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CIVIL PROCEDURE CLASS 17. Professor Fischer Columbus School of Law The Catholic University of America Oct 3, 2003. FRCP 19: COMPULSORY JOINDER. Some parties MUST be joined Class actions are an exception: 19(d) Old distinction:

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civil procedure class 17

CIVIL PROCEDURE CLASS 17

Professor Fischer

Columbus School of Law

The Catholic University of America

Oct 3, 2003

frcp 19 compulsory joinder
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
rule 19 a who must be joined if feasible
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.
how does a party challenge a party s absence under rule 19
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.
consequences of failure to join an absent party who satisfies 19 a
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?
frcp 19 b where joinder is not feasible
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?
factors the court takes into account under 19 b
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
adding additional claims by counterclaim cross claim
ADDING ADDITIONAL CLAIMS BY COUNTERCLAIM/CROSS-CLAIM
  • SEE FRCP 13
  • These are additional claims made by parties to the action
counterclaims
COUNTERCLAIMS
  • What is a counterclaim? What provisions of the FRCP govern counterclaims?
  • What are the two kinds of counterclaims?
permissive counterclaims
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?
compulsory counterclaims
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
exceptions
EXCEPTIONS
  • 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
failure to assert a compulsory counterclaim
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?
banque indosuiez v trifinery p 324 cb
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?
banque indosuez cont d
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?
cross claims
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?