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Attack Plan

Joinder

Civ Pro

Joinde
r
Joining a claim
Counter claim Cross claim
Permissive
13g
18a
Compulsory
Permissive
13a
13b

Consolidation/
Severance 42
Interpleader
22

Joining a
Party
By
Party

By Non-Party

Permissive Compulsory
Intervention
Impleader
20
19
24
14a
Defendant
Plaintiff
As a right
Motion for Summary Judgment
Permissive
20a2
20a1
56
24a
24b

I.

Joining of a claim

a. SMJ TEST: Before you can join any claims court needs jurisdiction!
Do you have it?
i. VIEWED CLAIM BY CLAIM FOR PURPOSES OF SMJ
ii. Under 1332? Diversity
iii. Under 1331? Federal Question OR Under 1367? Supplemental
1. Supplemental (Take about a, b, c, and d)
a. There must be a pending claim.
b. 1367a requires claims by the plaintif to be so
related they form the same constitutional case
i. Interpreted by Gibbs to means Common
nucleus of operative fact? (Gibbs) most
likely (BE Specific)
1. Kind of cases or claims that would
normally be brought together
ii. Same transaction or occurrence test and
common nucleus test is virtually the same
test but they are different. Make sure you
point out that they are different.
c. Make sure it doesnt fall under 1367b
i. Not solely based on diversity
ii. Not a claim by plaintif against persons
under 14, 19, 20, 24
1. NOT a barrier for joinder of nondiverse plaintiffs if they meet amount
in controversy!
d. Make sure it doesnt fall under 1367c
i. Complex issue of state law
ii. Claim substantially predominated over
the claim which original jurisdiction is based.
i.e. added claims needs a lot more evidence
or involves a lot more money
iii. DC has dismissed all claims which it had
original jurisdiction

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b.
c.
d.

e.

f.

Joinder

Civ Pro

iv. Courts discretion for compelling reasons


i.e. prejudice defendant
VENUE TEST: SEE VENUE
If the joining of a claim will result in an additional party, see Joining a
party R19/20 (FRCP 13h)
General Joinder of Claims 18a
i. Check SMJ and Venue
ii. Party seeking relief against another party may assert any claims,
counter claims, cross claims, or third party claims.
iii. No same transaction or occurrence requirement! HOWEVER
you must already have a valid claim against them!
iv. Can be claims against the other party or a co-party!
Counter Claim - Does a party on one side of the suit have a claim
against a party on the OTHER side? Yes, than its a counter claims.
i. CHECK SMJ
1. IPJ not needed since they are already a party of the suit.
2. VENUE- venue is not normally required by courts in
compulsory counter claims Schoot and it is unclear if it is
required in permissive Hansen
ii. Does the Counter Claim arise out of the same transaction or
occurrence (13a1A) AND does not require adding another
party the court does not have jurisdiction over (13a1B)?
1. Same transaction or occurrence= Three test: (same
event, logically connected, overlap of witnesses & facts)
You can apply the three tests to claims that have been
added (non-original claims)!
2. Yes, It is compulsory and must be added under 13a or
party loses their opportunity to raise claim forever.
a. Exceptions
i. The claim is already pending somewhere
else 13a2A
ii. if the court cannot excerpt jurisdiction
13a2B
3. No, than it is permissive under rule 13b. These claims
do not have to be raised. If they are, they might be
separated into a separate trial under 42b since they do
not promote efficiency.
4. Can add a party under 13h through counter claim See
19/20
Cross Claim - Does a party on one side of the suit have a claim
against a party on the SAME side? Yes, than its a cross claim
i. CHECK SMJ.
1. Venue not needed (venue proper on original, not
needed on cross claim Bredberg)
2. IPJ not needed since they are already a party of the suit

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Joinder

Civ Pro

ii. Does the claim arise out of the same transaction or


occurrence as the original claim OR is related to property
that is subject of the original claim? 13g
1. Same transaction or occurrence= Three test: (same
event, logically connected, overlap of witnesses & facts).
You can apply the three tests to claims that have been
added (non-original claims)!
2. Yes, Cross Claims allowed under 13g. Not Compulsory!
a. may include a claim that the co-party is or may
be liable to the cross-claimant for all or part of a
claim asserted in the action against the crossclaimant 13g
3. No, Cross Claim is not allowed.
iii. Can add a party under 13h through cross claim See 19/20
iv. 3rd parties on the same side can bring claims against each
other if they can argue that they each have a common claim
against them by the plaintiff/defendant.

II.

Joining of an additional Party

a. Joining someone through amendment: See 15c1C (Pleadings)


b. Failure to Join a party could result in dismissal: 12b7
c. For all parties: Treated as an original pleading = Need Proper
Service under 4 AND Must respond under 12
d. SMJ
i. Under 1332? Diversity
ii. Under 1331? Federal Question OR Under 1367? Supplemental
(1367a Supp works for Joinder of Parties)
1. Supplemental (Owens) (Take about a, b, c, and d)
a. There must be a pending claim.
b. 1367a requires claims by the plaintif to be so
related they form the same constitutional case
i. Interpreted by Gibbs to means Common
nucleus of operative fact? (Gibbs) most
likely (BE Specific)
1. Kind of cases or claims that would
normally be brought together
ii. Same transaction or occurrence test and
common nucleus test is virtually the same
test but they are different. Make sure you
point out that they are different.
c. Make sure it doesnt fall under 1367b
i. Not solely based on diversity
ii. Claims by plaintifs against persons under
14, 19, 20, 24
1. NOT a barrier for joinder of nondiverse plaintiffs if they meet amount
in controversy!
d. Make sure it doesnt fall under 1367c

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Joinder

Civ Pro

i. Complex issue of state law


ii. Claim substantially predominated over
the claim which original jurisdiction is based.
i.e. added claims needs a lot more evidence
or involves a lot more money
iii. DC has dismissed all claims which it had
original jurisdiction
iv. Courts discretion for compelling reasons
i.e. prejudice defendant

e. By Party of suit

i. Compulsory 19a if feasible


1. CHECK IPJ, SMJ, Venue
2. Can the court accord complete relief among
existing parties? 19a1A
a. No, Than the party must be joined
b. Yes, see R20
3. OR
4. Does a non-party have an interest relating to the
subject of the action that not joining him would? 19a1B
impair his ability to protect that interest(19a1Bi)
OR would not joining him subject a party to multiple
obligations?(double jeopardy) (19a1Bii)
a. Yes, Than the party must be joined
b. No, see R20
5. What if you need them but cant get them? i.e. lack
IPJ 19b
a. In equity and good conscience court has to
choose between dismissing or going on without
them. Will Likely dismiss. Dismiss under 41. Dismiss
for lack of SMJ 12h3 at any time
b. 19b is the factors the court should consider.
i. Will a judgment rendered in that persons
absence prejudice that person or existing
parties. 19b1
ii. Can prejudice be lessened or avoided by
19b2
1. Protective provisions 19b2A, shaping
the relief19b2B, or other
measures19b2C
iii. Would judgment rendered in persons
absence be adequate 19b3
iv. Plaintiff have an adequate remedy if it was
dismissed (other venue) 19b4
ii. Permissive 20
1. Joining of a plaintif 20a1
a. CHECK IPJ, SMJ, Venue

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Joinder

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b. Does the claim arise out of the same transaction


or occurrence? 20a1A (event, overlap of facts &
witnesses, or logically connected) AND
c. Is there a common question of law or fact?
20a1B
i. Yes, Can Join
ii. No, Cannot Join
2. Joining of a defendant 20a2
a. Does the claim arise out of the same transaction
or occurrence? 20a2A
b. Is there a common question of law or fact?
20a2B (TIE IN FACTS)
i. A common question of law or fact =
substantial logical relationship between
the transactions or occurrences at issue
Mosley
ii. Yes, Can Join
iii. No, Cannot Join
iii. Impleader 14a Is a party adding a claim to get reimbursed
if the party is found guilty? Rule 14 is permissive May
assert
1. No Venue needed, Need IPJ and SMJ
2. Is or MAY be liable Party is not required to bring in
third party.14a1
iv. Third Party Claims!
1. 14b Plaintif may bring in a 3rd party
2. 14a2D third party May also assert against the plaintiff
claims that arise out of the same transaction or
occurrence. A claim by the 3rd party against the
plaintiff.
3. 14a3 plaintiff can bring a claim against the third party if
it arises out of the same transaction or occurrence.
4. 14a5 third party may also bring in another party. who
is or may be liable to the third-party defendant
5. Compulsory Counterclaims against third party plaintiffs
MUST be brought 14a (see 13a)
6. Cross-claims - same transaction or occurrence as
original claim.
7. Can two 3rd party defendants on different claims bring a
claim against each other?
a. Make a new claim all together, use 1404 to get it
into the same venue than 42 to consolidate them.
8. If there is no contract, than you have to look to local tort
law to see if reimbursement is allowed!!!
a. In LA, he would only get what he owed since under
Louisiana law using comparative negligence you
can only get sued for what you owe.

Attack Plan

Joinder

Civ Pro

9. Once you have proper impleader, can bring any claim


under 18.

f. By Non-Party of the suit

III.

i. Interventions 24 24a and 24b bother require a timely


motion
1. Check:
a. IPJ/Venue (Presumed to have submitted to the
jurisdiction of the court but this presumption can be
contested by objection of the intervener)
b. SMJ
i. As a right FQSMJ / DSMJ / SUPP
1. Intervene as non-diverse Plaintiff
based on diversity No Supp
2. Intervene as non-diverse Defendant
based on diversity Supp Available
ii. Permissive Supp is okay
2. Talk about both As a right and Permissive!
3. As a right (Not Compulsory) 24a
a. Does a statute give an unconditional right to
intervene? 24a1 OR
b. Does the intervening party have a right to the
subject where his right would be impaired if not
allowed to intervene? 24a2 OR
i. Unless an existing party accurately
represents interest.24a2
c. Yes, Allowed to intervene
d. No, See 24b Permissive Intervention
4. Permissive 24b
a. Does the intervening party have a conditional
right to intervene given by federal statute?
24b1A OR
b. Does the intervening party have a claim that
shares with the main action a common
question of law or fact? 24b1B
c. Yes, Can intervene as long as you have SMJ!
d. No, Cannot intervene.
5. Courts Discretion 24b3 bar is low under 24b1B court
should use its discretion. Closer to trial = less chance
of intervention
Joining of parties by Interpleader Permissive Statutory Interpleader 28
USC 1335, 1397, 2361
a. Check SMJ, IPJ, Proper Service, Venue
b. As a Plaintif 22a1
i. Possible exposure to double or multiple liability 22a1
1. Claims must total more than the value of the fund
Hussain
ii. Proper even though

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Joinder

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1. Claims lack a common origin or are independent 22a1A


2. Plaintiff denies liability 22a1B
c. As a Defendant 22a2
i. Defendants may bring an interpleader claim by means of crossclaim or counterclaim and then join any necessary claimants in
the action (19,20,42).