CIVIL PROCEDURE CLASS 16 Professor Fischer Columbus School of Law The Catholic University of America October 2, 2002

WRAP-UP OF LAST CLASS §We discussed rules for joinder of parties and the Kedra case (FRCP 19, 20, 21) §We discussed the rules for adding claims against existing parties (cross-claims and counterclaims) (FRCP 13)

WHAT WILL WE DO TODAY? §A few words on PE12. The most important: avoid being overly conclusory. Don’t forget to provide your reasoning and also cite legal sources that support your argument (e.g. rules, cases). See handout (model answer). §We will learn about impleader under FRCP 14 §If time, we will do Practice Exercise 13

Massachusetts Contribution Statute §A useful resource:  Article by Matthew C. Baltay in Boston Bar Journal (Nov./Dec. 2001) PRO RATA TORT CONTRIBUTION IS OUTDATED IN OUR ERA OF COMPARATIVE NEGLIGENCE _rata.htm

PRACTICE EXERCISE 12: POSSIBLE COUNTERCLAIM §Shortly after the accident in which Charles was killed, Nancy calls a friend who works at Raytheon (where Randall is employed) and tells her that Randall is an alcoholic. Randall is fired from his job. Does Randall have a defamation claim against Nancy for slander? Would this be a compulsory or permissive counterclaim? Would you need to do some legal research before you could answer this question?

PRACTICE EXERCISE 12: CROSS-CLAIM §Assume Nancy’s motion to add Ultimate Auto/City of Lowell has been granted and amended complaint filed. Also assume you represent Randall. Do you have a plausible cross-claim? Prove it. Focus on the language of Mass R. Civ. P. 13(g) which is the same as Fed. R. Civ. P. 13(g). If you do have a plausible cross-claim, how many counts would it have?

FRCP 14: IMPLEADER §This governs the procedure whereby the court can allow a defendant to bring a third party (not already a party) into the action §This is known as IMPLEADER §What is the purpose of impleader?

FRCP 14: IMPLEADER §What is the defendant called in third-party proceedings? § THIRD-PARTY PLAINTIFF (TPP) §What is the impleaded person called? §THIRD PARTY DEFENDANT (TPD)

DISTINGUISING IMPLEADER, COUNTERCLAIMS, CROSS-CLAIMS §What is the difference between impleader and a counterclaim? §A counterclaim is a claim brought against an existing party (D v. P) Only non-parties can be impleaded under Rule 14. §What is the difference between impleader and a cross-claim §A cross-claim is also is a claim brought against an existing party (D1 v. D2) Only non-parties can be impleaded under Rule 14.

Who can be joined under FRCP 14? §Persons, not already parties, who, under applicable law, may be obligated to reimburse the D. §What are some examples? §e.g. tortfeasor seeks contribution or indemnity from others who may be liable to P if D is found liable but whom P has not sued §OR someone not a party who has acted a a guarantor of a transaction and who will be liable under the guarantee if D is found liable §MUST SUCH PERSONS BE JOINED?

Timing of Impleader Claims §At what stage of the action can a third - party complaint be served? §At any time (14(a)) §When is the leave of court required? § If third-party complaint is filed more than 10 days after answer is served

Relation of third-party claims to original claim §Can a D make a third-party claim under FRCP 14 that is unrelated to the claims against that D? §No, the third-party claim must relate to the main claim and must depend on the outcome of the main action. See U.S. v. Olavarrieta at CB p. 332

YET MORE PARTIES §Can a TPD implead other parties and if so, in what circumstances? §If a TPD impleads someone, what is that person called? §That person is a fourth-party defendant §Diagram: P-----D/TPP TPD------FPD §Can this go on and on forever?

SEPARATE TRIALS §What provision of FRCP 14 provides for separate trials? §To prevent overly complex trials that would confuse the trier of fact, 14(a) provides- “Any party may move to strike the third- party claim or for its severance or separate trial.” §Also don’t forget rules 42(b) and 21!

Counterclaim Ds and impleader §Can a P who is a counterclaim-D implead third parties and if so, in what circumstances? What provision of the FRCP governs this? §14(b) P D T

HYPOTHETICAL §Assume the Massachusetts contribution statute applies. Souter is involved in a car accident with two other drivers, Scalia and Rehnquist. Souter sues Scalia for negligence. Can Scalia implead Rehnquist on the basis that his negligence also caused Souter’s injuries?

HYPOTHETICAL §Assume the Massachusetts contribution statute applies. Souter is involved in a car accident with two other drivers, Scalia and Rehnquist. Souter sues Scalia for negligence. Can Scalia implead Rehnquist on the basis that it was Rehnquist who was negligent, not Scalia?

PLEADING REQUIREMENTS FOR THIRD-PARTY COMPLAINTS §A third-party complaint must comply with FRCP 8 and 11 §8(a) “A pleading which sets forth a claim for relief, whether an original claim…or third-party claim shall contain …(2) a short and plain statement of the claim showing that the pleader is entitled to relief”

SERVICE REQUIREMENTS §Back to hypo: Assume the Massachusetts contribution statute applies. Souter is involved in a car accident with two other drivers, Scalia and Rehnquist. Souter sues Scalia for negligence. Scalia wants to implead Rehnquist on the basis that his negligence also caused Souter’s injuries. §Advise Scalia as to what rule governs service and filing of a third-party complaint. §FRCP 4. See for a form third-party summons