Civil Procedure II Outline - Part 3

21
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.

13
(a) Compulsory Counterclaim.

1. In General. A pleading must state as a counterclaim any claim that—at the time of its service—the pleader has against an opposing party if the claim:
   1. arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and
   2. does not require adding another party over whom the court cannot acquire jurisdiction.
2. Exceptions. The pleader need not state the claim if:
   1. when the action was commenced, the claim was the subject of another pending action; or
   2. the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.
      • Analysis of 13(a)(1) Provides that a counterclaim is compulsory if it “arises out of the transaction or occurrence that is the subject matter of the opposing party's claims. (Must be asserted in the same action)
        • A counter claim can be compulsory from a different legal theory or different body of law
        • If you don't assert a counterclaim you waive your right to bring it up in a different court.
        • Exceptions
          • Provide that a counterclaim that would otherwise be compulsory need not be asserted if it is the subject of another pending action or if jurisdiction over the main claim is based on attachment rather than full personal jurisdiction over the defendant.
          • Counter claims that arise after the defendant files an answer need not be asserted under either rule because the defendant did not have the claim “at the time of service”
      • Section 1367(a) provides that if a federal court has SMJ over a case it may also hear other claims in that action that arise out of the same nucleus of facts, a compulsory counterclaim will meet this test.

(b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.

• Analysis of 13B
  • If a counterclaim is not compulsory it may still be brought as a permissive counterclaim.
    • A defendnets option to join unrelated counter claims under rule 13b mirrors a plaintiff's right under rule 18 a to assert unrelated claims together
  • Permissive counterclaims are allowed to achieve “global peace” but will likely be separated at trial. .
• King V. Blanton 4 Tests for “arises out of same transaction”
  1. Issue of fact and law are same
  2. Same evidence
  3. Logical relationship
     • Broadest test
  4. Would res judicata bar a subsequent suit.

(c) Relief Sought in a Counterclaim. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.

(d) Counterclaim Against the United States. These rules do not expand the right to assert a counterclaim—or to claim a credit—against the United States or a United States officer or agency.

(e) Counterclaim Maturing or Acquired After Pleading. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading.

(f) [Abrogated. ]

(g) Crossclaim Against a Coparty. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.

• Analysis of 13 G
  • Under rule 20a a suit may involve more than one plaintiff and defendant, in such cases plaintiffs or defendants may choose to assert claims against each other. Such cross claims against companies are authorized by rule 13G.

(h) Joining Additional Parties. Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.

(i) Separate Trials; Separate Judgments. If the court orders separate trials under Rule 42(b), it may enter judgment on a counterclaim or crossclaim under Rule 54(b) when it has jurisdiction to do so, even if the opposing party's claims have been dismissed or otherwise resolved.

14
(a) When a Defending Party May Bring in a Third Party.

1. Timing of the Summons and Complaint. A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer.
   • Analysis of 14(a)(1)
     • An Impleader addresses the situation in which a plaintiff's claim against the defendant triggers a right of the defender to be reimbursed by someone else if it pays the plaintiff's claim or part of it.
     • The defendant must allege that the new party is or may be liable to the defendant for all or party of amy judgment the plaintiff recovers from the defendant.
2. Third-Party Defendant's Claims and Defenses. The person served with the summons and third-party complaint—the “third-party defendant”:
   1. must assert any defense against the third-party plaintiff's claim under Rule 12;
   2. must assert any counterclaim against the third-party plaintiff under Rule 13a, and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g);
   3. may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and
   4. may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.
3. Plaintiff's Claims Against a Third-Party Defendant. The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g).
4. Motion to Strike, Sever, or Try Separately. Any party may move to strike the third-party claim, to sever it, or to try it separately.
5. Third-Party Defendant's Claim Against a Nonparty. A third-party defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it.
6. Third-Party Complaint In Rem. If it is within the admiralty or maritime jurisdiction, a third-party complaint may be in rem. In that event, a reference in this rule to the “summons” includes the warrant of arrest, and a reference to the defendant or third-party plaintiff includes, when appropriate, a person who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested.

(b) When a Plaintiff May Bring in a Third Party. When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so.

(c) Admiralty or Maritime Claim.

1. Scope of Impleader. If a plaintiff asserts an admiralty or maritime claim under Rule 9(h), the defendant or a person who asserts a right under Supplemental Rule C(6)(a)(i) may, as a third-party plaintiff, bring in a third-party defendant who may be wholly or partly liable—either to the plaintiff or to the third-party plaintiff— for remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of transactions or occurrences.
2. Defending Against a Demand for Judgment for the Plaintiff. The third-party plaintiff may demand judgment in the plaintiff's favor against the third-party defendant. In that event, the third-party defendant must defend under Rule 12 against the plaintiff's claim as well as the third-party plaintiff's claim; and the action proceeds as if the plaintiff had sued both the third-party defendant and the third-party plaintiff.