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Mon., Nov. 5.

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Presentation on theme: "Mon., Nov. 5."— Presentation transcript:

1 Mon., Nov. 5

2 complex litigation joinder of parties and causes of action

3 impleaders also known as third party complaints

4 Rule 14. Third-Party Practice (a) When a Defending Party May Bring in a Third Party.     (1) Timing of the Summons and Complaint.  A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it.

5 (2) Third-Party Defendant’s Claims and Defenses
(2) Third-Party Defendant’s Claims and Defenses.  The person served with the summons and third-party complaint — the “third-party defendant”:         (A) must assert any defense against the third party plaintiff’s claim under Rule 12;         (B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g);         (C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff’s claim; and…

6 14(a)(2)               (D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff.     (3) Plaintiff’s Claims Against a Third-Party Defendant.  The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff.

7 necessary parties

8 Rule 19. Required Joinder of Parties (a) Persons Required to Be Joined if Feasible.     (1) Required Party.  A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:         (A) in that person’s absence, the court cannot accord complete relief among existing parties; or         (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:             (i) as a practical matter impair or impede the person’s ability to protect the interest; or             (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

9 - water flows from D’s property down to P’s, flooding it - P sues D to erect a dam to protect P’s property - if the dam is erected X’s property, upstream from D’s will be flooded - Is X a necessary party?

10 Glueck sues Company to have Company reissue shares currently held by Haas in Glueck and Haas’s name Haas (who thinks shares are all his) is a necessary party why?

11 a purchaser of a debenture sues the issuer to assert alleged right to convert the debenture into stock are the other owners of the debentures necessary parties?

12   African-Americans who have been refused employment by a fire department are suing the city for racial discrimination in hiring they are asking for preferential treatment in hiring by the fire department as a remedy for past discrimination are white applicants to the fire department necessary parties?

13 Glueck (NY) sues Company (Cal
Glueck (NY) sues Company (Cal.) in federal court in California to have Company reissue shares currently held by Haas (NY) in Glueck and Haas’s name. is there a problem...?

14 (b) When Joinder Is Not Feasible
(b) When Joinder Is Not Feasible.  If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:     (1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;     (2) the extent to which any prejudice could be lessened or avoided by:         (A) protective provisions in the judgment;         (B) shaping the relief; or         (C) other measures;     (3) whether a judgment rendered in the person’s absence would be adequate; and     (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

15 Torrington v. Yost (D.S.C. 1991)

16 Rule 24. Intervention (a) Intervention of Right
Rule 24. Intervention (a) Intervention of Right.  On timely motion, the court must permit anyone to intervene who:     (1) is given an unconditional right to intervene by a federal statute; or     (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.

17 African-Americans who have been refused employment by a fire department are suing the city for racial discrimination in hiring they are asking for preferential treatment in hiring by the fire department as a remedy for past discrimination may the white firefighters (or white applicants to the fire department) who would be affected by this relief intervene of right? would there be any conditions on their intervention?

18 what if the white firefighters do not intervene?

19 42 U.S.C. § 2000e-2(n)

20 (B) A practice described in subparagraph (A) may not be challenged in a claim under the Constitution or Federal civil rights laws— (i) by a person who, prior to the entry of the judgment or order described in subparagraph (A), had— (I) actual notice of the proposed judgment or order sufficient to apprise such person that such judgment or order might adversely affect the interests and legal rights of such person and that an opportunity was available to present objections to such judgment or order by a future date certain; and (II) a reasonable opportunity to present objections to such judgment or order;

21 P wants to build a dump in some wetlands the Army Corp of Engineers refuses to issue a permit P sues the Army Corp of Engineers may people who live by the wetlands intervene on the side of the government?

22 (b) Permissive Intervention. (1) In General
(b) Permissive Intervention.     (1) In General. On timely motion, the court may permit anyone to intervene who:         (A) is given a conditional right to intervene by a federal statute; or         (B) has a claim or defense that shares with the main action a common question of law or fact

23 supplemental jurisdiction

24 P (NY) sues D (NY) under federal securities law in federal court P joins under R 18(a) a state law fraud claim against D D impleads insurer I (NY) for state law contract claim D also brings compulsory counterclaim for breach of contract (P didn’t pay all the money he owes under the securities contract)

25 P(NY) D(NY) I(NY) federal securities state law breach of contract
fraud state law Insurance contract

26 U. S. Const. Article III. Section. 2
U.S. Const. Article III. Section. 2.  The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

27 pendent jurisdiction - applies to a plaintiff with an action that has its own source of SMJ who joins causes of action without their own source of SMJ but that arise from a common nucleus of operative fact

28 ancillary jurisdiction
ancillary jurisdiction 1) actions brought by someone other than the plaintiff that lack their own source of federal SMJ but have a common nucleus of operative fact with the action that does (compulsory counterclaims, crossclaims) or  

29 2) joined cause of action, although not really arising out of the common nucleus of operative fact, asserts legal rights that were activated by the cause of action that has an independent source of federal SMJ actions - impleader - supplementary proceedings to effectuate P’s judgment

30 P (NY) sues D1 (NJ) for brawl P joins D2 (NY) under R 20(a) pendent jurisdiction?

31 P (NY) sues D1 (NJ) for brawl P joins D2 (NY) under R 20(a) P(NY) D1(NJ) D2(NY)

32 initial approach – even if pendent or ancillary jurisdiction is constitutional, look to the purposes of the statute providing SMJ to the “core” action to see if it is in keeping with the purposes of the statute

33 after Finley…

34 28 U.S.C. § 1367. - Supplemental jurisdiction

35 (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

36 (b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.

37 P(NY) D(NY) I(NY) federal securities state law breach of contract
fraud state law Insurance contract

38 What if the D is granted summary judgment on the federal securities action? Must the court dismiss the state common law fraud action? What if the D gets the federal securities action dismissed for failure to state a claim?

39 (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if - (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

40 1367(d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.

41 JINKS V. RICHLAND COUNTY 538 U.S. 456 (2003)

42 - P(NY) and D(NY) wish to litigate their state law battery action in federal court before their friend, federal judge X, who is willing - how to overcome the problem of SMJ? - P sues D in federal court claiming that D’s hitting him was a violation of federal securities law - P joins to the federal action a state law battery action - when the federal securities law action is dismissed for failure to state a claim, there is still SMJ for the battery action - should this work...?

43 A (NY) sues B(NY) under fed securities laws A joins state common law fraud claim against C (NY), an auditor for B who was also responsible for the fraud A(NY) federal 20(a) state B(NY) C(NY)

44 Finley v. United States (US 1989) Aldinger v. Howard (US 1976)

45 A (Cal.) sues E (Nev.) (B’s employer) under state law for a battery committed by B (Cal.) - E impleads B - B then brings a suit against A on the harm done to B in their fight

46 a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, A(Cal.) E(Nev.) B(Cal.)

47 A(Cal.) E(Nev.) B(Cal.) a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules,

48 Owen Equip & Erection Co v. Kroger

49 1) P (Cal) sues D1 (Cal) under federal securities law and joins an action against D2 (Cal) under state common law fraud. Same as 1), except P also joins a state law action for a battery occurring a few weeks before the fraud against D1. P(Cal) federal state D(Cal)

50 P (Cal) sues D (Cal) under federal securities laws
P (Cal) sues D (Cal) under federal securities laws. D joins an action against P for battery, asking for $100k P(Cal) federal state securities battery D(Cal)

51 P (Cal) sues D (Ore) for state law breach of contract, asking for $100K. D joins an action against P for battery, asking for $25k. P(Cal) state state breach of contract battery D(Ore)

52 P (NY) sues D (NJ) for battery asking for $100K
P (NY) sues D (NJ) for battery asking for $100K. D impleads X (NY) a joint tortfeasor for contribution. X brings 14(a) claims against P from damages from same accident P brings compulsory counterclaim against X

53 P(NY) battery battery battery D(NJ) contribution X(NY)
a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules,

54 P (NY) sues D1 (NJ) for state law battery asking $100k and D2 (NJ) asking $25K. P(NY) $100k $25k D1(NJ) D2(NJ) (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules,

55 (b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.

56 P1 (NY) sues D (NJ) under state law battery for $100k and joins with P2 (NY) who sues D for $25K. P1(NY) P2(NY) $100k $25k D(NJ) (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules,

57 Exxon Corp. v. Allapattah (U.S. 2005)

58 P1 (NY) sues D (NJ) under state law battery for $100k
P1 (NY) sues D (NJ) under state law battery for $100k. D makes a motion to join P2 (NY), who has a claim against D for $25K, as a necessary party P1(NY) P2(NY) R. 19 $100k $25k D(NJ) (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules,

59 P1(NY) sues D (NJ) for $100k and joins with P2 (NJ) who sues D for $100K P1(NY) P2(NJ) $100k $100k D(NJ)

60 P1(NY) sues D1 (NJ) for $100k. P1 joins with P2 (NY) who sues D2(NJ) for $25k.

61 P1(NY) P2(NY) $100k $25k D1(NJ) D2(NJ) (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules,

62 recap of supplemental jurisdiction for diversity cases with co-plaintiffs and co-defendants…

63 No P1(NY) P2(NJ) $100k $100k D(NJ)

64 Yes P1(NY) P2(NY) $100k $25k D(NJ)

65 No P(NY) $100k $100k D1(NJ) D2(NY)

66 No P(NY) $100k $25k D1(NJ) D2(NJ)

67 P(Cal) sues D(Cal) in state court in Cal under 42 U. S. C
P(Cal) sues D(Cal) in state court in Cal under 42 U.S.C. § 1983 for violations of his civil right. Joined to the action is an unrelated state law breach of contract action against D. May D successfully remove? P(Cal) federal state civil rights contract D(Cal)

68 28 U.S.C. § Actions removable generally (c) Joinder of Federal law claims and State law claims.--(1) If a civil action includes— (A) a claim arising under the Constitution, laws, or treaties of the United States (within the meaning of section 1331 of this title), and (B) a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute, the entire action may be removed if the action would be removable without the inclusion of the claim described in subparagraph (B). (2) Upon removal of an action described in paragraph (1), the district court shall sever from the action all claims described in paragraph (1)(B) and shall remand the severed claims to the State court from which the action was removed. Only defendants against whom a claim described in paragraph (1)(A) has been asserted are required to join in or consent to the removal under paragraph (1).


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