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Joinder Attack Plan
TOPICAL OUTLINE FOR JOINDER
STEPS FOR JOINDER
1. Step 1: Do we really want the joinder? (Strategic)
a. Yes, I want to bring more into my lawsuit b. Why?
2. Step 2: Is the joinder proper under the procedure rules?
a. Joinder by Claimants - Rule 18 (Claimant)
i. Rule 20 - Permissive Party Joinder (Claimant)
b. Joinder by Defending Parties (Δ)
i. Rule 13 - Counterclaims and Crossclaims (Δ)
ii. Rule 14 - Impleader (Δ)
iii. Rule 22 - Interpleader (Δ)
iv. Rule 19 - Required Parties (Δ)
c. Joinder by Non-Parties (3rd Party)
i. Rule 24 - Intervention (3rd Party)
d. Special Joinders ()
i. 28 U.S.C. §1407 - Multidistrict Litigation ()
ii. Rule 23 - Class Actions ()
3. Step 3: Is personal jurisdiction & venue proper for the joinder?
b. Venue c. PJ in Class Action d. 100-Mile Bulge Rule
4. Step 4: Is subject matter jurisdiction proper?
a. Federal Question b. Diversity c. Any other 9 heads:
i. Ambassadors ii. Admiralty iii. U.S. being a party iv. State v. Citizen of another state v. State v. State vi. Citizens of the same state claiming lands d. If none apply: Supplemental Jurisdiction i. 28 U.S.C. §1367 e. SMJ in Class Actions
1 Joinder Attack Plan
STEP 1 - DO WE WANT JOINDER?
1. Yes, I want to bring more into my lawsuit
2. Why Joinder? (POLICY)
a. Lower the costs of resolution;
b. More efficient use of the court system;
c. Better "story" at trial;
d. Avoid inconsistent outcomes; obtain the best "preclusion" effects.
2 Joinder Attack Plan
STEP 2 - JOINDER RULES (MUST SATISFY 1)
I. JOINDER BY CLAIMANTS - RULE 18 (Claimant)
a. 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.
i. 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 ii. 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
A. Rule 20 - Permissive Party Joinder (Claimant)
a. Who can be joined as Fellow Plaintiffs or New Defendants:
i. Anyone who -
1. Asserts any right to relief Jointly, Severally, or In The
Alternative, so long as…
a. Joint = together i. Damage to all Ps by roof loss b. Severally = Separated i. Damage to each P's practice c. In the Alternative*** = we're not sure who has it but they alternatively would i. Dispute among P ownership ii. 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.
b. "Partial" Parties:
i. 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:
a. For one or more Plaintiffs, according to their respective rights to relief b. Against one or more Defendants, according to their respective liabilities.
3 Joinder Attack Plan c. Rule 20(b): PROTECTIVE MEASURES
i. Goal: To prevent litigants from embarrassment, delay, or expense from INCLUSION of other parties…
ii. Remedy: Court may order separate trials or make such other orders.
II. JOINDER BY DEFENDING PARTIES (Δ)
A. Rule 13 - Counterclaims and Crossclaims (Δ)
a. 13(a) - Compulsory Counterclaim i. A counterclaim that MUST be brought now, as counterclaims, or the right to relief on those claims is forever lost.
ii. 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:
a. Requires an inaccessible joinder,
b. Claim is already pending elsewhere,
i. If in another court you do not need to add it in this lawsuit c. Opponent's claim is in rem (not In Personam) and no other
CC is made.
b. 13(b) - Permissive Counterclaim i. A counterclaim that MAY - at the claimant's option - be brought as counterclaims, or may be brought later in a different lawsuit.
ii. CC is Permissive if:
(1) It is not compulsory a. For example, the Counterclaim:
i. Did not exist at the time of original service ii. Does not arise out of same "transaction or occurrence"
iii. One or more of the 3 exceptions applies iii. Every counterclaim is allowed because every counterclaim is
Permissive unless it is Compulsory c. 13(g) - Crossclaims:
i. Asserted only against co-parties,
ii. 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
4 Joinder Attack Plan
B. Rule 14(a) - Impleader - (IM: It's Moving) (Δ)
a. Requirements i. 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…
a. "is or may be liable":
i. includes accrued and contingent (i.e., those recoverable only if some contingency first occurs)
ii. 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.
a. "For all or part":
i. Contribution: one co-negligent party seeks reimbursement from other co-negligent parties, if it pays more than its share. (partial shift)
ii. 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":
a. This must be a "claim-over" = a claim that REIMBURSES
the "defending party" for monies paid (or payable) to the plaintiff.
b. Allowed to file:
i. Within 14 Days after service of the original answer:
(1) Unilaterally (no motion or court approval required)
ii. More Than 14 Days after service of the original answer:
(1) Order Required (court must approve on motion, with notice to all)
i. Pleading & Service: Defending party serves new party ("third-party" or
"impleaded party" with new summons + complaint.
ii. 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 d. 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).
e. Who else can Implead? (ALWAYS LOOK AT THE "v.'s")
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