Joinder

Question 1

2 Step Process - Joinder (Broad Questions)

Answer 1

1. Is it okay under the Federal Rules of Civil Procedure
2. Okay under SMJ (Div / FQ)?

Remember: Every single claim in federal court MUST have SMJ

Question 2

Claim Joinder by Plaintiff with Single Defendant

Answer 2

Plaintiff can assert any claim, even those unrelated, if the Defedent is the same in every claim

Question 3

Claim Joinder with Multiple Plaintiffs and Defendants (2 Needs)

Answer 3

1. Claims must arrive from the same transaction or Occurrence (“common nucleus of operative facts”)
2. Claims share a common question of law or fact

Question 4

Necessary and Indispensable Parties - 2 Part Test

Answer 4

1. Is missing party necessary (If no, 12(b)(7) motion is denied)
2. If yes than:

i) join missing party unless you can’t because of lack of PJ or missing party destroys SMJ

ii) if you can’t join, determine whether missing party is indispensable

Question 5

Who is a necessary party? Must meet 1 of 3 Tests

Answer 5

1. Without party (A), the court cannot accord complete relief among existing parties (worried about multiple suits); OR
2. A’s interest (property interest) may be harmed if he is not joined (practical harm); OR [most likely one tested on BAR]
3. A claims an interest that subjects a party (usually the D) to risk of multiple obligations

Question 6

Are joint tortfeasors necessary parties?

Answer 6

Fuck no, never are

Question 7

Once you determine a party is necessary, now what makes the party feasible? (2 prongs, the second step in the Necess/Indispensible Test)

Answer 7

1) is there PJ over party
2) Joining the party won’t ruin SMJ

Question 8

If the party is necessary and feasible, what happens?

Answer 8

Court orders the absentee party be joined

Question 9

If the party can’t be joined, the court must do one of two things. What are the options?

Answer 9

1. Proceed without absentee; or
2. Dismiss Case

Question 10

Counterclaim Definition

Answer 10

A claim against an opposing party (usually D to P)

Question 11

After D serves a counterclaim against P, what must P do?

Answer 11

Answer or make a motion within 21 days of service

Question 12

What are the two types of counterclaims?

Answer 12

1. Compulsory
2. Permissive

Question 13

Compulsory Counterclaims Definition and Requirements

Answer 13

Arises from the same t/o as P’s claim, unless you have already filed claim in another case

MUST file in pending case or the claim is WAIVED

Compulsory Counterclaims are the ONLY COMPULSORY CLAIM IN THE WORLD

Question 14

Permissive Counterclaims Definition and Requirements

Answer 14

Does NOT arise from same T/O as P’s claim

NOT required to assert in this case, may sue separately

Question 15

Crossclaim Definition

Answer 15

A claim against a co-party. It MUST arise from the same T/O as the underlying action. NOT compulsory - can assert or sue separately

Question 16

If D1 sues D2, what can D2 do?

Answer 16

The Ds become opposing parties meaning that D2 can assert a counterclaim against D1 – Counterclaim rules then apply

Question 17

Impleader Definition

Answer 17

A defending party is bringing in some one new – a 3rd party defendant (may call this third-party practice on bar)

Question 18

When can D bring in a TPD?

Answer 18

Can only bring in TPD if D can say to TPD “if I owe P, then TPD has to pay some or all of award” (Flow through liability)

Question 19

Claims (2) for Flow Through Liability

Answer 19

1. Indemnity (full payment)
2. Contribution (Pro rate portion)

Question 20

How long do you have to implead?

Answer 20

There is a right to implied within 14 days of serving your ANSWER. After that you need court permission

Question 21

After TPD is joined, may P assert a claim against TPD?

Answer 21

Yes, if the claim arises from the same T/O as the underlying case –> Must satisfy SMJ

Question 22

After TPD is joined, may TPD assert a claim against P?

Answer 22

Yes, if the claim arises from the same T/O as underlying case –> Must satisfy SMJ

Question 23

Intervention Definition

Answer 23

A nonparty brings themselves into the case. Application to intervene must be “timely”

Question 24

Intervention of Right

Answer 24

Parties interest may be harmed if she is not joined and is not adequately represented now

Same as test (2) for necessary parties

Question 25

Permissive Intervention

Answer 25

Parties claim/defense and the pending claim have at least one common question

Question 26

Class Actions - 4 Requirements that MUST be Met

Answer 26

1. Numerosity 2. Commonality 3. Typicality 4. Representative Adequate

Question 27

Numerosity

Answer 27

Too many members for practical joiner -- NO magic number

Question 28

Commonality

Answer 28

There is some issue in common to all class members, so resolution of that issue will generate answers for everyone in one stroke

Question 29

Typicality

Answer 29

Rep's claims are typical of those of the class

Question 30

Representative Adequate

Answer 30

The class Rep will fairly and adequately represent class

Question 31

Type of Class Action - Must satisfy ONE of three

Answer 31

1. Prejudice 2. Injunction or declaratory judgment 3. Damages

Question 32

Prejudice Class Definition

Answer 32

Class treatment necessary to avoid harm whether to class members or to the non-class party

Question 33

Injunction or Declaratory Judgment Class Def

Answer 33

Class seeks an injunction or declaratory judgment because D treated the class members alike ex) Employment discrimination

Question 34

Damages Class - 2 Requirement {Stricter Hurdle}

Answer 34

1) Common questions PRE-DOMINATE over individual questions; AND 2) Class action is the superior method to handle the dispute

Question 35

Rep's Complaint will say "class action," but case is not a class action until what? (3 Things)

Answer 35

1. Court certifies it as such 2. Define the class and the class claims, issues, or defenses 3. Appoint class counsel

Question 36

Class Action Appeal Exception

Answer 36

Usually you can't appeal until action has closed, BUT if you lose on the class certification motion you may seek appeal

Question 37

If the class is a Damages Class, the court must notify members that they are in a class individually. What does the notice tell them? (3 Things) NOT required for Type 1 or 2; Representative pays for notice

Answer 37

1. They can opt out 2. They'll be bound if they don't 3. They can enter a separate appearance through counsel

Question 38

Who is bound by the judgment in a certified class action?

Answer 38

All class members who DO NOT opt out

Question 39

Can the parties settle or dismiss a certified class action?

Answer 39

Not without Court approval

Question 40

SMJ for Class Actions

Answer 40

FQ or Diversity

Question 41

SMJ Diversity Rules (Class Actions)

Answer 41

1. For citizenship we only consider the Rep (ignore other class members) 2. For amount in controversy, the Rep's claim must exceed 75K (ignore other class members' claims)