Joinder

Question 1

Joinder Basics

Answer 1

• Defines the scope of the case: how many parties & claims can be joined in one case
• Every single claim in fed ct must have SMJ
• Two things must be true:
  (1) joinder must be allowed by fed rules; and
  (2) there must be SMJ over the case

Question 2

Claim Joinder by P

Answer 2

• Anyone asserting a claim may join any additional claim she has against that adverse party - even if the additional claim is unrelated to the original claim
• This cannot be stressed enough, there must be SMJ over the claim too

Question 3

Proper Ps & Ds

Answer 3

• Claims by multiple Ps or against multiple Ds must:
  (1) arise from the same T/O
  (2) raise at least one common question of law/fact

Question 4

Necessary & Indispensable Parties

Answer 4

• Ct may force some nonparty (absentee) to join the case, usually on motion by D
• Ask 3 things:
  (1) is absentee necessary?
  (2) If absentee is necessary, can the absentee be joined? and
  (2) If an absentee cannot be joined, can the case proceed anyway?

Question 5

What does necessary mean?

Answer 5

• Without absentee, the ct cannot accord complete relief among the existing parties (worried about multiple suits)
• Absentee’s interest may be harmed if she is not joined, or
• Absentee claims an interest that subjects a party (usually D) to a risk of multiple obligations
• The second is the most likely one you’ll see on the exam
• Note: joint tortfeasors are never necessary

Question 6

Can absentee be joined?

Answer 6

• If absentee is labeled as necessary, a ct will see if joinder of absentee is feasible
• Joinder is feasible if:
  (1) there is PJ over absentee; and
  (2) There will be FSMJ over the claim by or against the absentee
• To determine if claim invokes diversity, the ct aligns the absentee as a P/D based on absentee’s interest
• If joinder of absentee is feasible, the absentee will be joined in the case

Question 7

What is absentee cannot be joined?

Answer 7

• Ex. there is no PJ over absentee
• The ct must determine whether to proceed w/o absentee/ dismiss entire case
• Ct makes this decision by looking at these factors:
  (1) is there an alternative forum available? (maybe some state ct)
  (2) what is the actual likelihood of harm to absentee?; and
  (3) can the ct shape relief to avoid that harm?
• You don’t necessarily need a necessary party’s presence to continue with the case, it is just necessary to join if feasible

Question 8

Claim Joinder by D: Counterclaim

Answer 8

• Part of D’s answer
• After serves a CC against P, P must respond within 21 days of service of the CC
• There are 2 types of CCs

Question 9

Compulsory Counterclaim

Answer 9

• One that arises from same T/O as P’s claim
• Unless counterclaimant has already filed the claim in another case, she must file the CCC in the pending case or the claim is waived
• This is the only ccc in fed ct

Question 10

Permissible CC

Answer 10

• one that does not arise from same T/O as P’s claim
• A party is not required to file it in this case and can sue on the claim in a separate case
• As always, there must be SMJ over CC, check for FQJ,DCJ, or SJ

Question 11

Impleader (3rd Party Practice)

Answer 11

• One where defending party (usually D) is bringing in a new party
• The party bringing the claim is called a 3rd party P and the new party is a 3rd party D (TPD)
• Permissible, D need not bring it in the current case

Question 12

Nature of Impleader Claim

Answer 12

• Used to shift to TPD the liability that the D will owe to P
• So, if D is found liable to P, he will try to get the TPD to pay part/all of his own liability.
• Look for claims for indemnity/contribution

Question 13

Definitions of Indemnity & Contribution

Answer 13

• Indemnity shifts liability completely (so TPD must cover full claim
• Contribution shifts it pro-rata (so TPD must cover a pro-rata portion

Question 14

Process for Impleading TPD into the Case

Answer 14

• To implead a 3rd party, D must:
  (1) File a 3rd party complaint naming TPD &
  (2) Have that complaint formally served on TPD
• There is right to implead within 14 days of serving an answer. After that, ct permission is needed
• After TPD is joined, P may assert claims against TPD, and TPD may assert claims against P, that arise out of the same T/O as the underlying case
• Remember to assess each claim separately for SMJ. Remember the limit for diversity cases, the limit applies only to claims by P and a TPD is not a P

Question 15

Intervention

Answer 15

• A nonparty absentee uses intervention to bring herself into the case
• She chooses to come in as with a P/D
• Ct may realign intervening party if it thinks the absentee came in on the wrong side

Question 16

Intervention of Right

Answer 16

• If absentee’s interest may be harmed if she is not joined, and that interest is not adequately represented by the current parties; intervention is of right

Question 17

Permissive Intervention

Answer 17

• If absentee’s claim/defense and pending case have at least one common question of law/fact, intervention is permissible and discretionary with ct
• Usually allowed unless it would cause delay/prejudice to someone
• Again, assess whether the claim by/against the intervenor invokes DJ/FQ/SJ.
• Remember that a claim by an intervenor P in a diversity case is a claim by a P, so the limit on SJ may apply

Question 18

Class Action

Answer 18

• A case in which rep(s) sue on behalf of a group

Question 19

How to Qualify for a Class Action

Answer 19

• All 4 must be shown:
  (1) Numerosity: there are too many class members for practicable joinder
  (2) Commonality: there must be some issue in common to all class members
  (3) Typicality: the class rep’s claims are typical of the claims of the class
  (4) Rep Adequate: the class rep will fairly & adequately represent the class

Question 20

3 Types of Class Actions

Answer 20

• After satisfying requirements for class action, the action must fall into one of 3 types of class actions:
  (1) Type 1: Prejudice - class treatment is necessary to avoid harm either to members or to the non-class party. These are rare
  (2) Type 2: Injunctive/Declaratory Relief - Seeks an injunction/declaratory judgment b/c D treated the class members alike. Ps in type 2 generally cannot seek damages
  (3) Type 3: Common Question/Damages - Common questions must predominate over individual questions; and the class action is a superior way to handle the dispute. Frequently used for mass torts

Question 21

Court Must Certify Class

Answer 21

• A case is not a class action until ct grants the motion to certify it as such. Ct must also:
  (1) Define the class & class claims, issues, or defenses &
  (2) Appoint class counsel, who must fairly & adequately represent the interests of the class
• Losing party can seek review from COA on the ruling for certification

Question 22

Notice to Class

Answer 22

• In type 3, the ct must notify class members that they are in a class
  The notice tells the class members that they:
  (1) Can opt out;
  (2) Will be bound by judgment if they don’t: &
  (3) Can enter a separate appearance through counsel
• Notice is not required in type 1 or 2

Question 23

Opt Out & Binding Effect of Class Action Judgment

Answer 23

• There is no right to opt out of type 1 or 2
• All class members are bound by judgment unless, in a type 3, they opt out

Question 24

Settlement of Class Action

Answer 24

• Parties can settle/dismiss a certified class action only with ct approval
• In all 3 types, ct must give notice to class member to get their feedback on whether the case should be settled/dismissed
• If it is type 3, ct also might refuse to approve the settlement unless members are given a second chance to opt out

Question 25

SMJ in Class Actions

Answer 25

- If class action asserts a right under fed law, FQJ may be used - For diversity cases, only citizenship of class rep is considered & AIC must exceed 75k - Claims by other class members are ignored

Question 26

Class Action Fairness Act (CAFA)

Answer 26

- Grants SMJ separate from DCJ. It lets a fed ct hear a class action if: (1) There are at least 100 members; (2) Any class member, not just the rep, is of diverse citizenship from any D; & (3) The aggregated claims of the class exceed $5 mil - Also, any one D, even an in-state D, may remove the case from state to fed ct - Local classes (where most class members and the primary D are citizens of the same state) do not stay in fed ct, these cases get dismissed (or, if they were removed, remanded)