Shortly after the accident in which Charles
was killed, Nancy calls a friend who works
at Raytheon (where Randall is employed)
and tells her that Randall is an alcoholic.
Randall is fired from his job. Does Randall
have a defamation claim against Nancy for
slander? Would this be a compulsory or
permissive counterclaim? Would you need
to do some legal research before you could
answer this question?
PRACTICE EXERCISE 12:
CROSS-CLAIM
• Assume Nancy’s motion to add Ultimate
Auto/City of Lowell has been granted and
amended complaint filed. Also assume you
represent Randall. Do you have a plausible
cross-claim? Prove it. Focus on the
language of Mass R. Civ. P. 13(g) which is
the same as Fed. R. Civ. P. 13(g). If you do
have a plausible cross-claim, how many
counts would it have?
FRCP 14: IMPLEADER
• This governs the procedure whereby the
court can allow a defendant to bring a third
party (not already a party) into the action
• This is known as IMPLEADER
• What is the purpose of impleader?
FRCP 14: IMPLEADER
• What is the defendant called? THIRD
PARTY PLAINTIFF
• What is the third party called? THIRD
PARTY DEFENDANT
FRCP 14 v. 13
• What is the difference between impleader
and a counterclaim?
• What is the difference between impleader
and a cross-claim?
Who can be joined under FRCP
14?
• Persons, not already parties, who, under applicable
law, may be obligated to reimburse the D
• e.g. tortfeasor seeks contribution or indemnity
from others who may be liable but who P has not
sued
• OR someone as acted a a guarantor of a
transaction
• MUST SUCH PERSONS BE JOINED?
Timing of Impleader Claims
• At what stage of the action can a third party complaint be served?
• When is the leave of court required?
Relation of third-party claims to
original claim
• Can a D make a third-party claim under
FRCP 14 that is unrelated to the claims
against that D?
• NOTE THAT LIABILITY OF THIRDPARTY D DEPENDS ON OUTCOME OF
MAIN CLAIM!
YET MORE PARTIES
• Can a third-party D implead other parties
and if so, in what circumstances?
• Can this go on and on forever?
• Can a P who is a counterclaim-D implead
third parties and if so, in what
circumstances? What provision of the
FRCP governs this?
HYPOTHETICAL
• Assume the Massachusetts contribution
statute applies. Souter is involved in a car
accident with two other drivers, Scalia and
Rehnquist. Souter sues Scalia for
negligence. Can Scalia implead Rehnquist
on the basis that his negligence also caused
Souter’s injuries?
HYPOTHETICAL
• Assume the Massachusetts contribution
statute applies. Souter is involved in a car
accident with two other drivers, Scalia and
Rehnquist. Souter sues Scalia for
negligence. Can Scalia implead Rehnquist
on the basis that it was Rehnquist who was
negligent, not Scalia?
PLEADING REQUIREMENTS
• A third-party complaint must comply with
FRCP 8 and 11
SERVICE REQUIREMENTS
• What rule governs service of a third-party
complaint?
RESPONDING TO A THIRDPARTY COMPLAINT
• How does a third-party defendant respond?
• Can a third-party defendant move to
dismiss?
• What rule governs counterclaims by the
third-party defendant?
• Can third-party Ds cross-claim against each
other? If so, which rule governs?
SEPARATE TRIALS
• What provision of FRCP 14 provides for
separate trials?
PLAINTIFFS AND THIRDPARTY Ds
• Can a P sue a person joined as a third party
D and if so, in what circumstances?
THIRD-PARTY D and
PLAINTIFF
• Can a third-party defendant claim against
the original plaintiff and if so, in what
circumstances?
SUMMARY
• 3d party D can implead fourth-party D
• 3d party D can also counter-claim, cross-claim,
claim against P (if arises out of same transaction
or occurrence)
• A P who is a counterclaim-D can implead third
parties on 3d party claims related to the
counterclaim under FRCP 14(b).
• P can also sue persons joined as third party d if
claim arises out of same transaction or occurrence
– then third party d can counterclaim or crossclaim
GROSS V. HANOVER
INSURANCE CO.
• Federal or state court?
• What are the relevant facts?
• What is the procedural issue that the court
must decide?
• How does the court rule on defendant’s
motion?
• What is the court’s reasoning?
PRACTICE EXERCISE 13
• Please see your casebook at p. 334