#17635 - Joinder Attack Plan - Civil Procedure II - Joinder Attack Plan

TOPICAL OUTLINE FOR JOINDER

STEPS FOR JOINDER

1. Step 1: Do we really want the joinder? (Strategic)

   1. Yes, I want to bring more into my lawsuit

   2. Why?

2. Step 2: Is the joinder proper under the procedure rules?

   1. Joinder by Claimants – Rule 18 (Claimant)

      1. Rule 20 – Permissive Party Joinder (Claimant)

   2. Joinder by Defending Parties (Δ)

      1. Rule 13 – Counterclaims and Crossclaims (Δ)

      2. Rule 14 – Impleader (Δ)

      3. Rule 22 – Interpleader (Δ)

      4. Rule 19 – Required Parties (Δ)

   3. Joinder by Non-Parties (3^rd Party)

      1. Rule 24 – Intervention (3^rd Party)

   4. Special Joinders ()

      1. 28 U.S.C. §1407 – Multidistrict Litigation ()

      2. Rule 23 – Class Actions ()

3. Step 3: Is personal jurisdiction & venue proper for the joinder?

   1. PJ

   2. Venue

   3. PJ in Class Action

   4. 100-Mile Bulge Rule

4. Step 4: Is subject matter jurisdiction proper?

   1. Federal Question

   2. Diversity

   3. Any other 9 heads:

      1. Ambassadors

      2. Admiralty

      3. U.S. being a party

      4. State v. Citizen of another state

      5. State v. State

      6. Citizens of the same state claiming lands

   4. If none apply: Supplemental Jurisdiction

      1. 28 U.S.C. §1367

   5. SMJ in Class Actions

STEP 1 – DO WE WANT JOINDER?

1. Yes, I want to bring more into my lawsuit

2. Why Joinder? (POLICY)

   1. Lower the costs of resolution;

   2. More efficient use of the court system;

   3. Better “story” at trial;

   4. Avoid inconsistent outcomes; obtain the best “preclusion” effects.

STEP 2 – JOINDER RULES (MUST SATISFY 1)

1. JOINDER BY CLAIMANTS – RULE 18 (Claimant)

   1. Rule 18(a) - A party asserting a claim [whether an original claim, a counterclaim, a crossclaim, or a third-party claim] may join, as independent or alternative claims, as many claims as it has against an opposing party.

      1. Very broad! – Claim joinder is not limited to factually, legally, or transactional related claims.

         1. If the plaintiff is suing the defendant, he can bring any claim he has against her

      2. Contingent claims: Claims may be joined, even if one of them is contingent on the disposition of the other. But, if contingent, relief may only be granted if contingency first occurs.

         1. If claim 1 loses, then claim 2 cannot bring their claim

         2. If claim 1 wins, then claim 2 is automatically brought.

         3. Claim 2 suit is contingent on claim 1 outcome

1. Rule 20 – Permissive Party Joinder (Claimant)

   1. Who can be joined as Fellow Plaintiffs or New Defendants:

      1. Anyone who –

         1. Asserts any right to relief Jointly, Severally, or In The Alternative, so long as…

            1. Joint = together

               1. Damage to all Ps by roof loss

            2. Severally = Separated

               1. Damage to each P’s practice

            3. In the Alternative*** = we’re not sure who has it but they alternatively would

               1. Dispute among P ownership

               2. Judge has to resolve who gets the money

         2. It is Transactionally Related: With respect to, or arising out of, the same transaction, occurrence, or series of transactions or occurrences, so long as…

         3. There’s a Common Question: Any question of law or fact is common to all will arise in the action.

   2. “Partial” Parties:

      1. A plaintiff or defendant need not be interested in obtaining, or defending against, all the relief demanded—

         1. Instead, the judgment may be segregated out:

            1. For one or more Plaintiffs, according to their respective rights to relief

            2. Against one or more Defendants, according to their respective liabilities.

   3. Rule 20(b): PROTECTIVE MEASURES

      1. Goal: To prevent litigants from embarrassment, delay, or expense from INCLUSION of other parties…

      2. Remedy: Court may order separate trials or make such other orders.

2. JOINDER BY DEFENDING PARTIES (Δ)

1. Rule 13 – Counterclaims and Crossclaims (Δ)

   1. 13(a) – Compulsory Counterclaim

      1. A counterclaim that MUST be brought now, as counterclaims, or the right to relief on those claims is forever lost.

      2. CC is Compulsory if:

         1. It existed at the time the original pleading was served, and…

         2. It arises from the same “transaction or occurrence” that is the subject matter of the opponent’s claim, and…

         3. None of these 3 exceptions apply:

            1. Requires an inaccessible joinder,

            2. Claim is already pending elsewhere,

               1. If in another court you do not need to add it in this lawsuit

            3. Opponent’s claim is in rem (not In Personam) and no other CC is made.

   2. 13(b) – Permissive Counterclaim

      1. A counterclaim that MAY – at the claimant’s option – be brought as counterclaims, or may be brought later in a different lawsuit.

      2. CC is Permissive if:

         1. It is not compulsory

            1. For example, the Counterclaim:

               1. Did not exist at the time of original service

               2. Does not arise out of same “transaction or occurrence”

               3. One or more of the 3 exceptions applies

      3. Every counterclaim is allowed because every counterclaim is Permissive unless it is Compulsory

   3. 13(g) – Crossclaims:

      1. Asserted only against co-parties,

      2. And must either:

         1. Arise out of the transaction or occurrence that is the subject matter of the original action (or existing CC, if one is filed), or

         2. Relate to any property that is the subject matter of the original action

2. Rule 14(a) – Impleader – (IM: It’s Moving) (Δ)

   1. Requirements

      1. A defending party may add a new party to plaintiff’s lawsuit through third-party practice (impleader), so long as the new party:

         1. “is or may be” liable to the defending party…

            1. “is or may be liable”:

               1. includes accrued and contingent (i.e., those recoverable only if some contingency first occurs) claims.

               2. Impleader can only be used in practice if the Defending party is found liable; Meaning every Impleader is a contingency impleader.

         2. “for all or part” of the plaintiff’s claims against the defending party.

            1. “For all or part”:

               1. Contribution: one co-negligent party seeks reimbursement from other co-negligent parties, if it pays more than its share. (partial shift)

               2. Indemnity: a party who is not primarily responsible (but still legally liable) seeks reimbursement from those who are factually responsible. (full shift)

         3. (3) “to the defending party”/ “of the plaintiff’s claims”:

            1. This must be a “claim-over” = a claim that REIMBURSES the “defending party” for monies paid (or payable) to the plaintiff.

   2. Allowed to file:

      1. Within 14 Days after service of the original answer:

         1. Unilaterally (no motion or court approval required)

      2. More Than 14 Days after service of the original answer:

         1. Order Required (court must approve on motion, with notice to all)

   3. Procedure:

      1. Pleading & Service: Defending party serves new party (“third-party” or “impleaded party” with new summons + complaint.

      2. Response: Third-Party responds like any other defending party (e.g., Rule 12 motion, answer, counterclaims/crossclaims, etc.)

         1. And May Include: defenses to original P’s claim/theory

   4. There will always be a PJ to conduct because the P did not already do it (b/c this is a new party) (“Step 3” of joinder).

   5. Who else can Implead? (ALWAYS LOOK AT THE “v.’s”)

      1. (1) The Original Defendant – Rule 14(a)(1)

      2. (2) The Impleaded Third-Party Defendant – Rule 14(a)(2)

      3. (3) The Original Plaintiff – Rule 14(a)(5): can implead a party if the plaintiff is being sued through counter claim.

      4. 1367(a) is always satisfied in an impleader because the base claim is the same

         1. We cannot allow the plaintiff to bring a party if they have to use supplemental jurisdiction and their claim was based solely on Diversity because Green (Rule 14) does not allow it.

   6. POLICY: WHY ALLOW THIS?

      1. Fairness to the defending litigants, efficiency, and judicial economy.

   7. “Sloping” Claims:

      1. “Upward Sloping Rule 14(a) Claims”:

         1. Claims Against TPD by Plaintiff: Rule 14(a)(3)

            1. Requirement:

               1. P’s claims against TPD must arise out of the same transaction or occurrence as P’s original claim.

            2. Upward sloping claims, against a TPD, that use supplemental jurisdiction based solely in a Diversity, do not satisfy Green.

      2. “Downward-Sloping Rule 14(a) Claims”:

         1. Claims By TPD against Plaintiff: Rule 14(a)(2)(D)

            1. Requirement:

               1. TPD’s claims against P must arise out of the same transaction or occurrence as P’s original claim.

            2. Downward sloping claims, by a Third-Party Defendant, that use supplemental jurisdiction based solely in Diversity, satisfy Green and Blue.

3. Rule 22 – Interpleader (2 types) – (We are IN this together) (Δ)

   1. (1) “Rule” Interpleader – Rule 22

      1. Requirements: (Rule for joinder)

         1. Applies where: Stakeholder is exposed to double or multiple liability;

      2. Court Deposit:

         1. Court may, in its discretion, order the stake to be deposited into court

      3. Service of Process: (PJ) (Step 3)

         1. Regular service procedures,

            1. Rule 4 – Normal PJ

      4. Jurisdictional basis: (SMJ) (Step 4)

         1. Any of the 9 heads

         2. Normal Diversity Requirements:

            1. Strawbridge Complete Diversity: SH is diverse from all Claimants; AND

            2. Qualifying AIC: Exceeds $75k exclusive of interest/costs

         3. Examples:

            1. SH v. C1, C2, C3, C4, SH (X)

      5. Venue: (Step 3)

         1. Normal Requirements:

            1. 28 U.S.C. § 1391

               1. Where:

                  1. All D’s reside (if all in the same State)

                  2. Sub’l part occurred

                  3. PJ over any D (escape hatch)

   2. (2) “Statutory” Interpleader – 28 U.S.C. §1335

      1. Requirements: (Rule for Joinder)

         1. Applies where: The stake involves a res of $500 value (or $500-or-more obligation)

      2. Court Deposit:

         1. Plaintiff must deposit the stake into court.

      3. Service of Process: (PJ) (Step 3)

         1. Nationwide service of process,

            1. 28 U.S.C. §2361

      4. Jurisdictional Basis: (SMJ) (Step 4)

         1. Special Minimal Diversity Rqmts:

            1. Any Claimant is diverse from any other Claimant; AND

            2. Thing of value of $500 or more

         2. Minimal diversity is satisfied if any one claimant is diverse from another even if the rest are not diverse (ON ONE SIDE OF THE V)

         3. Examples:

            1. SH v. C1, C2, C3, C4, SH ()

            2. SH v. C1, C2, C3, C4, SH ()

            3. SH v. C1, C2,...