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Permissive Joinder of Claims & Parties

Civil Procedure Northeastern University School of Law Professor Margaret Woo

Three themes:
1) notice 2) transactional test 3) party autonomy

Joinder: Modern U.S. civil process as distinguished from earlier common law and other systems Liberal pleadings Broad Joinder
Whole controversy as the aim The transactional test

Broad discovery
State power in private hands Deep bite, broad scope

Joinder & Jurisdiction

Joinder rules allow multiple claims and parties be brought in one litigation but does not confer jurisdiction. They deal with the structure of the law suit but do not deal with the courts jurisdiction.
If joinder of claim is there federal subject matter jurisdiction over added claim? If joinder of party--Is there personal jurisdiction over joined party?

Permissive Joinder of Claims Rule 18

A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party
Note: Why permissive? Is it really permissive?

Rule 20 Permissive Joinder of Parties

Rule 20
Allows joining more plaintiffs & defendants from (A) same t/o and (B) common question of law or fact

Rule 21 Misjoinder and Nonjoinder with Rule 42 Consolidation/Separate trials Who is likely to use these rules? When in the course of litigation are these rules useful? How are the effects of these rules different?

Lopez v. City of Irvington

What rules are involved here? What are the threshhold considerations? What are the discretionary considerations? Any significance? Whats the test for joinder of parties? Whats the meaning of transaction? Commonality? Other factors? Compare: same transaction? - parking tickets received by same plaintiff on different dates; traffic tickets (one for speeding; the other for parking) received by same plaintiff on different days; - different traffic tickets received by different plaintiffs issued by same officer on different dates; - different traffic tickets received by different plaintiffs and issued by different officers on different dates

Simple joinder as applied: Carpenter v. Dee

Can Nancy Carpenter join her various causes of action? What if Dee owed Carpenter $1000 on a debt incurred three months ago on a second car? What if Dee had borrowed $1000 from Carpenter after the accident and now refuses to repay that debt? Can Carpenter join Randall Dee, his brother, Ultimate Auto, McGills garage, Inc. and the manufacturer of the tires in the same case? What if Scott was injured in a similar accident a week later by Keefe, who also bought tires and a suspension lift from Ultimate Auto? Can Scott and Carpenter join as plaintiffs? What if Dee and Keefe were racing their jeeps when each tipped injuring Carpenter and Scott? Can Dee and Keefe be 9 joined as defendants?

Strategic considerations: Carpenter v. Dee

Cost? Efficiency? Jury? Control? Res judicata?


The Defendant Strikes Back: Counterclaims Rule 13. Counterclaims

(a) Compulsory Counterclaims
(1) A pleading must state as a counterclaim any claim that at the time of its service the pleader has against an opposing party if the claim (A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction. . . .


Compulsory Counterclaim Exceptions:

Rule 13 (a)(2)
(A) when the action was commenced, the claim was the subject of another pending action; or (B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.


Counterclaims Recapitulated
Failure to assert compulsory counterclaim results in waiver: defendant barred from bringing it in separate suit. If its a compulsory counterclaim, federal court will have subject matter jurisdiction to hear the claim (supplemental jurisdiction will attach)


Cross claim: Rule 13(g)

A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim
Compare: rule 20


Podhorn v. Paragon Group, Inc.

How did defendant challenge this litigation? What was plaintiffs response to challenge? Did trial court agree with plaintiffs argument? Compare: Podhorns claims in his present complaint with: - What if Podhorn had suffered serious injuries because of the defect? Compulsory counterclaim? - What about a conversion claim if the landlord had entered the Podhorns apartment without their permission on June 15? Compulsory counterclaim? 15

Wright, Miller & Kane: Federal Practice & Procedure

Transaction or occurrence within rule 13(a):
- Are the issues of fact and law raised by the claim and counterclaims largely the same? - Would res judicata bar a subsequent suit on defendants claim absent the compulsory counterclaim rule? - Will substantially the same evidence support or refute plaintiffs claim as well as defendants counterclaim? - Is there any logical relation between the claim and the counterclaim? Note: the term may have different shades of interpretation depending on whether it appeared in res judicata, 16 jurisdiction, or federal joinder rules context.

Permissive joinder in Carpenter v. Dee

What if after accident, Carpenter calls Dees workplace and tells them that Dee is an alcoholic? Does Dee have counterclaim for slander? Compulsory or permissive? What if Carpenter were allowed to amend complaint to add other defendants, what plausible crossclaims are available to Dee?


Cross claim possibilities:

Plaintiff sues manufacturer and dealer for injuries from defective product. Case in federal court under diversity jurisdiction. Plaintiff asserted defect in vehicles steering wheel. - What if M wants to assert that Dealer was responsible for any fault? - What if M wants to sue Dealer for failing to pay for several other delivered vehicles? - What if M wants to sue Plaintiff for repairs done on another car? - What if M and D both want to assert that there was no defect in the car and that the accident was the result of plaintiffs negligence?

A Review Hypothetical (20 minutes)

Plaintiff files suit against her employer in federal district court, invoking Title VII as a basis of jurisdiction and alleging sex discrimination as the reason for her dismissal from her job. Employer denies discrimination. Discovery proceeds. The case is more than a year old and on the eve of trial when plaintiff seeks to amend her complaint to add a state-law claim based on the tort of wrongful discharge--a firing for an unjust or unlawful motive; unlike the Title VII claim, the state law cause of action carries punitive damages. The statute of limitations on the wrongful discharge claim has run.

1) Assuming the federal court has subject matter jurisdiction, does the joinder rule (rule 18) allow this state law claim to be joined to the Title VII action? 2) does rule 15 allow plaintiffs amendment? Whats defendants strongest argument? Does the added claim relate back? 3) What if defendant wants to counterclaim for tort that plaintiff had destroyed some office equipment while employed? Is this a compulsory counterclaim or permissive counterclaim? What does it depend on?


Adding Additional Parties:

Abrams buys a Ford from Parmet Used Cars, co-signing note with Hackney. Car doesnt work. Abrams & Hackney dont pay loan: - Suppose Abrams brought suit against both Ford and Parmet, can Parmet bring suit against Ford for refusing to pay for warranty work to repair Abrams car? Compare rule 13(g) - Abrams sues Parmets Used Car Sales only. Parmet counterclaims Abrams for remaining balance. Can she join Hackney as an additional party on the counterclaim as a matter of pleading? Compare 13(h)


And theres more

Suppose Abrams only brought suit against Parmet, and there is a warranty agreement with Ford and Ford refuses to pay Parmet for warranty work to repair Abramss car? Can Parmet bring in Ford as a party in this litigation? See rule 14