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civil-procedure-pucillo-i.pdf, Exams of Civil procedure

The University of Texas at AustinCivil procedure

CIVIL PROCEDURE OUTLINE FALL 2015. I. SUBJECT MATTER JURISDICTION – Power of court to hear a case given the nature of the dispute.

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CIVIL PROCEDURE OUTLINE FALL 2015
I. SUBJECT MATTER JURISDICTION – Power of court to hear a case given the nature of
the dispute
• State Courts – General Jurisdiction
• Federal Courts – Specific Jurisdiction
• Must have for Fed SMJ:
◦ 1. Constitutional Authority – Article III. Sec. 2 (extends judicial power to claims arising out of
two states, state and citizen, or citizens of different states)
◦ 2. Statutory Authority – 1331 or 1332
A. DIVERSITY JURISDICTION – 1332 - Fed can hear claims that arise from state claim
• Section 1332(a) requires that (A) amount in controversy exceed 75,000 and that the (B) claim is
between either between
(1) citizens of different States
(2) citizens and foreigners (except those lawfully admitted for residence and living in the United
States).
- Rule of Complete diversity - EVERY plaintiff must be diverse from EVERY defendant
1. Domicile for Diversity
◦ Citizenship – Citizen or permanent Resident of US AND domiciliary of a
state
▪ Domicile – Person
• 1. Fixed and permanent home, principal establishment
• 2. Intention of returning when he is absent
• To change domicile, must establish residency and intent to remain
indefinitely
◦ Dual National – citizen of the US as well as a citizen of a foreign country.
If domiciled in outside of country, cannot be sued.
•
◦ A Corporation (1332C) is deemed a citizen of state(s) in which it Incorporated
▪ Any state where it is incorporated
• where its Principle place of business PPB is. Hertz held that a corp’s PPB is the corp’s nerve
center or the location where the corp’s offices direct and controls the company’s day to day activities.
(1332c)
▪ Unincorporated associations (partnerships) are domiciled according to the domiciles of its
association members (Sullivan)
2. Amount-in-Controversy
• Damages alleged by plaintiff in good faith not the amount awarded
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CIVIL PROCEDURE OUTLINE FALL 2015

I. SUBJECT MATTER JURISDICTION – Power of court to hear a case given the nature of the dispute

  • State Courts – General Jurisdiction
  • Federal Courts – Specific Jurisdiction
  • Must have for Fed SMJ: ◦ 1. Constitutional Authority – Article III. Sec. 2 (extends judicial power to claims arising out of two states, state and citizen, or citizens of different states) ◦ 2. Statutory Authority – 1331 or 1332 A. DIVERSITY JURISDICTION – 1332 - Fed can hear claims that arise from state claim
  • Section 1332(a) requires that (A) amount in controversy exceed 75,000 and that the (B) claim is between either between (1) citizens of different States (2) citizens and foreigners (except those lawfully admitted for residence and living in the United States).
  • Rule of Complete diversity - EVERY plaintiff must be diverse from EVERY defendant 1. Domicile for Diversity ◦ Citizenship – Citizen or permanent Resident of US AND domiciliary of a state ▪ Domicile – Person
  • 1. Fixed and permanent home, principal establishment
  • 2. Intention of returning when he is absent
  • To change domicile, must establish residency and intent to remain indefinitely ◦ Dual National – citizen of the US as well as a citizen of a foreign country. If domiciled in outside of country, cannot be sued.

◦ A Corporation (1332C) is deemed a citizen of state(s) in which it Incorporated ▪ Any state where it is incorporated

  • where its Principle place of business PPB is. Hertz held that a corp’s PPB is the corp’s nerve center or the location where the corp’s offices direct and controls the company’s day to day activities. (1332c) ▪ Unincorporated associations (partnerships) are domiciled according to the domiciles of its association members (Sullivan) 2. Amount-in-Controversy
  • Damages alleged by plaintiff in good faith not the amount awarded
  • Good faith – subjectively sincere and objectively reasonable ◦ Aggregation : ▪ Rule 18 : allows a single P to combine into one suit all claims against a single D to satisfy the threshold. ▪ Rule 20 : (Multiparty litigation): except where the claim is common and undivided, aggregation is NOT permitted. ▪ Counter Claims : does not affect the amount in controversy and cannot be added to satisfy the threshold. ▪ - Not aggregated : where a single plaintiff seeks below minimum requirement from different defendants. ▪ - Plaintiff MUST meet the amount requirement against each defendant individually. (So even if one defendant meets the minimum, if the other does not, P cannot bootstrap the other if it does not satisfy the minimum amount) ▪ - Where there is more than one P and one lacks the requisite minimum, as long as one P’s individual claim satisfies it, then the others can join under supplemental jurisdiction IF the claims are against a single D and are related. B. FEDERAL QUESTION 1331
  • 28 USC § 1331 (FQ): the district courts have original JXN of all civil actions “arising under the Constitution, laws, or treaties of the U.S.” ◦ Federal question must appear in P well pleaded complaint (i.e. met all conditions to move forward) – MOTTLEY ◦ When the face of the plaintiff’s complaint seeks a relief for a cause of action available under Federal Law ( Mottley ). The federal issue must be necessary to the proof of the plaintiff’s claim. ◦ Rule: for a plaintiff to sue in a federal court under the statutory test for arising under jurisdiction, he MUST assert a claim that arises under federal law. The court assesses jurisdiction based solely on the claim asserted by the plaintiff. (The Mottley’s case did not : they sued for a breach of contract, a state law cause of action that did not require them to prove any proposition under federal law. They could establish their right to relief simply by proving that the railroad had agreed to renew the passes and then refused to do so. Even though the railroad was anticipatory going to assert the federal statute in its defense, the statute was not an element of the Mottley’s case in chief. ◦ ii. A case does not arise under Fed Law if the P’s complaint merely anticipates a defense or counterclaim that may be available to D under Fed Law. II. SUPPLEMENTAL JURISDICTION 1367
  • Supplemental jurisdiction is the authority of United States federal courts to hear additional claims substantially related to the original claim even though the court would lack the subject-matter jurisdiction to hear the additional claims independently
  • § 1367(a): Except as provided in (b) and (c) or otherwise by the 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 U.S. Constitution. ◦ Influence of Gibbs – asserting two claims, first the fed law claim for secondary boycott and the second under state law for interference with contract

the plaintiff will not join unrelated state claims to federal claim to prevent removal or “trap” federal claim. Federal Court would have discretion to dismiss, remand nonfederal claims. III. PERSONAL JURISDICTION

  • Three Traditional Types of Jurisdiction in State Courts: A court must have power to hear a case and enforce its judgment over the parties in the dispute. There are three ways to “get the defendant into court.” [ **Pennoyer v. Neff (1877)]
  1. In Personam Jurisdiction:** jurisdiction gained by consent, presence or citizenship. i) Consent : Consent occurs when a party comes into a jurisdiction and essentially consents to be sued there. (Foreign corporation registers in state as a condition of doing business there consents to be sued there). Jurisdiction when domiciled. ii) Presence : Presence means the defendant need be present in the state for the court to have jurisdiction. Jurisidiction when served. The length of time spend in the state is irrelevant, anyone traveling in the state should expect to be sued there. iii) Citizenship : Citizenship means the person is a citizen of the state; state will always have jurisdiction over its citizens.
    1. Quasi in Rem Jurisdiction : Quasi in Rem Jurisdiction is jurisdiction over the value of property; plaintiff must attach (seize) defendant’s property before court can have jurisdiction. Jurisdiction over a person but based on that person’s interest in property located within the court’s territory.
    2. In Rem Jurisdiction : In Rem Jurisdiction is jurisdiction over the property itself within the state’s limits. In Rem Jurisdiction is jurisdiction over the land, but not the person. A court’s power to adjudicate the rights to a given piece of property, including the power to seize and hold it. EXPANSTION OF PERSONAL JURISDICTION (CURRENT)
    • MUST BE CONSISTENT WITH DUE PROCESS I.E. does not offend traditional notions of fair play and substantial justice.( International Shoe) This can be established through A. Voluntary Appearance ◦ Insurance Corp of Ireland v Compagne Des Bauxites De Guinee ▪ Party appeared in court for purpose of challenging jurisdiction is bound by their decision. Did not comply with discovery orders to demonstrate the court did not have jurisdiction and therefore waived their right to defense of lack of jurisdiction B. Personal Service of Process in the forum state ▪ Burnham v Superior Court
      • Divorce case where he was served while in Cali.
      • state and federal court systems that jurisdiction over one who is physically present in

the forum state is proper C. Domiciled in forum state and process in another state D. Waiver/Consent – Forum Selection Clause/Long Arm Statute ◦ Calder effects – intentional tort - ▪ the proposed forum may exercise personal jurisdiction over a nonresident defendant when their conduct knowingly effects individuals in the forum ▪ Long arm statute - statutes authorizing state courts to exert jurisdiction over nonresidents engaging in certain types of conduct. Has contacts

  • McGee v International Life Insurance Co. ◦ Cali had a statute stating any foreign corp entering into a contract with Cali resident is subject to the courts jurisdiction. This is consistent with due process because the one contact gave rise to the claim. ◦ INSURANCE CO. REACHED OUT TO MCGEE AFTER THEY BOUGHT EMPIRE. PURPOSEFUL AVAILMENT WAS PRESENT ▪ Forum Selection clause - e stablish the jurisdiction will take place. Parties can agree in advance how to handle future disputes E. Minimum Contacts (Continuous and Systematic; Single and Isolated) MINIMUM CONTACTS – WHEN DEFENDANT IS NOT A RESIDENT OF THE STATE (INTERNATIONAL SHOE)
  1. Purposeful Availment- of privilege of conducting activities in forum state .Look at contacts + reasonableness factors A. If contacts are continuous and systematic – are the contacts so continuous and systematic that they are at home in the forum state, does not need to be related to the cause of action – general jurisdiction. assert jurisdiction over foreign corporations to hear any and all claims against their affiliations with the state are so “continuous and systematic” to render them essentially “ at home” in the forum state – International
  • Goodyear Dunlop Tires Operators v Brown ◦ They could not claim specific jurisdiction bc the tires said to be distributed were not the ones that caused the accident
  • Burger King Corp ◦ If a defendant deliberately engages in significant activities in the state and creates continuing obligations between himself and residents of the forum state, he is subject to jurisdiction in that state even if he has never been physically present in the state ◦ Weighed out the interest factors
  • Walden v. Fiore ◦ Connection must arise from the contacts the defendant himself creates. The only thing linking the defendant to Nevada here is the plaintiff. ◦ Minimum-contacts analysis looks to the defendant's contacts with the forum state itself, not the defendants contacts with persons who reside there
  1. Reasonableness Factors - can only take away personal jurisdiction. If contacts are established, look at these. A. Burden on ∆ in litigating in the forum state B. State’s interest – protect citizens? C. π interest in convenient and effective relief in forum state (these three would all need to be present to defeat personal jurisdiction ) D. interstate judicial system’s interest in obtaining the most efficient resolution of controversies E. shared interest of the several states in furthering fundamental substantive social policies QUASI IN REM AND PERSONAL JURISDICTION
  • SHAFFER V HEITNER – Non residents absent from the state (overruled Pennoyer) Quasi in rem not enough to exercise personal jx ◦ The Delaware court found jurisdiction solely on a state statute allowing jurisdiction based on a defendant’s property located in the state, although the lawsuit is entirely unrelated to that property interest. Because there is no nexus between the property and the substance of the action, there must be another basis for determining the defendants’ minimum contacts.

◦ In order to establish jurisdiction on value of property, quasi in rem, then the claim must be related to the property to establish personal jurisdiction, if it is not, you must have minimum-contacts ◦ Standard: fair and reasonable (through traditional notions of fairplay and justice) by defendant's contacts through purposeful availment of the privilege of conducting activity in the forum state ◦ if you own land in that state, you are purposefully availing yourself in that land IF IT HAS TO DO WITH THAT SUIT ◦ Stream-of-commerce establishes purposeful availment when there isnt the usual basis to consider the purposeful availment STREAM OF COMMERCE ASAHI

  • stream of commerce – disbursement of goods - could the person selling it, were they aware of where it was going? Did they place is in the stream knowing it would end up there. Way of establishing purposeful availment – no contacts at all
  • Awareness that a product may end up in the forum state is not enough. Rather, fairness requires that there must be some purposeful action by the defendant to infuse its products into the forum state market. Examples include designing a product for the forum market, advertising in the forum market, or marketing a product in the forum state through a distributor.
  • Connor – says stream of commerce does not work. Says you need something more like a product direct towards the forum state or advertisements there
  • Brenan – says if you are aware that product s going somewhere, that is knowledge and that you deposit your good in the stream of commerce knowing it will reach a forum state, that is acting purposefully J.MCINTYRE MACHINERY LTD V NICASTRO
  • The intent of the corporation or individual to submit to and avail themselves of the state’s laws, protection and benefits is sufficiently shown by their placing their goods into the stream of commerce, expecting these products to be purchased by consumers from this state as well.

iii. Last resort: If there is no district in which the action may otherwise be brought, any district in which any defendant is subject to PJ at the time the action is commenced b. Non-diversity jurisdiction – An action may be brought in: i. a district where any defendant resides, if all defendants reside in the same state; or ii. a district in which a substantial part of the events giving rise to the claim occurred; or iii. Last resort: If there is no district in which the action may otherwise be brought, a district in which any defendant may be found

  1. “Found” – similar to minimum contacts, but less stringent. Most significant contracts c. Corporate D deemed to reside in any judicial district in which subject to PJ - 1391(c) d. Alien sued in any district - 1391 TRANSFER AND FORUM NON-CONVENIENS – more convenient forum somewhere else? a. State/fed courts possess the power to decline to exercise jurisdiction even though they possess if it would be more convenient for the case to be heard elsewhere– or for reasons of justice or efficiency
  • Used when there is proper PJ and venue – but for convenience forum should change § 1406 : Remedying Incorrect Venue : When venue is improper, the district court shall either dismiss the case or transfer it to a district where it could have been brought. b. Transfer – 28 U.S.C. § 1404 (One System to Same System) i. EITHER PARTY CAN MOVE FOR A TRANSFER
  1. It is assumed P brought case where she wanted to – but things might have come to light later in the suit making either side wanting the case to be transferred ii. Transfers gives the federal courts the ability to move cases within the system without the necessity for dismissal and refilling (like forum non conveniens)
  2. When venue is improper the court may dismiss or transfer iii. Although similar to FNC there is a lesser of a showing required , courts look at:
  3. Convenience of the parties and witnesses
  4. Interests of justice
  5. If the transfer is to a district where case might have been brought
  1. Law of transferor court governs - changing court not the law a. The new court sits as if “they were the old court.”
  2. Forum selection clause significant, but not controlling iv. If the first court lacks personal jurisdiction, the transferee’s court’s law will cover
  3. Changing courts not law – benefit of convinces, but no benefit of different law v. State court – transfer to another county within the same state vi. Federal court – transfer to another judicial district 1. § 1404 a. Either party may seek transfer b. Factors (Lesser showing on inconvenience than forum non conveniens)
  4. Convenience of parties
  5. Place where operative facts occurred
  6. Access to sources of proof, evidence, and ability to compel witnesses
  7. Convenience of witnesses
  8. Plaintiff’s choice of forum
  9. Forum familiarity with governing law
  10. Trial efficiency (docket congestion)
  11. Interests of justice
  12. In a case involving a contract, any forum selection clause in the contract will be considered as evidence of what the parties thought would be a convenient forum. C. Must transfer to district where case could have orig. been brought - § 1404(a) C. Forum Non Conveniens I. ONLY D CAN MOVE FOR A FORUM NON CONVENIEN ii. Forum non convenience is a dismissal – the case ends in one court and then it has to be moved to a different court and started over iii. Applies when:
  • Think about defendants wanting to impede and whether that court has personal jurisdiction over impleading parties
  • If you do not have both valid personal jurisdiction and proper venue (1404) then you would move for a 1406 transfer instead V. PLEADING Conley v Gibson (Previous Law)
  • Standard of possibility. States it should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief Bell Atlantic Corp v Twombley (Overruled Conley and changed the law)
  • requires that the factual allegations must suggest more than parallel behavior ; they must suggest that an actual agreement was made. ◦ We do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed Ashcraft v Iqball
  • facial plausibility requires the plaintiff to plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
  • The facts cannot be conclusory, they must factual allegations assumed to be plausible
  • Assumption of truth does not apply to legal conclusions, only to factual allegations A. Rule 8 ▪ Rule 8 - 8A – FEDERAL RULES- Must contain:
  1. Short and plain statement of grounds for the courts jurisdiction unless court has jurisdiction and claim needs new jurisdictional support (some indication of why the court has jurisdiction)
  2. short and plain statement of the claim showing that the pleaders are entitled to relief – Twombly and Iqball
  3. a demand for the relief sought, which may include relief in the alternative or different types of relief
  • Rule 8b – Admit or deny allegations asserted by opposing party
  • Rule 8c – Must assert affirmative defenses including: assumption of risk, fraud, statute of frauds, statute of limitations, waiver, etc. B. Rule 12
  • Rule 12b – may assert certain defenses by motion: (1) lack of subject-matter jurisdiction; Rule

(2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19.

  • Rule 12 – Defenses and Objections: when and how presented; motion for judgment on the pleadings, consolidating motions, waiving defenses, pretrial hearing ◦ 21 days to file an answer ◦ If you waive service, then you get 60 days to respond ◦ If you bring a motion, you bring all the defenses that would apply ◦ 12c – motion for judgment on the pleadings – a party may move for judgment on the pleadings ◦ 12e – you do not get what the plaintiff is saying ◦ 12f – motion to strike – something like asking to strike punitive damages because they do not apply in that state ◦ 12h – waiving and preserving certain defenses ▪ if you fail to raise a motion under 12b, you better put that defense in the answer, if you do not, you waive it. 12b2-12b C. Rule 15 RULE 15 – AMENDED AND SUPPLEMENTAL PLEADINGS (a)AMENDMENTS BEFORE TRIAL. (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. (2) Other Amendments In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires. a. Amending Pleadings with (or without) the Court’s Permission

no attorney. i. If the document is not signed, by Rule 11(a) the court must strike the paper unless the paper is signed promptly after the attorney or party becomes aware of the problem. b. The duty of Candor: i. Litigants are subject to sanctions for advocating a position after it is no longer tenable. ii. The rule protects litigants against sanctions if they withdraw or correct contentions after being notified about potential violation. c. Are sanctions mandatory? i. Under Rule 11, the trial court has discretion to determine whether to apply sanctions. ii. The rule states that the sanctions should be no more severe than reasonably necessary to deter repetition of the conduct by the offending attorney or party or comparable conduct by similarly situated persons. d. Are sanctions imposed automatically? i. Before sanctions are imposed, litigants must receive notice about an alleged violation and a chance to respond. e. “Safe Harbor” provision and how it is expressed in Rule 11. i. A motion for sanctions is not to be filed until at least 21 days after the motion is served on the offending person. ii. During that period, if the violation is corrected withdrawing an allegation, the motion should not be filed with the court. f. Writings exempt from Rule 11’s coverage? i. Rule 11 explicitly is inapplicable to discovery and disclosures requests, responses, objections and motions under the discovery provision in Rules 26-

RULE 41 – DISMISSAL OF ACTIONS I. Rule 41a (1) – By Plaintiff 1A. Plaintiff can dismiss without court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment OR a stipulation of dismissal signed by all parties who have appeared 1B. Unless stated otherwise, dismissal is without prejudice II. Rule 41a(2) – By Court Order; Effect

  1. On court's terms. May only dismiss once then refile RULE 55 – Default; Default Judgment A. Default - Failed to plead or defend, clerk must enter party's default B1. Default Judgment by Clerk – If for some certain, then by plaintiff request and affidavit, clerk may enter a default judgment against defendant B2. Default Judgment by Court – In all other cases, you must apply to court for default judgment. If party has appeared, must be served with written notice 7 days prior to the hearing C. Set Aside Default Judgment – for lack of subject matter jurisdiction or personal jurisdiction **VI. PRECLUSION –
  • The party must have their day in court**

A. CLAIM PRECLUSION – RES JUDICATA

1. Same parties 2. Final judgment on the merits 3. Same “claim” (transaction/occurence) Rush v City of Maple Heights

  • Her injuries could have been brought in first Matthews V. New York Racing Association
  • The previous judge had found that upon the facts and law the Plaintiff had shown no right to relief. B. ISSUE PRECLUSION - COLLATERAL ESTOPPEL 1. Same issue- risen in action 1 and risen in action 2 2. Issue is actually litigated and decided – CRUCIAL 3. Issue was necessary to the judgment (if there are two issue sufficient for dismissal then neither would be necessary for the judgment because either one would work) 4. Asserted against a party in the prior action TYPES OF ISSUE PRECLUSION: 1. Defensive Mutual Collateral Estoppel 2. Defensive Non-Mutual Collateral Estoppel 3. Offensive Mutual (Issues with this bc what if D did not really try to defend themselves?) 4. Offensive Non Mutual Collateral Estoppel There is no requirement that the party asserting res judicata had to be a party or in privity with a party to the earlier litigation. Estoppel is mutual if the one taking advantage of the earlier adjudication would have been bound by it, had it gone against him. Rios v Davis – Attempt at Defensive Mutual Estoppel
  • Decision of Rios' negligence was not necessary to the judgment. Contributory negligence of PDG was all the court needed to dismiss the first action ◦ Same issue would be rios' negligence. – it was actually litigated, it is being applied to someone in former party BUT it was not necessary to the judgment ◦ The finding that davis was negligent is the only thing necessary for the prior judgment, it wouldn't have mattered if rios was negligent or not ◦ Rios could assert offensive mutual collateral estoppel Bernhard v Bank of America Trust
  • Defensive Mutual Collateral Estoppel
  • She represented the estate so there is privity PARKLANE – Offensive Nonmutual Collateral Estoppel
  1. special statutory schemes (such as bankruptcy) may apply ‘‘ adequate representation ,’’ to suffice as ‘‘ virtual representation ,’’ requires that (1) the interests of the nonparty and her representative are aligned; and (2) either the party understood herself to be acting in a representative capacity, or the original court took care to special procedures of protection of interest of the nonparty.
    1. Notification of Adequate representation VII. JOINDER RULE 18 – JOINDER OF CLAIMS IN GENERAL.A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party
    • Once a claimaint has a single claim, it can give them all claims there
    • impleading, if I am liable, this third party defendant is liable as well. Then it determines, how much liability?
    • May bring in third party for indemnification – rule 18 says you can also do a negligence claim
    • ^^ this claims do not have to be related to the same transaction
    • Just because allowed by rule 18 does not mean it will be admitted, there are many obstacles such as jurisdiction and venue
    • Res judicata often prohibits splitting of single cause of action into two or more suits if related claim RULE 42b- CONSOLIDATION; SEPARATE TRIALS
    • Court has discretion to split the issues into separate trials even if they are part of the same claim RULE 20 – PERMISSIVE JOINDER OF PARTIES (a) PERSONS WHO MAY JOIN OR BE JOINED. (1) Plaintiffs. Persons may join in one action as plaintiffs if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction , occurrence, or series of transactions or occurrences; and (B) any question of law o r fact common to all plaintiffs will arise in the action. (2) Defendants. Persons—as well as a vessel, cargo, or other property subject to admiralty process in rem—may be joined in one action as defendants if:

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action. (3) Extent of Relief. Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants according to their liabilities.

  • A1. Plaintiffs - if they assert right to relief out of same transaction, AND any question of law or fact common to all plaintiffs will arise in the action
  • A2 – Defendants – if right to relief is asserted against them of same transaction AND question of law or fact common to all defendants will arise in the action RULE 21 – MISJOINDER AND NONJOINDER OF PARTIES
  • Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.
  • You cannot move for dismissal on the basis of misjoinder, the remedy is to just add or drop a party, the action proceeds but the question is with whom RULE 13 – COUNTERCLAIM AND CROSS CLAIM (a)COMPULSORY COUNTERCLAIM. (1)In General. A pleading must state (only consequence of not doing so is preclusion) as a counterclaim any claim that—at the time of its service—the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction. (b)PERMISSIVE COUNTERCLAIM. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory. (Does not arise out of same transaction or occurrence)
  • You must still have subject matter jurisdiction for counterclaim ◦ ancillary jurisdiction/supplemental jurisdiction works here ▪ 1. must be original jurisdiction