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Prof. Washington Civ Pro Spr. 2006 JOINDER Under the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness.

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Presentation on theme: "Prof. Washington Civ Pro Spr. 2006 JOINDER Under the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness."— Presentation transcript:

1 Prof. Washington Civ Pro Spr JOINDER Under the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.

2 Prof. Washington Civ Pro Spr Joinder Rules Claims Claims 18 Joinder of Claims (not compulsory) 18 Joinder of Claims (not compulsory) 13(a) Compulsory Counterclaims ( D vs. P) 13(a) Compulsory Counterclaims ( D vs. P) 13(b) Permissive Counterclaims (D vs. P) 13(b) Permissive Counterclaims (D vs. P) 13(g) Cross Claims (P vs. P or D vs. D) 13(g) Cross Claims (P vs. P or D vs. D) 14 Third Party Claim (Impleader) (can be brought by a P or a D) 14 Third Party Claim (Impleader) (can be brought by a P or a D) Parties Parties 19 Compulsory Joinder of Parties 19 Compulsory Joinder of Parties 20 Permissive Joinder of Parties 20 Permissive Joinder of Parties 22 Interpleader 22 Interpleader 23 Class Action 23 Class Action 24 Intervention 24 Intervention

3 Prof. Washington Civ Pro Spr Step Inquiry for Adding Claims and / or Parties 1) Do the Rules allow the parties / claims to be added (e.g., 13, 18, etc... )? 1) Do the Rules allow the parties / claims to be added (e.g., 13, 18, etc... )? 2) Does the addition of the parties / claims maintain personal or subject matter jurisdiction? 2) Does the addition of the parties / claims maintain personal or subject matter jurisdiction? The answer to both inquiries must be yes to allow joinder of the party / claim. The answer to both inquiries must be yes to allow joinder of the party / claim.

4 Prof. Washington Civ Pro Spr Rule 18 Joinder of Claims Policy Justifications: allows a party to resolve multiple disputes against the same D in one action which is cheaper than having to bring them in a separate suit. There is no rule that compels joinder of claims; however, SOL and former adjudication operate to motivate plaintiffs to join several claims against a defendant. There is no relatedness requirement between several claims brought vs. a defendant. A party (plaintiff or defendant) can use Rule 18 to add claims to an original first party claim, to a counterclaim, to a cross-claim or a third-party claim. Rule 42(b) affords a trial court the discretion to order separate trials where the addition of claims renders a case unmanageable.

5 Prof. Washington Civ Pro Spr Compulsory Ctr. Claim 13(a) Permissive Ctr. Claim 13(b) Has a relatedness requirement (claim must arise out of the same transaction and occurrence) Has no relatedness requirement Automatically satisfies 1367 Generally does not satisfy 1367 and therefore requires independent SMJ basis. There are some instances where a permissive counterclaim may satisfy the 1367 case and controversy requirement. Must be initiated or considered waived and precluded by former adjudication Need not be initiated and not precluded by former adjudication Pleaded in the answer to the complaint or in a reply to a previously asserted counterclaim

6 Prof. Washington Civ Pro Spr Plant v. Blazer 4 Part O & T Test for Ctr. Claims 1) Similarity of factual and legal issues b/t Ps claim and Ds counterclaim 2) Would res judicata bar a subsequent suit on the claim (i.e., would a subsequent law suit raising the claim be precluded b/c claim should have been brought as compulsory counterclaim) 3) Similarity of evidence necessary to prove Ps claim and Ds counterclaim 4) Logical relationship b/t the Ps claim and the Ds counterclaim ( i.e., does the counterclaim arise from the same aggregate core of operative facts)

7 Prof. Washington Civ Pro Spr The Process of Asserting and Challenging a Counterclaim P sues D (note that a x-claim D or a third party D can also assert counterclaims) P sues D (note that a x-claim D or a third party D can also assert counterclaims) D raises a counterclaim under 13(a) asserting no independent basis for SMJ D raises a counterclaim under 13(a) asserting no independent basis for SMJ P moves to dismiss the counterclaim for lack of SMJ under 12(b)(1) essentially arguing that the counterclaim is permissive in character P moves to dismiss the counterclaim for lack of SMJ under 12(b)(1) essentially arguing that the counterclaim is permissive in character D contends that the counterclaim is compulsory and therefore satisfies 1367 D contends that the counterclaim is compulsory and therefore satisfies 1367

8 Prof. Washington Civ Pro Spr Tricky, Tricky, Tricky! Great Lakes v. Herbert Cooper (Note 6 p. 740) GL sues HC for state law claims GL sues HC for state law claims HC retaliates bringing an antitrust counterclaim asserting unjustified lawsuits HC retaliates bringing an antitrust counterclaim asserting unjustified lawsuits GLs claims are dismissed pursuant to 12(b)(1) GLs claims are dismissed pursuant to 12(b)(1) HC claim remains in federal ct pursuant to 1331 HC claim remains in federal ct pursuant to 1331 GL reinitiates its state law claim in the form of a counterclaim GL reinitiates its state law claim in the form of a counterclaim Ct rules that GLs counterclaim is compulsory in nature and therefore satisfies 1367 Ct rules that GLs counterclaim is compulsory in nature and therefore satisfies 1367

9 Prof. Washington Civ Pro Spr Practice Question In 2003, B purchased a house from S and gave a promissory note for $50K, payable on January 2, 2004, for the unpaid balance of the purchase price. In 2003 alleging numerous defects in the house, B sued S for breach of contract and breach of warranty. Is Ss claim on the unpaid promissory note a compulsory counterclaim? In 2003, B purchased a house from S and gave a promissory note for $50K, payable on January 2, 2004, for the unpaid balance of the purchase price. In 2003 alleging numerous defects in the house, B sued S for breach of contract and breach of warranty. Is Ss claim on the unpaid promissory note a compulsory counterclaim?

10 Prof. Washington Civ Pro Spr Practice Question P sues automobile Dealer and Manufacturer. The complaint, which is properly before the court under 1332, alleges that P was injured in an accident caused by a defect in the vehicles steering mechanism. P sues automobile Dealer and Manufacturer. The complaint, which is properly before the court under 1332, alleges that P was injured in an accident caused by a defect in the vehicles steering mechanism. Manu. wants to assert that the vehicle was not defective when delivered to Dealer and that any defect must have been introduced by Dealer when the vehicle was being prepared for delivery to the customer. What pleading, if any, should Manu. File? Manu. wants to assert that the vehicle was not defective when delivered to Dealer and that any defect must have been introduced by Dealer when the vehicle was being prepared for delivery to the customer. What pleading, if any, should Manu. File?

11 Prof. Washington Civ Pro Spr Practice Question P sues automobile Dealer and Manufacturer. The complaint, which is properly before the court under 1332, alleges that P was injured in an accident caused by a defect in the vehicles steering mechanism. P sues automobile Dealer and Manufacturer. The complaint, which is properly before the court under 1332, alleges that P was injured in an accident caused by a defect in the vehicles steering mechanism. Manufacturer wants to assert that Dealer has failed to pay it for several vehicles it delivered to Dealer (not including the vehicle at issue in the action). Can it do so? What pleading, if any, should Manufacturer file? Manufacturer wants to assert that Dealer has failed to pay it for several vehicles it delivered to Dealer (not including the vehicle at issue in the action). Can it do so? What pleading, if any, should Manufacturer file?

12 Prof. Washington Civ Pro Spr Practice Question P sues automobile Dealer and Manufacturer. The complaint, which is properly before the court under 1332, alleges that P was injured in an accident caused by a defect in the vehicles steering mechanism. P sues automobile Dealer and Manufacturer. The complaint, which is properly before the court under 1332, alleges that P was injured in an accident caused by a defect in the vehicles steering mechanism. Dealer wants to assert that P owes Dealer money for breach of contract that has no relationship whatsoever to the vehicle or accident at issue in the Ps complaint. The Dealer claims damages in the amount of $75K. Can Dealer do so? What pleading, if any, should it use? What, if any, response should Dealer anticipate from P? Dealer wants to assert that P owes Dealer money for breach of contract that has no relationship whatsoever to the vehicle or accident at issue in the Ps complaint. The Dealer claims damages in the amount of $75K. Can Dealer do so? What pleading, if any, should it use? What, if any, response should Dealer anticipate from P?

13 Prof. Washington Civ Pro Spr Practice Question P sues automobile Dealer and Manufacturer. The complaint, which is properly before the court under 1332, alleges that P was injured in an accident caused by a defect in the vehicles steering mechanism. P sues automobile Dealer and Manufacturer. The complaint, which is properly before the court under 1332, alleges that P was injured in an accident caused by a defect in the vehicles steering mechanism. Dealer and Manufacturer both want to assert that there was no defect in the vehicle and that the accident was solely the result of the Ps negligence. What pleading, if any, should Dealer and Manufacturer use? Dealer and Manufacturer both want to assert that there was no defect in the vehicle and that the accident was solely the result of the Ps negligence. What pleading, if any, should Dealer and Manufacturer use?

14 Prof. Washington Civ Pro Spr Rule 20 Permissive Joinder of Parties Policy Justification: to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits Parties who join pursuant to this rule must be interested in claims that arise out of the same O & T or series of O & Ts, and share in common at least one question of law or fact. Parties who join pursuant to this rule must be interested in claims that arise out of the same O & T or series of O & Ts, and share in common at least one question of law or fact. Generally does satisfy 1367 and therefore does not require independent SMJ basis, but there are instances where a Rule 20 party is not considered to automatically satisfy Generally does satisfy 1367 and therefore does not require independent SMJ basis, but there are instances where a Rule 20 party is not considered to automatically satisfy The consequence of misjoinder is severance not dismissal (Rule 21). The consequence of misjoinder is severance not dismissal (Rule 21). Court retains the discretion under Rule 42(b) to sever claims. Court retains the discretion under Rule 42(b) to sever claims.

15 Prof. Washington Civ Pro Spr Rule 19 Compulsory Joinder of Parties Persons should be joined in an action when their absence will materially reduce the likelihood that the court can provide justice for other parties to the action or where it will be detrimental to the non-party. Persons should be joined in an action when their absence will materially reduce the likelihood that the court can provide justice for other parties to the action or where it will be detrimental to the non-party. Court will consider how joinder of the party will affect diversity in a case. If it cannot join the party w/o destroying diversity it will consider under 19(b) whether to proceed w/o the party. Court will consider how joinder of the party will affect diversity in a case. If it cannot join the party w/o destroying diversity it will consider under 19(b) whether to proceed w/o the party. Court has the discretion to determine whether to allow the action to proceed without the party or to dismiss the action where the party cannot be joined. Court has the discretion to determine whether to allow the action to proceed without the party or to dismiss the action where the party cannot be joined.

16 Prof. Washington Civ Pro Spr Rule 14 Impleader Policy Justifications: efficiency, cost effective, prevents conflicting outcomes by binding impleaded party to the findings in the original case Must be filed within 10 days of the filing of the original answer. If not leave of court is required. Must be filed within 10 days of the filing of the original answer. If not leave of court is required. Only persons not already parties may be impleaded (compare to x-claims and ctr-claims). Only persons not already parties may be impleaded (compare to x-claims and ctr-claims). Under rule 14 the theory of liability is not it was him not me that is liable to the P but rather if I am liable to the P then the third party D is liable to me for all or part of my liability to the P. Under rule 14 the theory of liability is not it was him not me that is liable to the P but rather if I am liable to the P then the third party D is liable to me for all or part of my liability to the P. Third party Ds can assert x-claims, ctr claims, and their own third party claims. Third party Ds can assert x-claims, ctr claims, and their own third party claims. Third party Ds can also bring a permissive claim vs. the first party P; however, the claim must arise out of the same O&T that gives rise to Ps original claim. Third party Ds can also bring a permissive claim vs. the first party P; however, the claim must arise out of the same O&T that gives rise to Ps original claim.

17 Prof. Washington Civ Pro Spr Intersection between Rule 14 Impleader & Jurisdiction Subject Matter Jurisdiction: Generally Rule 14 claims automatically qualify for 1367 jurisdiction; however, when the P is asserting the third party claim and the jurisdictional basis for the original claim is 1332, 1367(b) prohibits the invocation of supplemental jurisdiction to satisfy subject matter jurisdiction. Subject Matter Jurisdiction: Generally Rule 14 claims automatically qualify for 1367 jurisdiction; however, when the P is asserting the third party claim and the jurisdictional basis for the original claim is 1332, 1367(b) prohibits the invocation of supplemental jurisdiction to satisfy subject matter jurisdiction. Personal Jurisdiction: Personal jurisdiction over a third party D will usually be easy to establish b/c the D will have been substantively involved in the underlying claim in satisfaction of Shoe requirements. If not Rule 4(k)(b)(1) allows an extra 100 mile boost to the Cts jurisdiction which can bring some 3rd party Ds w/in the Cts jurisdiction who would otherwise be without it. Personal Jurisdiction: Personal jurisdiction over a third party D will usually be easy to establish b/c the D will have been substantively involved in the underlying claim in satisfaction of Shoe requirements. If not Rule 4(k)(b)(1) allows an extra 100 mile boost to the Cts jurisdiction which can bring some 3rd party Ds w/in the Cts jurisdiction who would otherwise be without it.

18 Prof. Washington Civ Pro Spr Step Inquiry w/re: to Rule 14 1) Does the applicable substantive law afford a basis for a derivative liability action (e.g., indemnification / contribution)? 1) Does the applicable substantive law afford a basis for a derivative liability action (e.g., indemnification / contribution)? 2) Does Rule 14 permit the third party to be joined in the litigation? 2) Does Rule 14 permit the third party to be joined in the litigation? 3) Are subject matter / personal jurisdiction satisfied? 3) Are subject matter / personal jurisdiction satisfied? The answer to all 3 inquiries must be yes to implead the party. The answer to all 3 inquiries must be yes to implead the party.

19 Prof. Washington Civ Pro Spr Impleader Practice Question A sues B for assualt, in a claim arising out of a scuffle while both were waiting in line to enter a nightclub. B seeks to implead C, contending that A has mistaken the identity of his assailant, and that C, not B, was the person who struck A. Can A object to Bs impleader of B? A sues B for assualt, in a claim arising out of a scuffle while both were waiting in line to enter a nightclub. B seeks to implead C, contending that A has mistaken the identity of his assailant, and that C, not B, was the person who struck A. Can A object to Bs impleader of B?

20 Prof. Washington Civ Pro Spr Impleader Practice Question P sues L for defective construction of the chicken houses. L counterclaims vs. P for unpaid construction bills, alleging that P failed to pay the agreed-upon contract price for the construction. 6 months after responding to Ls counterclaim, P seeks to implead Bank, which, P alleges failed to fund the line of credit as it had agreed. Does Rule 14 permit a P to implead Bank? P sues L for defective construction of the chicken houses. L counterclaims vs. P for unpaid construction bills, alleging that P failed to pay the agreed-upon contract price for the construction. 6 months after responding to Ls counterclaim, P seeks to implead Bank, which, P alleges failed to fund the line of credit as it had agreed. Does Rule 14 permit a P to implead Bank?

21 Prof. Washington Civ Pro Spr Joinder / 1367 Practice Question Ann, a citizen of IL, sues B, a citizen of IL, in federal district ct in IL alleging that B violated federal civil rights statutes in firing her. Ann seeks to add a state law claim alleging that her firing also violated a state wrongful discharge law. Is there supplemental jurisdiction? Ann, a citizen of IL, sues B, a citizen of IL, in federal district ct in IL alleging that B violated federal civil rights statutes in firing her. Ann seeks to add a state law claim alleging that her firing also violated a state wrongful discharge law. Is there supplemental jurisdiction?

22 Prof. Washington Civ Pro Spr Joinder / 1367 Practice Question A, a citizen of IL, sues B, also a citizen of IL, alleging that B violated federal civil rights statutes in firing her. A seeks to add a state law claim that B caused her injuries when her car backed into As in the company parking lot after the termination. Is there supplemental jurisdiction? A, a citizen of IL, sues B, also a citizen of IL, alleging that B violated federal civil rights statutes in firing her. A seeks to add a state law claim that B caused her injuries when her car backed into As in the company parking lot after the termination. Is there supplemental jurisdiction?

23 Prof. Washington Civ Pro Spr Joinder / 1367 Practice Question A, a citizen of IL, sues B, also a citizen of IL, alleging that B violated federal civil rights statutes by permitting co-workers to engage in sexual harassment. A seeks to join C, a co-worker, who actually engaged in the harassment. State tort law is the basis of As claim vs. C. Because C is not As employer, the claim against him does not arise under federal law. Assume that the claim vs. C present sufficiently common issues to qualify for joinder under Rule 20. Is there supplemental jurisdiction over the claim vs. C? A, a citizen of IL, sues B, also a citizen of IL, alleging that B violated federal civil rights statutes by permitting co-workers to engage in sexual harassment. A seeks to join C, a co-worker, who actually engaged in the harassment. State tort law is the basis of As claim vs. C. Because C is not As employer, the claim against him does not arise under federal law. Assume that the claim vs. C present sufficiently common issues to qualify for joinder under Rule 20. Is there supplemental jurisdiction over the claim vs. C?

24 Prof. Washington Civ Pro Spr Joinder / 1367 Practice Question A, a citizen of IL, sues B, a citizen of WI, alleging breach of an employment contract and seeking a recovery in excess of $75k. A seeks to join C, a citizen of IL; A alleges that C conspired with B to breach the employment contract. Assume that the claim vs. C presently sufficiently common issues to qualify for joinder under Rule 20. Is there supplemental jurisdiction over the claim vs. C? A, a citizen of IL, sues B, a citizen of WI, alleging breach of an employment contract and seeking a recovery in excess of $75k. A seeks to join C, a citizen of IL; A alleges that C conspired with B to breach the employment contract. Assume that the claim vs. C presently sufficiently common issues to qualify for joinder under Rule 20. Is there supplemental jurisdiction over the claim vs. C?

25 Prof. Washington Civ Pro Spr Joinder Rules Claims Claims 18 Joinder of Claims (not compulsory) 18 Joinder of Claims (not compulsory) 13(a) Compulsory Counterclaims ( D vs. P) 13(a) Compulsory Counterclaims ( D vs. P) 13(b) Permissive Counterclaims (D vs. P) 13(b) Permissive Counterclaims (D vs. P) 13(g) Cross Claims (P vs. P or D vs. D) 13(g) Cross Claims (P vs. P or D vs. D) 14 Third Party Claim (Impleader) (can be brought by a P or a D) 14 Third Party Claim (Impleader) (can be brought by a P or a D) Parties Parties 19 Compulsory Joinder of Parties 19 Compulsory Joinder of Parties 20 Permissive Joinder of Parties 20 Permissive Joinder of Parties 22 Interpleader 22 Interpleader 23 Class Action 23 Class Action 24 Intervention 24 Intervention

26 Prof. Washington Civ Pro Spr USC (a) applies to original claims that fall within the scope of both 1331 and 1332 and articulates the relatedness requirement (district courts shall have supp. jurisdiction over all other claims that are so related to claims in the action w/in such original jurisdiction that they form part of the same case or controversy under Art. III... ) 1367(a) applies to original claims that fall within the scope of both 1331 and 1332 and articulates the relatedness requirement (district courts shall have supp. jurisdiction over all other claims that are so related to claims in the action w/in such original jurisdiction that they form part of the same case or controversy under Art. III... ) 1367(b) applies to a subset of original claims that fall within the scope of 1332 and informs that the district courts shall not have supplemental jurisdiction over claims by Ps against persons made parties under Rule 14, 19, 20 or or over claims by persons proposed to be joined as Ps under rule 19 or seeking to intervene as Ps under Rule when exercising supp. jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section (b) applies to a subset of original claims that fall within the scope of 1332 and informs that the district courts shall not have supplemental jurisdiction over claims by Ps against persons made parties under Rule 14, 19, 20 or or over claims by persons proposed to be joined as Ps under rule 19 or seeking to intervene as Ps under Rule when exercising supp. jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.

27 Prof. Washington Civ Pro Spr Claims which generally fall w/in ancilliary jurisdiction under 1367 compulsory ctr claims 13(a) compulsory ctr claims 13(a) cross claims 13(g) cross claims 13(g) intervention of rt under 24(a) unless the intervenor is intervening as a P in a diversity case or unless the intervenor would have been an indispensable party under 19(b) intervention of rt under 24(a) unless the intervenor is intervening as a P in a diversity case or unless the intervenor would have been an indispensable party under 19(b) impleader claims 14(a) impleader claims 14(a) 3rd party Ds claims vs. Ps under the sixth sentence of Rule 14(a) 3rd party Ds claims vs. Ps under the sixth sentence of Rule 14(a)

28 Prof. Washington Civ Pro Spr Claims which generally do not fall w/in ancilliary jurisdiction under 1367 permissive counterclaims 13(b) permissive counterclaims 13(b) permissive intervention under 24(b) unless the intervenor is a class member intervening in a class action or permissive intervention under 24(b) unless the intervenor is a class member intervening in a class action or plaintiffs claims vs. 3rd party Ds under the seventh sentence of R14(a) when the main claim rests on diversity jurisdiction plaintiffs claims vs. 3rd party Ds under the seventh sentence of R14(a) when the main claim rests on diversity jurisdiction

29 Prof. Washington Civ Pro Spr Rule 19 Compulsory Joinder of Parties Persons should be joined in an action when their absence will materially reduce the likelihood that the court can provide justice for other parties to the action or where it will be detrimental to the non-party. Persons should be joined in an action when their absence will materially reduce the likelihood that the court can provide justice for other parties to the action or where it will be detrimental to the non-party. Court will consider how joinder of the party will affect diversity in a case. If it cannot join the party w/o destroying diversity it will consider under 19(b) whether to proceed w/o the party. Court will consider how joinder of the party will affect diversity in a case. If it cannot join the party w/o destroying diversity it will consider under 19(b) whether to proceed w/o the party. Court has the discretion to determine whether to allow the action to proceed without the party or to dismiss the action where the party cannot be joined. Court has the discretion to determine whether to allow the action to proceed without the party or to dismiss the action where the party cannot be joined. Courts favor continuing the litigation. Courts favor continuing the litigation. Rule 19 objections are generally raised by the D in the form of a Rule 12(b)(7) challenge to the complaint, but they can also be raised sua sponte by the court. Rule 19 objections are generally raised by the D in the form of a Rule 12(b)(7) challenge to the complaint, but they can also be raised sua sponte by the court. Rule 41(b) provides that Rule 19 dismissals are generally without prejudice. Rule 41(b) provides that Rule 19 dismissals are generally without prejudice.

30 Prof. Washington Civ Pro Spr Rule 19 3 Step Inquiry Can complete relief be achieved in his/her absence or would relief adversely affect his/her interest in the case? 19(a) Can complete relief be achieved in his/her absence or would relief adversely affect his/her interest in the case? 19(a) Can the person be joined without subject matter, personal jurisdiction, and venue being destroyed? 19(a) Can the person be joined without subject matter, personal jurisdiction, and venue being destroyed? 19(a) If the party cannot be joined b/c of jurisdictional or venue reasons can the case be continued (and the unjoined partys interests protected) or should the ct dismiss the case? Will continuation of the case have a prejudicial effect? 19(b) If the party cannot be joined b/c of jurisdictional or venue reasons can the case be continued (and the unjoined partys interests protected) or should the ct dismiss the case? Will continuation of the case have a prejudicial effect? 19(b)

31 Prof. Washington Civ Pro Spr Rule 19 Courts favor continuing the litigation. Courts favor continuing the litigation. Rule 19 objections are generally raised by the D in the form of a Rule 12(b)(7) challenge to the complaint, but they can also be raised sua sponte by the court. Rule 19 objections are generally raised by the D in the form of a Rule 12(b)(7) challenge to the complaint, but they can also be raised sua sponte by the court. Rule 41(b) provides that Rule 19 dismissals are generally without prejudice. Rule 41(b) provides that Rule 19 dismissals are generally without prejudice.

32 Prof. Washington Civ Pro Spr Rule 19 Practice Question Buyer enters into a contract with husband and wife to purchase Blackacre. The sellers fail to convey the land at the appointed time, and Buyer sues Husband seeking a decree of specific performance. Assume that the jurisdiction in question requires the signatures of both Husband and Wife to convey ordinary clean title. Analyze the Wifes status as a party under Rule 19(a). Buyer enters into a contract with husband and wife to purchase Blackacre. The sellers fail to convey the land at the appointed time, and Buyer sues Husband seeking a decree of specific performance. Assume that the jurisdiction in question requires the signatures of both Husband and Wife to convey ordinary clean title. Analyze the Wifes status as a party under Rule 19(a).

33 Prof. Washington Civ Pro Spr Rule 19 Practice Question Consider the question on the previous slide. Suppose the court concludes that (1) Wife should be joined; but (2) the court lacks jurisdiction over her. What should the court do? Consider the question on the previous slide. Suppose the court concludes that (1) Wife should be joined; but (2) the court lacks jurisdiction over her. What should the court do?

34 Prof. Washington Civ Pro Spr Rule 19 Practice Question WY Rancher sells interest in her herd to several parties. She also borrows from a bank, using the herd as collateral. When she cant pay the loan the bank seeks to replevy the cattle. Rancher argues that joinder of all those claiming an interest in the herd is required, and that, because the presence of some of them would defeat diversity, the law suit must be dismissed. What result? WY Rancher sells interest in her herd to several parties. She also borrows from a bank, using the herd as collateral. When she cant pay the loan the bank seeks to replevy the cattle. Rancher argues that joinder of all those claiming an interest in the herd is required, and that, because the presence of some of them would defeat diversity, the law suit must be dismissed. What result?

35 Prof. Washington Civ Pro Spr Rule 19 Practice Question Larry is the income beneficiary of a spendthrift trust, and his children have the remainder of the interest. The trustee has a power to appoint the trust to Larry at any time. Larry, a California resident, sues the trustee, an Illinois resident, seeking a declaration that the trustee abused his power by not appointing the trust to him. Any problems? Larry is the income beneficiary of a spendthrift trust, and his children have the remainder of the interest. The trustee has a power to appoint the trust to Larry at any time. Larry, a California resident, sues the trustee, an Illinois resident, seeking a declaration that the trustee abused his power by not appointing the trust to him. Any problems?

36 Prof. Washington Civ Pro Spr Rule 19 Practice Question Prior to 2000, Husband was married to Wife1 and procured insurance from Insco. payable to my wife. In 2000, Husband procures a Mexican divorce and marries Wife2. After Husbands death in 2004, Wife1 brings an action against Insco claiming: a) Husband and she were never properly divorced; and b) even if she and Husband were divorced, his intention was to have the policy payable to her. Insco moves to dismiss for failure to join Wife2. What result? Prior to 2000, Husband was married to Wife1 and procured insurance from Insco. payable to my wife. In 2000, Husband procures a Mexican divorce and marries Wife2. After Husbands death in 2004, Wife1 brings an action against Insco claiming: a) Husband and she were never properly divorced; and b) even if she and Husband were divorced, his intention was to have the policy payable to her. Insco moves to dismiss for failure to join Wife2. What result?

37 Prof. Washington Civ Pro Spr Rule 24 Intervention Rule is designed to allow those not named as parties to a lawsuit but who have interests that may be affected to join the suit Rule is designed to allow those not named as parties to a lawsuit but who have interests that may be affected to join the suit When a party attempts to intervene under Rule 24, that person submits to the jurisdiction of the court. When a party attempts to intervene under Rule 24, that person submits to the jurisdiction of the court. Special rules for Subject Matter Jurisdiction Special rules for Subject Matter Jurisdiction Intervention does not implicate former adjudication (i.e., parties are not required to intervene or forfeit their right to sue on their interests in a separate law suit) Intervention does not implicate former adjudication (i.e., parties are not required to intervene or forfeit their right to sue on their interests in a separate law suit) 24(a) Intervention of Right – party must be allowed to join the litigation 24(a) Intervention of Right – party must be allowed to join the litigation 24(b) Permissive Intervention – party may join the litigation subject to the judges discretion 24(b) Permissive Intervention – party may join the litigation subject to the judges discretion

38 Prof. Washington Civ Pro Spr (a) Intervention of Right 4 Part Test for Intervention of Right under 24(a) 4 Part Test for Intervention of Right under 24(a) The intervention must be timely; intervenor may not lay in wait until the litigation is on the brink of resolution; and The intervention must be timely; intervenor may not lay in wait until the litigation is on the brink of resolution; and The intervenor must have an interest in the property / transaction that is the subject of the law suit; and The intervenor must have an interest in the property / transaction that is the subject of the law suit; and The intervenors asserted interest must be in some strong way at risk; and The intervenors asserted interest must be in some strong way at risk; and The intervenors asserted interest must not already be adequately represented by the parties to the law suit he wishes to join. The intervenors asserted interest must not already be adequately represented by the parties to the law suit he wishes to join. Prongs 2 and 3 of the test echo Rule 19(a) requirements. Prongs 2 and 3 of the test echo Rule 19(a) requirements.

39 Prof. Washington Civ Pro Spr Intervention Practice Q Assume A and B are both injured in a fireworks display held at Memorial Stadium. A sues Memorial Stadium and alleges that the stadium was negligent in handling the fireworks, and, in the alternative, that the fireworks display was an extrahazardous activity for which the stadium has absolute liability. B seeks to intervene, claiming liability on similar grounds. Assume A and B are both injured in a fireworks display held at Memorial Stadium. A sues Memorial Stadium and alleges that the stadium was negligent in handling the fireworks, and, in the alternative, that the fireworks display was an extrahazardous activity for which the stadium has absolute liability. B seeks to intervene, claiming liability on similar grounds.

40 Prof. Washington Civ Pro Spr Intervention Practice Q P sues Auto Manufacturer claiming that a defective design led to her injuries. Substantial discovery occurs, followed by a settlement agreement that includes a provision requiring that the materials uncovered by P in discovery remain confidential. 16 persons, each claiming injuries in unrelated accidents involving the same design feature, seek to intervene to challenge the protective order in the settlement. What result? P sues Auto Manufacturer claiming that a defective design led to her injuries. Substantial discovery occurs, followed by a settlement agreement that includes a provision requiring that the materials uncovered by P in discovery remain confidential. 16 persons, each claiming injuries in unrelated accidents involving the same design feature, seek to intervene to challenge the protective order in the settlement. What result?

41 Prof. Washington Civ Pro Spr. 2006Interpleader Operates to avoid duplicative litigation and inconsistent judgments Operates to avoid duplicative litigation and inconsistent judgments There is Statutory (Sect. 1335, Sect & Sect. 2361) and Rule 22 Interpleader available; the Act broadens the circumstances in which Interpleader is available There is Statutory (Sect. 1335, Sect & Sect. 2361) and Rule 22 Interpleader available; the Act broadens the circumstances in which Interpleader is available A stakeholder can require competing claimants to litigate their rights to the property at issue; can be used offensively by interpleading other parties or defensively when raised as a counterclaim A stakeholder can require competing claimants to litigate their rights to the property at issue; can be used offensively by interpleading other parties or defensively when raised as a counterclaim

42 Prof. Washington Civ Pro Spr. 2006InterpleaderIssueStatutory Rule 22 Subject Matter Jurisdiction Diversity Diversity Amt in Controversy Amt in Controversy Minimal diversity required b/t claimants Claim must be greater than $500 Complete diversity required b/t stakeholder Claim must be greater than $75,000 Personal Jurisdiction / Service of Process Venue Nationwide service of process Residence of one or more claimants Need personal jurisdiction; service under Rule 4 Residence of any claimants; where dispute arose; where property at issue is located; district where any claimant found if no other basis for venue Injunctions 28 USC Sect USC 2283

43 Prof. Washington Civ Pro Spr Interpleader Cohen v. Republic of the Philippines (p. 786) gives us an opportunity to consider the factual scenario that gives rise to interpleader and test our understanding of intervention

44 Prof. Washington Civ Pro Spr A Civil Action Assess the wisdom of the decision not to sue the City of Woburn from the Ps perspective and the Ds perspective. Assess the wisdom of the decision not to sue the City of Woburn from the Ps perspective and the Ds perspective. Assess the wisdom of the decision to implead Unifirst from the Ps perspective and the Ds perspective. Assess the wisdom of the decision to implead Unifirst from the Ps perspective and the Ds perspective. If the Ps had not joined all of the Ds in this action would subsequent claims vs. omitted Ds have been precluded? If the Ps had not joined all of the Ds in this action would subsequent claims vs. omitted Ds have been precluded? Assess the wisdom of the Judges decision to allow intervention by media outlets. Assess the wisdom of the Judges decision to allow intervention by media outlets.

45 Prof. Washington Civ Pro Spr Joinder Review Qs P (GA) is injured in a car accident, has retained an atty, and is considering suing D (FL) for her injuries to her car and her body. It just so happens that D is her landlord who has failed (in her opinion) to maintain the property she is leasing in a manner consistent with the lease. 1) Can P sue D in a GA federal court? 2) Can P join into the single law suit both the breach of contract claim and the negligence claim? 3) If P initiates a suit vs. D for both claims and the lease at issue in the breach of contract claim is signed by both D and his wife, how might he respond to the complaint? 4) D wants to assert that the accident was caused b/c P was speeding and failed to yield to on-coming traffic. How would you characterize these arguments and in what document would D present them?

46 Prof. Washington Civ Pro Spr Joinder Review Qs P has failed to pay rent for the past 3 months b/c of her dissatisfaction with the condition of the apartment she is leasing. 1) Can D initiate a claim for breach of contract as part of Ps law suit against him? 2) P passed out fliers to her neighbors referring to D as a slumlord. Can D initiate a claim for defamation vs. P as part of her law suit against him? 3) If D decides not to initiate either claim as part of Ps suit vs him will it impact his ability to do so at a later date?

47 Prof. Washington Civ Pro Spr Joinder Review Qs D entered into a contract with C (GA) to maintain all of his apartment buildings. C failed to visit the apartment building as required by the contract. 1) By what means might D bring C into the suit against him by P? 2) Could C respond to a suit by D with a claim based on the assertion that D failed to pay for Cs services pursuant to their contract? 3) If C is brought into the lawsuit could P bring a claim directly vs him?

48 Prof. Washington Civ Pro Spr Joinder Review Qs Several of Ps neighbors, equally unhappy with the condition of the apartment building in which they live, want to join the lawsuit. They are all GA citizens. 1) Can they join the law suit?

49 Prof. Washington Civ Pro Spr Joinder Review Qs P decides to add to her claims for breach of contract and negligence vs. D a claim for the return of her security deposit. P and her roommate E (FL) split the deposit (each paying half) and both P and her roommate are on the lease. P is requesting the return of the entire amount plus interest. 1) As Ds attorney what action might you suggest? 2) If D also wants to sue E for lease violations can he?


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