The Green Algorithm and Joinder Rules in Civil Procedure | Study notes Civil procedure

I. The Green Algorithm (works, except for Rs 14(a) third party complaints and 19

necessary parties)

a. Are the people already adversaries?

b. Does the cause of action concern the same transaction/occurrence (t/o) of an

action already being litigated?

i. If no to both, forbidden joinder.

ii. If yes to both, mandatory joinder.

1. Compulsory counterclaim (CC)

2. Claim preclusion

a. Common law joinder rule.

iii. If yes to one, permissive joinder.

1. Can be yes to (a) and no to (b), or vice-versa

c. Rule 14 triangular actions

i. If π brings in ∆ over a cause of action, and ∆ brings in a third party, X,

then the X can bring counterclaims to π and π can bring counterclaims to

X. 1. Has to concern the same cause of action both ways.

2. 14(a)(2)(D) and 14(a)(3)

d. Rule 19 and Rule 14 third party complaints don’t satisfy the Green Algorithm (but

triangular actions under 14(a)(2)(D) and 14(a)(3) do)

i. Rule 14 looks at derivative liability. If π sues ∆, ∆ can bring in X if X

would be liable to ∆ for all or part of the amount ∆ had to pay π.

II. Dress Uniform is Impressive. You go Amber.

III. Rule 20: Permissive Joinder of Parties

a. ∆s: persons may be joined in one action as ∆s if:

i. 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 t/o; and

1. Joint L: Can get the whole amount of the damages from any one ∆

2. Several L: Can get the percentage of damages that ∆ is responsible

for

3. Joint and Several L: Can be used to take full damages from only

one ∆. Can also get the get only the damages from ∆s for they are

directly responsible. If plaintiff gets whole damages from a jointly

liable ∆, this generally creates a contribution action that the ∆ can

have against the other tortfeasor.

a. Can make join this contribution action under 13(g) (if the

joint tortfeasor is already a ∆) or 14(a) (if he is being

brought in for the first time by the ∆)

ii. Any question of law or fact common to all ∆s will arise in the action.

IV. Rule 14

a. Be careful, when representing a ∆, to not think you can bring in a new party

simply because it concerns the same t/o as action against ∆. Need to give a

derivative action against 3rd-party ∆. – 3rd-party ∆ must be liable to ∆ for all or

party of ∆’s liable to plaintiff.

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I. The Green Algorithm (works, except for Rs 14(a) third party complaints and 19 necessary parties) a. Are the people already adversaries? b. Does the cause of action concern the same transaction/occurrence (t/o) of an action already being litigated? i. If no to both, forbidden joinder. ii. If yes to both, mandatory joinder.

Compulsory counterclaim (CC)
Claim preclusion a. Common law joinder rule. iii. If yes to one, permissive joinder.
Can be yes to (a) and no to (b), or vice-versa

c. Rule 14 triangular actions i. If π brings in ∆ over a cause of action, and ∆ brings in a third party, X, then the X can bring counterclaims to π and π can bring counterclaims to X.

Has to concern the same cause of action both ways.
14(a)(2)(D) and 14(a)(3) d. Rule 19 and Rule 14 third party complaints don’t satisfy the Green Algorithm (but triangular actions under 14(a)(2)(D) and 14(a)(3) do) i. Rule 14 looks at derivative liability. If π sues ∆, ∆ can bring in X if X would be liable to ∆ for all or part of the amount ∆ had to pay π. II. Dress Uniform is Impressive. You go Amber. III. Rule 20: Permissive Joinder of Parties a. ∆s: persons may be joined in one action as ∆s if: i. 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 t/o; and
Joint L: Can get the whole amount of the damages from any one ∆
Several L: Can get the percentage of damages that ∆ is responsible for
Joint and Several L: Can be used to take full damages from only one ∆. Can also get the get only the damages from ∆s for they are directly responsible. If plaintiff gets whole damages from a jointly liable ∆, this generally creates a contribution action that the ∆ can have against the other tortfeasor. a. Can make join this contribution action under 13(g) (if the joint tortfeasor is already a ∆) or 14(a) (if he is being brought in for the first time by the ∆) ii. Any question of law or fact common to all ∆s will arise in the action. IV. Rule 14 a. Be careful, when representing a ∆, to not think you can bring in a new party simply because it concerns the same t/o as action against ∆. Need to give a derivative action against 3rd-party ∆. – 3rd-party ∆ must be liable to ∆ for all or party of ∆’s liable to plaintiff.

b. Person served with the summons and third-party complaint- the “3rd-party ∆” i. Must assert any defense against the 3rd-party π’s claim under Rule 12 (actually – you don’t have to – you could waive them…) ii. Must assert any counterclaim against the 3rd-party π under Rule 13(a), and may assert any counterclaim against the 3rd-party π under Rule 13(b) or any crossclaim against another 3rd-party ∆ under Rule 13(g) iii. May assert against π any defense that the 3rd-party π has to the π’s claim

this makes sense since the ∆ might not put up a good fight, knowing that ultimately the 3rd-party ∆ will be liable to him for the amount he pays the π

c. If an insurance company is not brought into a lawsuit, and the ∆ then sues the insurance company, the company is not bound by the earlier judgment of the court because a person not party to the lawsuit, or in privy to it, cannot be bound by a judgment in the lawsuit. i. Would have to then have another lawsuit. The insured would stand in the shoes of the original π, claiming that he is liable so the insurance will have to pay out. ii. Best to just include the insurance company (in fact, under your insurance contracts you are obligated to notify the insurance company and let it handle the case) d. Why is this rule not obligatory? i. Don’t want to force the ∆ to bring in this person, but makes good sense to allow him to do so. e. 14(a)(2)(D) – triangular action i. 3 rd-party ∆ can bring a claim against π regarding anything arising from same t/o as π’s claim against 3rd-party π. ii. 14(a)(3)

Same, but π joins the action against the 3rd-party ∆ instead. V. Necessary Parties a. Involve a lot of thought. Π is master of the complaint, gets to choose the ∆s. i. When we make an exception and say someone must be made a party, there must be very good reasons that trump π’s autonomy in choosing whom to sue. There must be something really bad about not including the person beyond mere inefficiencies.
Serious, practical problem with the person not being included.
Relatively rare. b. Cannot be bound by proceedings in which you were not a party. One of the top-ten things to remember about this class. Has only a few narrow exceptions. i. Due Process Clause makes this so. Have to have the opportunity to defend yourself. In the narrow exceptions due process is satisfied. ii. If π, ∆, and X are in a car accident, and π sues ∆ but ∆ is not found to be L, can X sue ∆ for the same accident?
Yes, otherwise X would be adversely affected by a suit he wasn’t involved in.

a. ∆ needs uniform rules concerning this, so you need to make everyone involved a party. iv. Fire Department Example

An African-American who has been refused employment by a fire department issuing the city for racial discrimination. Π wants to create affirmative action hiring. Are other African-Americans who have been refused employment necessary parties? a. Government needs consistent systems dealing with groups of people. b. Either have to have the affirmative action or not. Can’t keep relitigating the issue with each person. Need to bring in the entire class of people. c. If π was only asking for damages, then there wouldn’t be an issue. i. Usually, damage actions don’t create necessary parties 1. Injunctive relief can create necessary parties (usually doesn’t though)
in next lecture, Green admitted that this isn’t a great example of a necessary party, because it is conceivable that the fire department as a practical matter could give the π his injunctive relief without having a consistent policy concerning the other members of the class v. Very judgmental when determining if there is a necessary party.
Look at whether it’s practical for ∆ to be subject to different suits.
When πs are asking injunctive relief in public law litigation, it often creates necessary parties because of the effect of the injunction on third parties or the ∆’s practical need to have a consistent policy concerning the affected class vi. 2 big types of class action
All people in the class are necessary parties but there are so many that they cannot practically have their own lawyers a. These people can’t opt out. Not up to them. b. this is how class actions got started
Permissive Class Action: R 23(b)(3) Class Action a. Families of plane crash victims, etc. i. Don’t need to have them all together, but it’s more efficient. b. These people can opt out. c. this type of class action is a more recent invention d. Existing parties usually make the motion to bring in necessary parties. Courts sometime do this sua sponte. Otherwise, the 3rd^ party may make a motion to intervene of right under R 24. Intervention rules are very similar to Rule 19. e. When there is a necessary party, what happens if you can’t join them? i. If it would break diversity, mess up venue, or if there is no PJ over them. ii. Have a choice

Dismiss the lawsuit so it can be brought in a proper forum for PJ, venue, and SMJ
Continue on with the suit without the 3rd^ party iii. If the party is indispensable, then the case can’t continue and is dismissed. iv. If the party is necessary yet dispensable, the case continues.
This is determined by a. looking at how strongly the person is a necessary party (this is in sections 19(b)(1) and (3) b. 19(b)(2) looking at the extent prejudice could be lessened or avoided by i. Protective provisions in the judgment ii. Shaping the relief iii. Other measures c. 19(b)(4) whether the π would have an adequate remedy if the action were dismissed for nonjoinder i. Is there another court where π could have an adequate remedy because all the parties could be brought together? VI. Bankruptcy is awesome. a. Lots of litigation. Always in federal courts. VII. Rule 24: Intervention a. Intervention of Right. On timely motion, the court must permit anyone to intervene who: i. If there is a right under a federal statute; or ii. Unless you intervene, can’t protect your interest OR someone who is already a party will be subject to inconsistent adjudications iii. and your interest is not being adequately represented by an existing party b. Affirmative Action Firefighters example i. White firefighters may intervene because if the court rules for the African- American firefighters and give them their injunction, the white firefighters may sue to challenge the injunction and one of two things might happen
the court will not allow the first injunction to be challenged (meaning that the white firefighter’ cannot protect their interest)
the court will allow the first injunction to be challenged (meaning that the fire dept could be subject to inconsistent obligations)

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