1. CIVIL PROCEDURE CLASS 17 Professor Fischer Columbus School of Law The Catholic University of America September 30, 2005

2. CHIEF JUSTICE JOHN ROBERTS CONFIRMED Senate votes 78-22 to confirm

3. CONSTANCE BAKER MOTLEY 1921-2005 Federal district judge and highly successful civil rights lawyer 1961-1964 won 9 of 10 civil rights cases that she argued before the U.S. Supreme Court

4. SCOTUS, Anna Nicole Smith and the PROBATE EXCEPTION Marshall v. Marshall, 04-1544

5. WRAP-UP: PERMISSIVE JOINDER Federal permissive joinder rules (18, 20, 21) try to maximize courts’ abilities to meet the distinctive needs of a particular case Much discretion is given to courts to permit new parties to the action or new claims in multiparty litigation Some limits on that discretion to try to reduce potential for confusion and prejudice and delay and ensure efficiency

6. RULE 20 IS PERMISSIVE Parties are not required to be joined (subject to FRCP 19) Kedra case

7. FRCP 21: MISJOINDER OF PARTIES UNDER RULE 20 Misjoinder will not result in dismissal

8. RULE 19(a): WHO MUST BE JOINED IF FEASIBLE? Parties w/overlapping interest in property: 19(a)(2)(ii) Persons with an interest that the action may legally/practically impair : 19(a)(2)(i) Persons who, if not parties to action, make it impossible for court to grant complete relief to existing parties: 19(a)(1) As a general rule parties to a contract must be joined in an action where a contract is being construed.

9. FRCP 19: COMPULSORY JOINDER Some parties MUST be joined Class actions are an exception: 19(d) Old distinction: A. Necessary parties - should join if feasible BUT failure to join will not result in dismissal of action B. Indispensable parties - MUST join these parties. Failure to join results in dismissal of action

10. HOW DOES A PARTY CHALLENGE A PARTY’S ABSENCE UNDER RULE 19? Opposing party can move to dismiss (Rule 12(b)(7) motion Is failure to join an indispensable party under 12(b)(7) a waivable defense? Court can also order joinder sua sponte - at trial or on appeal.

11. CONSEQUENCES OF FAILURE TO JOIN AN ABSENT PARTY WHO SATISFIES 19(a) Party must be joined if feasible Court will order joinder if feasible - court will not initially dismiss action for misjoinder What if it is not feasible to join that party?

12. FRCP 19(b): WHERE JOINDER IS NOT FEASIBLE Joinder might not be feasible because it would defeat diversity jurisdiction, or court can’t obtain personal jurisdiction over the absent party or absent party has a valid venue objection In this case, what should the court do?

13. FACTORS THE COURT TAKES INTO ACCOUNT UNDER 19(b) 1. Potential prejudice of proceeding wihtout a person e.g. inconsistent judgments 2. Possibility of avoiding adverse consequences by shaping relief 3. Adequacy of judgment in person’s absence 4. Availability of another forum where P can get relief

14. ADDING ADDITIONAL CLAIMS BY COUNTERCLAIM OR CROSS-CLAIM SEE FRCP 13 These are additional claims made by parties to the action

15. COUNTERCLAIMS What is a counterclaim? What provisions of the FRCP govern counterclaims? What are the two kinds of counterclaims?

16. PERMISSIVE COUNTERCLAIMS What provision of the FRCP governs permissive counterclaims? What is the test for when a counterclaim will be permissive? How does a defendant assert a permissive counterclaim?

17. COMPULSORY COUNTERCLAIMS What provision of the FRCP governs? A counterclaim is not compulsory UNLESS _______________ [please fill in the blank] Different standards: significant logical relationship (broadest), overlap in evidence (less broad) EXCEPTIONS

18. 1. Party had counterclaim that would otherwise be compulsory but never filed responsive pleading (e.g. successful 12(b)(6) motion) 2. Counterclaim doesn’t mature until after pleading served 3. Court lacks jurisdiction over indispensable third parties that would have to be joined for counterclaim 4. Counterclaim is subject of a pending lawsuit 5. Where plaintiff’s complaint rests on court’s in rem or quasi in rem jurisdiction 6. In some cases, where D who has been sued for injunction or equitable claims seeks money damages in counterclaim

19. FAILURE TO ASSERT A COMPULSORY COUNTERCLAIM What happens if a COMPULSORY COUNTERCLAIM is not asserted? BUT see FRCP 13(f) and 15(a) What happens if a PERMISSIVE COUNTERCLAIM is not asserted?

20. BANQUE INDOSUIEZ V. TRIFINERY p. 324 CB State or federal court? D executed promissory note payable to P and guaranteed by B D do not dispute liability under the note P argues that D owes P money and seeks summary judgment What does D argue? What does P argue in response?

21. BANQUE INDOSUEZ CONT’D Why does the court hold that it is unfair to enforce a contractual waiver of D’s counterclaim IF that counterclaim is compulsory -- even where under the applicable N.Y. law such contracts of waiver are enforceable? Note that in NY all counterclaims are permissive (NY CPLR section 3019) Does the court find D’s counterclaim compulsory or permissive? Why?

22. CROSS-CLAIMS What is a cross-claim? What provision of the FRCP governs cross- claims? Are cross-claims compulsory? Can any cross-claim be brought? How are cross-claims different and similar to counterclaims?