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

Prof. Washington Civ Pro Spr. 2006

JOINDERJOINDER

““Under the Rules, the impulse is toward Under the Rules, the impulse is toward entertaining the broadest possible scope of action entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of consistent with fairness to the parties; joinder of claims, parties and remedies is strongly claims, parties and remedies is strongly encouraged.”encouraged.”


Joinder RulesJoinder Rules

ClaimsClaims 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)

PartiesParties 19 Compulsory Joinder of Parties19 Compulsory Joinder of Parties 20 Permissive Joinder of Parties20 Permissive Joinder of Parties 22 Interpleader22 Interpleader 23 Class Action23 Class Action 24 Intervention24 Intervention


2 Step Inquiry for Adding Claims and / or Parties2 Step Inquiry for Adding Claims and / or Parties

1) Do the Rules allow the parties / claims to be 1) Do the Rules allow the parties / claims to be added (e.g., 13, 18, etc . . . )?added (e.g., 13, 18, etc . . . )?

2) Does the addition of the parties / claims 2) Does the addition of the parties / claims maintain personal or subject matter jurisdiction?maintain personal or subject matter jurisdiction?

The answer to both inquiries must be yes to allow The answer to both inquiries must be yes to allow joinder of the party / claim.joinder of the party / claim.


Rule 18 Joinder of ClaimsRule 18 Joinder of ClaimsPolicy Justifications: allows a party to resolve multiple disputes Policy Justifications: allows a party to resolve multiple disputes against the same D in one action which is cheaper than having to against the same D in one action which is cheaper than having to bring them in a separate suit.bring them in a separate suit.

There is no rule that compels joinder of claims; however, SOL There is no rule that compels joinder of claims; however, SOL and former adjudication operate to motivate plaintiffs to join and former adjudication operate to motivate plaintiffs to join several claims against a defendant.several claims against a defendant.

There is no relatedness requirement between several claims There is no relatedness requirement between several claims brought vs. a defendant.brought vs. a defendant.

A party (plaintiff or defendant) can use Rule 18 to add claims to 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 an original first party claim, to a counterclaim, to a cross-claim or a third-party claim.a third-party claim.

Rule 42(b) affords a trial court the discretion to order separate Rule 42(b) affords a trial court the discretion to order separate trials where the addition of claims renders a case unmanageable.trials where the addition of claims renders a case unmanageable.


Compulsory Ctr. Claim 13(a)Compulsory Ctr. Claim 13(a) Permissive Ctr. Claim 13(b)Permissive Ctr. Claim 13(b)

Has a relatedness requirement (claim Has a relatedness requirement (claim must arise out of the same transaction must arise out of the same transaction and occurrence)and occurrence)

Has no relatedness requirementHas no relatedness requirement

Automatically satisfies 1367 Automatically satisfies 1367 Generally does not satisfy 1367 and Generally does not satisfy 1367 and therefore requires independent SMJ therefore requires independent SMJ basis. There are some instances where a basis. There are some instances where a permissive counterclaim may satisfy the permissive counterclaim may satisfy the 1367 case and controversy requirement. 1367 case and controversy requirement.

Must be initiated or considered waived Must be initiated or considered waived and precluded by former adjudicationand precluded by former adjudication

Need not be initiated and not precluded Need not be initiated and not precluded by former adjudicationby former adjudication

Pleaded in the answer to the complaint Pleaded in the answer to the complaint or in a reply to a previously asserted or in a reply to a previously asserted counterclaimcounterclaim

Pleaded in the answer to the complaint Pleaded in the answer to the complaint or in a reply to a previously asserted or in a reply to a previously asserted counterclaimcounterclaim


Plant v. BlazerPlant v. Blazer4 Part O & T Test for Ctr. Claims4 Part O & T Test for Ctr. Claims

1)1) Similarity of factual and legal issues b/t P’s claim and Similarity of factual and legal issues b/t P’s claim and D’s counterclaimD’s counterclaim

2)2) Would res judicata bar a subsequent suit on the claim Would res judicata bar a subsequent suit on the claim (i.e., would a subsequent law suit raising the claim be (i.e., would a subsequent law suit raising the claim be precluded b/c claim should have been brought as precluded b/c claim should have been brought as compulsory counterclaim) compulsory counterclaim)

3)3) Similarity of evidence necessary to prove P’s claim and Similarity of evidence necessary to prove P’s claim and D’s counterclaimD’s counterclaim

4)4) Logical relationship b/t the P’s claim and the D’s Logical relationship b/t the P’s claim and the D’s counterclaim ( i.e., does the counterclaim arise from counterclaim ( i.e., does the counterclaim arise from the same aggregate core of operative facts)the same aggregate core of operative facts)


The Process of Asserting and The Process of Asserting and Challenging a CounterclaimChallenging a Counterclaim

P sues D (note that a x-claim D or a third party D P sues D (note that a x-claim D or a third party D can also assert counterclaims)can also assert counterclaims)

D raises a counterclaim under 13(a) asserting no D raises a counterclaim under 13(a) asserting no independent basis for SMJindependent basis for SMJ

P moves to dismiss the counterclaim for lack of P moves to dismiss the counterclaim for lack of SMJ under 12(b)(1) essentially arguing that the SMJ under 12(b)(1) essentially arguing that the counterclaim is permissive in charactercounterclaim is permissive in character

D contends that the counterclaim is compulsory D contends that the counterclaim is compulsory and therefore satisfies 1367and therefore satisfies 1367


Tricky, Tricky, Tricky!Tricky, Tricky, Tricky!Great Lakes v. Herbert Cooper (Note 6 p. 740)Great Lakes v. Herbert Cooper (Note 6 p. 740)

GL sues HC for state law claimsGL sues HC for state law claims HC retaliates bringing an antitrust counterclaim HC retaliates bringing an antitrust counterclaim

asserting unjustified lawsuitsasserting unjustified lawsuits GL’s claims are dismissed pursuant to 12(b)(1)GL’s 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 GL reinitiates its state law claim in the form of a

counterclaimcounterclaim Ct rules that GL’s counterclaim is compulsory in Ct rules that GL’s counterclaim is compulsory in

nature and therefore satisfies 1367nature and therefore satisfies 1367


Practice QuestionPractice Question

In 2003, B purchased a house from S and In 2003, B purchased a house from S and gave a promissory note for $50K, payable gave a promissory note for $50K, payable on January 2, 2004, for the unpaid balance on January 2, 2004, for the unpaid balance of the purchase price. In 2003 alleging of the purchase price. In 2003 alleging numerous defects in the house, B sued S for numerous defects in the house, B sued S for breach of contract and breach of warranty. breach of contract and breach of warranty. Is S’s claim on the unpaid promissory note Is S’s claim on the unpaid promissory note a compulsory counterclaim?a compulsory counterclaim?


Practice QuestionPractice Question P sues automobile Dealer and Manufacturer. The P sues automobile Dealer and Manufacturer. The

complaint, which is properly before the court complaint, which is properly before the court under 1332, alleges that P was injured in an under 1332, alleges that P was injured in an accident caused by a defect in the vehicle’s accident caused by a defect in the vehicle’s steering mechanism.steering mechanism.

Manu. wants to assert that the vehicle was not Manu. wants to assert that the vehicle was not defective when delivered to Dealer and that any defective when delivered to Dealer and that any defect must have been introduced by Dealer when defect must have been introduced by Dealer when the vehicle was being prepared for delivery to the the vehicle was being prepared for delivery to the customer. What pleading, if any, should Manu. customer. What pleading, if any, should Manu. File?File?



P sues automobile Dealer and Manufacturer. The P sues automobile Dealer and Manufacturer. The complaint, which is properly before the court complaint, which is properly before the court under 1332, alleges that P was injured in an under 1332, alleges that P was injured in an accident caused by a defect in the vehicle’s accident caused by a defect in the vehicle’s steering mechanism.steering mechanism.

Manufacturer wants to assert that Dealer has Manufacturer wants to assert that Dealer has failed to pay it for several vehicles it delivered to failed to pay it for several vehicles it delivered to Dealer (not including the vehicle at issue in the Dealer (not including the vehicle at issue in the action). Can it do so? What pleading, if any, action). Can it do so? What pleading, if any, should Manufacturer file?should Manufacturer file?



P sues automobile Dealer and Manufacturer. The P sues automobile Dealer and Manufacturer. The complaint, which is properly before the court under complaint, which is properly before the court under 1332, alleges that P was injured in an accident caused by 1332, alleges that P was injured in an accident caused by a defect in the vehicle’s steering mechanism.a defect in the vehicle’s steering mechanism.

Dealer wants to assert that P owes Dealer money for Dealer wants to assert that P owes Dealer money for breach of contract that has no relationship whatsoever breach of contract that has no relationship whatsoever to the vehicle or accident at issue in the P’s complaint. to the vehicle or accident at issue in the P’s complaint. The Dealer claims damages in the amount of $75K. Can The Dealer claims damages in the amount of $75K. Can Dealer do so? What pleading, if any, should it use? Dealer do so? What pleading, if any, should it use? What, if any, response should Dealer anticipate from P?What, if any, response should Dealer anticipate from P?



P sues automobile Dealer and Manufacturer. The P sues automobile Dealer and Manufacturer. The complaint, which is properly before the court complaint, which is properly before the court under 1332, alleges that P was injured in an under 1332, alleges that P was injured in an accident caused by a defect in the vehicle’s accident caused by a defect in the vehicle’s steering mechanism.steering mechanism.

Dealer and Manufacturer both want to assert that Dealer and Manufacturer both want to assert that there was no defect in the vehicle and that the there was no defect in the vehicle and that the accident was solely the result of the P’s negligence. accident was solely the result of the P’s negligence. What pleading, if any, should Dealer and What pleading, if any, should Dealer and Manufacturer use?Manufacturer use?


Rule 20Rule 20Permissive Joinder of PartiesPermissive Joinder of Parties

Policy Justification: to promote trial convenience and expedite the Policy Justification: to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuitsfinal determination of disputes, thereby preventing multiple lawsuits

Parties who join pursuant to this rule must be interested in claims Parties who join pursuant to this rule must be interested in claims that arise out of the same O & T or series of O & T’s, and share in that arise out of the same O & T or series of O & T’s, and share in common at least one question of law or fact. common at least one question of law or fact.

Generally does satisfy 1367 and therefore does not require Generally does satisfy 1367 and therefore does not require independent SMJ basis, but there are instances where a Rule 20 independent SMJ basis, but there are instances where a Rule 20 party is not considered to automatically satisfy 1367.party is not considered to automatically satisfy 1367.

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.


Rule 19Rule 19Compulsory Joinder of PartiesCompulsory Joinder of Parties

Persons should be joined in an action when their absence will Persons should be joined in an action when their absence will materially reduce the likelihood that the court can provide materially reduce the likelihood that the court can provide justice for other parties to the action or where it will be justice for other parties to the action or where it will be detrimental to the non-party. detrimental to the non-party.

Court will consider how joinder of the party will affect Court will consider how joinder of the party will affect diversity in a case. If it cannot join the party w/o destroying 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 diversity it will consider under 19(b) whether to proceed w/o the party.the party.

Court has the discretion to determine whether to allow the Court has the discretion to determine whether to allow the action to proceed without the party or to dismiss the action action to proceed without the party or to dismiss the action where the party cannot be joined.where the party cannot be joined.


Rule 14Rule 14 ImpleaderImpleaderPolicy Justifications: efficiency, cost effective, prevents conflicting Policy Justifications: efficiency, cost effective, prevents conflicting outcomes by binding impleaded party to the findings in the original caseoutcomes 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 Must be filed within 10 days of the filing of the original answer. If not leave of court is required. of court is required.

Only persons not already parties may be impleaded (compare to x-claims Only persons not already parties may be impleaded (compare to x-claims and ctr-claims).and ctr-claims).

Under rule 14 the theory of liability is not “it was him not me” that is liable 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 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.”me for all or part of my liability to the P.”

Third party D’s can assert x-claims, ctr claims, and their own third party Third party D’s can assert x-claims, ctr claims, and their own third party claims.claims.

Third party D’s can also bring a Third party D’s can also bring a permissive permissive claim vs. the first party P; claim vs. the first party P; however, the claim must arise out of the same O&T that gives rise to P’s however, the claim must arise out of the same O&T that gives rise to P’s original claim.original claim.


Intersection between Rule 14Intersection between Rule 14 Impleader & JurisdictionImpleader & Jurisdiction

Subject Matter Jurisdiction: Generally Rule 14 claims Subject Matter Jurisdiction: Generally Rule 14 claims automatically qualify for 1367 jurisdiction; however, when the automatically qualify for 1367 jurisdiction; however, when the P is asserting the third party claim and the jurisdictional basis P is asserting the third party claim and the jurisdictional basis for the original claim is 1332, 1367(b) prohibits the invocation for the original claim is 1332, 1367(b) prohibits the invocation of supplemental jurisdiction to satisfy subject matter of supplemental jurisdiction to satisfy subject matter jurisdiction. jurisdiction.

Personal Jurisdiction: Personal jurisdiction over a third party Personal Jurisdiction: Personal jurisdiction over a third party D will usually be easy to establish b/c the D will have been D will usually be easy to establish b/c the D will have been substantively involved in the underlying claim in satisfaction of substantively involved in the underlying claim in satisfaction of Shoe requirements. If not Rule 4(k)(b)(1) allows an extra 100 Shoe requirements. If not Rule 4(k)(b)(1) allows an extra 100 mile boost to the Ct’s jurisdiction which can bring some 3rd mile boost to the Ct’s jurisdiction which can bring some 3rd party D’s w/in the Ct’s jurisdiction who would otherwise be party D’s w/in the Ct’s jurisdiction who would otherwise be without it.without it.


3 Step Inquiry w/re: to Rule 14 3 Step Inquiry w/re: to Rule 14 1) Does the applicable substantive law afford a basis 1) Does the applicable substantive law afford a basis

for a derivative liability action (e.g., for a derivative liability action (e.g., indemnification / contribution)?indemnification / contribution)?

2) Does Rule 14 permit the third party to be joined 2) Does Rule 14 permit the third party to be joined in the litigation?in the litigation?

3) Are subject matter / personal jurisdiction 3) Are subject matter / personal jurisdiction satisfied?satisfied?

The answer to all 3 inquiries must be yes to implead The answer to all 3 inquiries must be yes to implead the party.the party.


Impleader Practice QuestionImpleader Practice Question

A sues B for assualt, in a claim A sues B for assualt, in a claim arising out of a scuffle while both arising out of a scuffle while both were waiting in line to enter a were waiting in line to enter a nightclub. B seeks to implead C, nightclub. B seeks to implead C, contending that A has mistaken the contending that A has mistaken the identity of his assailant, and that C, identity of his assailant, and that C, not B, was the person who struck A. not B, was the person who struck A. Can A object to B’s impleader of B?Can A object to B’s impleader of B?


Impleader Practice QuestionImpleader Practice Question

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


Joinder / 1367 Practice QuestionJoinder / 1367 Practice Question

Ann, a citizen of IL, sues B, a citizen of IL, Ann, a citizen of IL, sues B, a citizen of IL, in federal district ct in IL alleging that B in federal district ct in IL alleging that B violated federal civil rights statutes in firing violated federal civil rights statutes in firing her. Ann seeks to add a state law claim her. Ann seeks to add a state law claim alleging that her firing also violated a state alleging that her firing also violated a state wrongful discharge law. Is there wrongful discharge law. Is there supplemental jurisdiction?supplemental jurisdiction?



A, a citizen of IL, sues B, also a citizen of A, a citizen of IL, sues B, also a citizen of IL, alleging that B violated federal civil IL, alleging that B violated federal civil rights statutes in firing her. A seeks to add rights statutes in firing her. A seeks to add a state law claim that B caused her injuries a state law claim that B caused her injuries when her car backed into A’s in the when her car backed into A’s in the company parking lot after the termination. company parking lot after the termination. Is there supplemental jurisdiction?Is there supplemental jurisdiction?



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



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


Joinder RulesJoinder Rules

ClaimsClaims 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)

PartiesParties 19 Compulsory Joinder of Parties19 Compulsory Joinder of Parties 20 Permissive Joinder of Parties20 Permissive Joinder of Parties 22 Interpleader22 Interpleader 23 Class Action23 Class Action 24 Intervention24 Intervention


28 USC 136728 USC 1367 1367(a) applies to original claims that fall within the scope of 1367(a) applies to original claims that fall within the scope of

both 1331 and 1332 and articulates the relatedness both 1331 and 1332 and articulates the relatedness requirement (“district courts shall have supp. jurisdiction requirement (“district courts shall have supp. jurisdiction over all other claims that are so related to claims in the over all other claims that are so related to claims in the action w/in such original jurisdiction that they form part of action w/in such original jurisdiction that they form part of the the same case or controversysame case or controversy under Art. III . . . “) under Art. III . . . “)

1367(b) applies to a subset of original claims that fall within 1367(b) applies to a subset of original claims that fall within the scope of 1332 and informs that “the district courts shall the scope of 1332 and informs that “the district courts shall not have supplemental jurisdiction over claims not have supplemental jurisdiction over claims by P’sby P’s against against persons made parties under persons made parties under Rule 14, 19, 20 or 24 . . .Rule 14, 19, 20 or 24 . . . or over or over claims by persons proposed to be joined as P’s under rule 19 claims by persons proposed to be joined as P’s under rule 19 or seeking to intervene as P’s under Rule 24 . . . when or seeking to intervene as P’s under Rule 24 . . . when exercising supp. jurisdiction over such claims would be exercising supp. jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section inconsistent with the jurisdictional requirements of section 1332.”1332.”


Claims which generally fall w/in ancilliary Claims which generally fall w/in ancilliary jurisdiction under 1367jurisdiction 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 intervention of rt under 24(a) unless the

intervenor is intervening as a P in a diversity case intervenor is intervening as a P in a diversity case or unless the intervenor would have been an or unless the intervenor would have been an indispensable party under 19(b)indispensable party under 19(b)

impleader claims 14(a)impleader claims 14(a) 3rd party D’s claims vs. P’s under the sixth 3rd party D’s claims vs. P’s under the sixth

sentence of Rule 14(a)sentence of Rule 14(a)


Claims which generally do not fall w/in Claims which generally do not fall w/in ancilliary jurisdiction under 1367ancilliary jurisdiction under 1367

permissive counterclaims 13(b)permissive counterclaims 13(b)

permissive intervention under 24(b) unless permissive intervention under 24(b) unless the intervenor is a class member the intervenor is a class member intervening in a class action orintervening in a class action or

plaintiff’s claims vs. 3rd party D’s under plaintiff’s claims vs. 3rd party D’s under the seventh sentence of R14(a) when the the seventh sentence of R14(a) when the main claim rests on diversity jurisdictionmain claim rests on diversity jurisdiction


Rule 19 Compulsory Joinder of PartiesRule 19 Compulsory Joinder of Parties

Persons should be joined in an action when their absence will materially reduce 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 the likelihood that the court can provide justice for other parties to the action or where it will be detrimental to the non-party. 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 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) cannot join the party w/o destroying diversity it will consider under 19(b) whether to proceed w/o the party.whether to proceed w/o the party.

Court has the discretion to determine whether to allow the action to proceed 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.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) 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.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.


Rule 19 3 Step Inquiry Rule 19 3 Step Inquiry Can complete relief be achieved in his/her Can complete relief be achieved in his/her

absence or would relief adversely affect his/her absence or would relief adversely affect his/her interest in the case? 19(a) interest in the case? 19(a)

Can the person be joined without subject matter, Can the person be joined without subject matter, personal jurisdiction, and venue being personal jurisdiction, and venue being destroyed? 19(a)destroyed? 19(a)

If the party cannot be joined b/c of jurisdictional If the party cannot be joined b/c of jurisdictional or venue reasons can the case be continued (and or venue reasons can the case be continued (and the unjoined party’s interests protected) or the unjoined party’s interests protected) or should the ct dismiss the case? Will continuation should the ct dismiss the case? Will continuation of the case have a prejudicial effect? 19(b)of the case have a prejudicial effect? 19(b)


Rule 19Rule 19

Courts favor continuing the litigation.Courts favor continuing the litigation.

Rule 19 objections are generally raised by the D in Rule 19 objections are generally raised by the D in the form of a Rule 12(b)(7) challenge to the the form of a Rule 12(b)(7) challenge to the complaint, but they can also be raised sua sponte by complaint, but they can also be raised sua sponte by the court.the court.

Rule 41(b) provides that Rule 19 dismissals are Rule 41(b) provides that Rule 19 dismissals are generally without prejudice.generally without prejudice.


Rule 19 Practice QuestionRule 19 Practice Question

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



Consider the question on the previous slide. Consider the question on the previous slide. Suppose the court concludes that (1) Wife Suppose the court concludes that (1) Wife should be joined; but (2) the court lacks should be joined; but (2) the court lacks jurisdiction over her. What should the jurisdiction over her. What should the court do? court do?



WY Rancher sells interest in her herd to WY Rancher sells interest in her herd to several parties. She also borrows from several parties. She also borrows from a bank, using the herd as collateral. a bank, using the herd as collateral. When she can’t pay the loan the bank When she can’t pay the loan the bank seeks to replevy the cattle. Rancher seeks to replevy the cattle. Rancher argues that joinder of all those claiming argues that joinder of all those claiming an interest in the herd is required, and an interest in the herd is required, and that, because the presence of some of that, because the presence of some of them would defeat diversity, the law them would defeat diversity, the law suit must be dismissed. What result?suit must be dismissed. What result?



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



Prior to 2000, Husband was married to Wife1 Prior to 2000, Husband was married to Wife1 and procured insurance from Insco. payable and procured insurance from Insco. payable to “my wife.” In 2000, Husband procures a to “my wife.” In 2000, Husband procures a Mexican divorce and marries Wife2. After Mexican divorce and marries Wife2. After Husband’s death in 2004, Wife1 brings an Husband’s death in 2004, Wife1 brings an action against Insco claiming: a) Husband action against Insco claiming: a) Husband and she were never properly divorced; and and she were never properly divorced; and b) even if she and Husband were divorced, b) even if she and Husband were divorced, his intention was to have the policy payable his intention was to have the policy payable to her. Insco moves to dismiss for failure to to her. Insco moves to dismiss for failure to join Wife2. What result?join Wife2. What result?


Rule 24 InterventionRule 24 Intervention Rule is designed to allow those not named as parties to a Rule is designed to allow those not named as parties to a

lawsuit but who have interests that may be affected to join lawsuit but who have interests that may be affected to join the suitthe suit

When a party attempts to intervene under Rule 24, that When a party attempts to intervene under Rule 24, that person submits to the jurisdiction of the court.person submits to the jurisdiction of the court.

Special rules for Subject Matter JurisdictionSpecial rules for Subject Matter Jurisdiction

Intervention does not implicate former adjudication (i.e., Intervention does not implicate former adjudication (i.e., parties are not required to intervene or forfeit their right to parties are not required to intervene or forfeit their right to sue on their interests in a separate law suit)sue on their interests in a separate law suit)

24(a) Intervention of Right – party 24(a) Intervention of Right – party mustmust be allowed to join be allowed to join the litigationthe litigation

24(b) Permissive Intervention – party 24(b) Permissive Intervention – party maymay join the litigation join the litigation subject to the judges discretionsubject to the judges discretion


24(a) Intervention of Right24(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 The intervention must be timely; intervenor may not “lay in wait” until the litigation is on the brink of “lay in wait” until the litigation is on the brink of resolution; andresolution; and

The intervenor must have an “interest” in the property / The intervenor must have an “interest” in the property / transaction that is the subject of the law suit; andtransaction that is the subject of the law suit; and

The intervenor’s asserted interest must be in some The intervenor’s asserted interest must be in some strong way at risk; andstrong way at risk; and

The intervenor’s asserted interest must not already be The intervenor’s asserted interest must not already be adequately represented by the parties to the law suit he adequately represented by the parties to the law suit he wishes to join.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.


Intervention Practice QIntervention Practice Q

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


Intervention Practice QIntervention Practice Q

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


InterpleaderInterpleader

Operates to avoid duplicative litigation and Operates to avoid duplicative litigation and inconsistent judgmentsinconsistent judgments

There is Statutory (Sect. 1335, Sect. 1397 & Sect. There is Statutory (Sect. 1335, Sect. 1397 & Sect. 2361) and Rule 22 Interpleader available; the Act 2361) and Rule 22 Interpleader available; the Act broadens the circumstances in which Interpleader broadens the circumstances in which Interpleader is availableis available

A stakeholder can require competing claimants to A stakeholder can require competing claimants to litigate their rights to the property at issue; can be litigate their rights to the property at issue; can be used offensively by interpleading other parties or used offensively by interpleading other parties or defensively when raised as a counterclaimdefensively when raised as a counterclaim


InterpleaderInterpleaderIssueIssue StatutoryStatutory Rule 22Rule 22

Subject Matter Jurisdiction Subject Matter Jurisdiction

DiversityDiversity

Amt in ControversyAmt in Controversy

Minimal diversity required b/t Minimal diversity required b/t claimantsclaimants

Claim must be greater than Claim must be greater than $500$500

Complete diversity required Complete diversity required b/t stakeholderb/t stakeholder

Claim must be greater than Claim must be greater than $75,000$75,000

Personal Jurisdiction / Service Personal Jurisdiction / Service of Processof Process

VenueVenue

Nationwide service of processNationwide service of process

Residence of one or more Residence of one or more claimantsclaimants

Need personal jurisdiction; Need personal jurisdiction; service under Rule 4service under Rule 4

Residence of any claimants; Residence of any claimants; where dispute arose; where where dispute arose; where property at issue is located; property at issue is located; district where any claimant district where any claimant found if no other basis for found if no other basis for venuevenue

InjunctionsInjunctions 28 USC Sect. 236128 USC Sect. 2361 28 USC 228328 USC 2283


InterpleaderInterpleader

Cohen v. Republic of the PhilippinesCohen v. Republic of the Philippines

(p. 786) gives us an opportunity to consider (p. 786) gives us an opportunity to consider the factual scenario that gives rise to the factual scenario that gives rise to interpleader and test our understanding of interpleader and test our understanding of interventionintervention


A Civil ActionA Civil Action

Assess the wisdom of the decision not to sue the Assess the wisdom of the decision not to sue the City of Woburn from the P’s perspective and the City of Woburn from the P’s perspective and the D’s perspective.D’s perspective.

Assess the wisdom of the decision to implead Assess the wisdom of the decision to implead Unifirst from the P’s perspective and the D’s Unifirst from the P’s perspective and the D’s perspective.perspective.

If the P’s had not joined all of the D’s in this If the P’s had not joined all of the D’s in this action would subsequent claims vs. omitted D’s action would subsequent claims vs. omitted D’s have been precluded?have been precluded?

Assess the wisdom of the Judge’s decision to Assess the wisdom of the Judge’s decision to allow intervention by media outlets. allow intervention by media outlets.


Joinder Review Q’sJoinder Review Q’sP (GA) is injured in a car accident, has retained an P (GA) is injured in a car accident, has retained an atty, and is considering suing D (FL) for her injuries to atty, and is considering suing D (FL) for her injuries to her car and her body. It just so happens that D is her her car and her body. It just so happens that D is her landlord who has failed (in her opinion) to maintain the landlord who has failed (in her opinion) to maintain the property she is leasing in a manner consistent with the property she is leasing in a manner consistent with the lease.lease.

1)1) Can P sue D in a GA federal court? Can P sue D in a GA federal court? 2)2) Can P join into the single law suit both the breach of Can P join into the single law suit both the breach of

contract claim and the negligence claim? contract claim and the negligence claim? 3)3) If P initiates a suit vs. D for both claims and the lease If P initiates a suit vs. D for both claims and the lease

at issue in the breach of contract claim is signed by at issue in the breach of contract claim is signed by both D and his wife, how might he respond to the both D and his wife, how might he respond to the complaint?complaint?

4)4) D wants to assert that the accident was caused b/c P D wants to assert that the accident was caused b/c P was speeding and failed to yield to on-coming traffic. was speeding and failed to yield to on-coming traffic. How would you characterize these arguments and in How would you characterize these arguments and in what document would D present them?what document would D present them?


Joinder Review Q’sJoinder Review Q’s

P has failed to pay rent for the past 3 months b/c P has failed to pay rent for the past 3 months b/c of her dissatisfaction with the condition of the of her dissatisfaction with the condition of the apartment she is leasing. apartment she is leasing.

1) Can D initiate a claim for breach of contract as 1) Can D initiate a claim for breach of contract as part of P’s law suit against him?part of P’s law suit against him?

2) P passed out fliers to her neighbors referring to 2) P passed out fliers to her neighbors referring to D as a “slumlord.” Can D initiate a claim for D as a “slumlord.” Can D initiate a claim for defamation vs. P as part of her law suit against defamation vs. P as part of her law suit against him? him?

3) If D decides not to initiate either claim as part 3) If D decides not to initiate either claim as part of P’s suit vs him will it impact his ability to do so of P’s suit vs him will it impact his ability to do so at a later date?at a later date?


Joinder Review Q’sJoinder Review Q’sD entered into a contract with C (GA) to D entered into a contract with C (GA) to maintain all of his apartment buildings. C maintain all of his apartment buildings. C failed to visit the apartment building as failed to visit the apartment building as required by the contract.required by the contract.

1)1) By what means might D bring C into the suit By what means might D bring C into the suit against him by P?against him by P?

2)2) Could C respond to a suit by D with a claim Could C respond to a suit by D with a claim based on the assertion that D failed to pay for based on the assertion that D failed to pay for C’s services pursuant to their contract?C’s services pursuant to their contract?

3)3) If C is brought into the lawsuit could P bring a If C is brought into the lawsuit could P bring a claim directly vs him?claim directly vs him?


Joinder Review Q’sJoinder Review Q’s

Several of P’s neighbors, equally unhappy Several of P’s neighbors, equally unhappy with the condition of the apartment with the condition of the apartment building in which they live, want to join building in which they live, want to join the lawsuit. They are all GA citizens.the lawsuit. They are all GA citizens.

1) Can they join the law suit?1) Can they join the law suit?


Joinder Review Q’sJoinder Review Q’sP decides to add to her claims for breach P decides to add to her claims for breach of contract and negligence vs. D a claim of contract and negligence vs. D a claim for the return of her security deposit. P for the return of her security deposit. P and her roommate E (FL) split the deposit and her roommate E (FL) split the deposit (each paying half) and both P and her (each paying half) and both P and her roommate are on the lease. P is roommate are on the lease. P is requesting the return of the entire requesting the return of the entire amount plus interest.amount plus interest.

1)1) As D’s attorney what action might you As D’s attorney what action might you suggest?suggest?

2)2) If D also wants to sue E for lease If D also wants to sue E for lease violations can he?violations can he?

Documents

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