CIVIL PROCEDURE CLASS 16 - PowerPoint PPT Presentation

CIVIL PROCEDURE CLASS 16

Professor Fischer

Columbus School of Law

The Catholic University of America

October 2, 2002

• 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)

• 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

• 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• Article by Matthew C. Baltay in Boston Bar Journal (Nov./Dec. 2001) PRO RATA TORT CONTRIBUTION IS OUTDATED IN OUR ERA OF COMPARATIVE NEGLIGENCEhttp://www.bostonbar.org/members/bbj/pro_rata.htm

• 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?

• 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?

• 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?

• What is the defendant called in third-party proceedings?
• THIRD-PARTY PLAINTIFF (TPP)
• What is the impleaded person called?
• THIRD PARTY DEFENDANT (TPD)

• 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.

• 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?

• 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

• 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

• 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?

• 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!

• 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)

D

P

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• 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?

• 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?

• 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”

• 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 http://www.scd.uscourts.gov/DOCS/AO441.PDF for a form third-party summons