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Civil Procedure II

Civil Procedure II



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Published by crlstinaaa
Civil Procedure II, Spring 2008
Joinder, Discovery, Resolution without Trial, The Jury Trial, Appeals, Prior Adjudication,

Hofstra University School of Law, Professor Freedman

Civil Procedure, Sixth (6th) Edition, Yeazell
Civil Procedure II, Spring 2008
Joinder, Discovery, Resolution without Trial, The Jury Trial, Appeals, Prior Adjudication,

Hofstra University School of Law, Professor Freedman

Civil Procedure, Sixth (6th) Edition, Yeazell

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Published by: crlstinaaa on May 06, 2008
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– Still need to satisfy SMJ with any type of joinder.a.§1367 Supplemental Jurisdiction – add claims that don’t have independent SMJ whentheyarise out of same T/O as original claim (that did have the SMJ). Claimant mayaggregate all claims to satisfy amount in controversy req. *
Can’t use this if it would destroy diversity SMJ.
 b.Ancillary Jurisdiction – if SMJ on diversity, can bring in non-diverse 3
party. Thepoint is that the 3
party claim is so related to & necessary to fair conclusion of thetrial, so must be brought in together. The additional claim though must be“ancillary & dependant,” rather than “new & independent.”i.Note: Mostly for Df. Pl chose which court to sue in, Df forced. Also, not reallygiven to Pls b/c we want to deter ppl from suing a diverse party to get SMJ,then just impleading a non-diverse 3
party. (
See Kroger 
)c.Pendant jurisdiction – If there’s already SMJ and suit in fed court, the fed court mayhear state claims that are closely related to the original claim. If on diversity SMJ,must still have complete diversity but added claims don’t have to independentlymeet amount of controversy.II.
PJ and Venue
– must always be proper
 Joinder of Claims (Rule 18)-
Party asserting a claim, counterclaim, Crossclaim, or 3
party claim may join as many claims as it has against an opposing party (permits joinderof claims, doesn’t compel it).a.Other rules may be more restrictive (like Rule 13). You have to abide by the mostrestrictive.IV.
Counterclaims and Crossclaims (Rule 13) -
Authorizes a Df to assert claims against aparty who has claimed against him (counterclaim), or against another Df (crossclaim).a.Compulsory Counterclaim [13(a)] - If a claim arises out of the same T/O, you must“use it or lose it.”i.Don’t need assert the claim if it’s already in another action.ii.Get SMJ using 1367 suppl. jurisdiction; PJ & venue must still be proper.iii.Underlying policy concerns: efficiency & economy - If all same T/O, geteverything resolved in one action. Enforce this by not letting the availablecounterclaim be brought at a later time.b.Permissive Counterclaim [13(b)] - You
bring them and raise claims that
arise out of the same T/O. Needs independent SMJ; can’t use 1367 b/c doesn’tarise from same T/O.
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c.Crossclaim [13(g)] - allows a party to assert a claim against a co-party, but only if the claim arises from the same T/O (at court’s discretion). (May use ancillary jurisdiction to get the SMJ needed)i.No compulsory cross-claim.ii.Must ask for relief, otherwise, it’s just a defense.iii.If one cross-claim asserted is same T/O, party can go ahead and assert anyother cross-claims that it has. Theory is, if we have to deal with the cross-claim, then it’s ok to go ahead with the others.V.
Plant v. Blazer Financial Services
a.Facts : Suit based on a federal claim (truth-in-lending act). Df’s counterclaim of money owed. Issue of whether counterclaim was compulsory or permissive.b.Rule 13 permits Df to bring either a compulsory or permissive counterclaim. The diff matters here b/c counterclaim needs independent SMJ, and we’re in fed court viafed ques (not diversity). Rule 13(a) says it’s compulsory if same T/O (and supp juris.also extends to this via 1367). If permissive, then no independent SMJ, and no suppl.Court gives us 4 tests on how to determine if same T/O:i.Are the issues of fact and law raised by the claim and counterclaim largelythe same?ii.Would res judicata bar a subsequent suit on Df claim absent the compulsorycounterclaim rule?iii.Will substantially the same evidence support or refute Pl’s claim as well asDf’s counterclaim?iv.Is there any logical relation between the claim and counterclaim?1.Logical means - arising from the same "aggregate of operative facts" inthat the same operative facts serve as basis of both claims or theaggregate core of facts upon which the claim rests activates additionallegal rights, otherwise dormant, in the defendant.2.Court concludes it meets this test, so its compulsory (court’sdiscretion)c.Policy Concerns : Freedman says ruling as compulsory is wrong for policy reasonsi.We don’t want to deter ppl from suing based on truth in lending act b/cthey’re afraid their loan balance would offset their damages.ii.We don’t want to clog up fed courts with non-fed issues.
Who must be a plaintiff: Rule 17
-a.Real Party in Interest - The real party in interest requirement insists that the partywho sues actually possesses the substantive right (by substantive law) beingasserted and has a legal right to enforce the claim. Real party in interest must sueunder own name. However certain people have the right to sue in their own namew/o joining the real party in interest (like a trustee or beneficiary).
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b.Capacity to Sue or be Sued
Capacity to sue or be sued refers to an individual'sability to represent her interests in a lawsuit without the assistance of another. Twocategories:i.Incapacity of a minor or incompetent person - as a matter of law, there arecertain classes of people that lack the capacity to sue or be sued and if thishappens, then court will assign a guardian.ii.Incapacity due to organizational status or legal relationship. When anorganization lacks the capacity to sue or be sued. If rule comes from federallaw, then an unincorporated organization can be sued.
Rule 14.
- provides that a Df can bring in as a
party Df one claimed by the Df to beliable to him for all or part of the Pl’s claim against the Df (and it necessarily must ariseout of the same transaction or occurrence).a.The rule is not mandatory - Df may refrain from impleader and assert his claiminstead in an independent action.b.Need independent basis for jurisdiction.c.In order to satisfy 14(a), any liability of a 3
party Df must necessarily be secondaryor derivative to the liability of the original defendant.You can’t implead a 3
party just b/c he would also be liable to Pl.
i.Watergate Land Condominium Unit Owner's Association v. Wiss, Janey, Elster  Associates
1.Facts : Pl hired 2 companies to do some repair in condos. Df, hired todraw specifications, and 3
part to do waterproofing. Pl sues Df but notthe waterproofers. Df tries to invoke Rule 14 to implead them.2.Analysis : Df can’t implead b/c 3
party would not be liable to Dfs if Df isultimately liable to Pl. 3
party only liable to Pl, and Pl chose not tosue them. (If Df had hired the waterproofers, then they could impleadthem.)3.Policy - Pl master of claim – can’t force them to sue someone theydidn’t chose to. So 3
party liable only to Df. Can’t add on a Df that’sliable to Pl if Pl doesn’t want it.a.Better for Pl to sue all possible Dfs and let them battle it out. Pldidn’t do that here, b/c possibly no basis for liability, and theycan’t under Rule 11 if there are no merits (sanctions harassing).Maybe no jurisdiction.d.Liability of 3
party Df – to implead only show that 3
party may be liable. Rule 14only is a procedural mechanism to get them in, but it doesn’t create liability.e.You can go on and on – a 3
party Df may also use this rule to implead another 3
part Df f.Pl using impleader:i.If there’s a claim against Pl, she may bring in a 3
party if this rule wouldallow a Df to do so.
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