Civil Procedure 2

js5389's version from 2015-12-10 20:30

Counterclaims and Crossclaims


Question Answer
Rule 13(a)
Compulsory Counterclaim Test1. Are the issues of law and fact raised by the claim and counterclaim largely the same?
2. Would res judicata (see below) bar a subsequent suit on ∆’s claim absent the compulsory counterclaim rule?
3. Will substantially the same evidence support or refute π’s claim as well as ∆’s counterclaim?
4. Is there any logical relation between the claim and the counterclaim?
Rule 13(b)
Rule 13(g)


Question Answer
Wigglesworth v. Teamsters FactsW sues T’s in federal ct for restricting his freedom of speech at a meeting by beating him up; T’s issue a general denial (8(b)(1) and then counterclaim against W for defamation in state court for talking about the beat-down months later.
Wigglesworth v. Teamsters HoldingHolding: ∆’s counterclaims were “permissive;” granted π’s motion to dismiss the counterclaims due to lack of subject matter jurisdiction.
- This is the wrong solution; ct obviously doing it to prevent thugs from suing their victim
Bose standarddoes the same evidence support or refute both claims
Problems with WigglesworthParties are scared now that if they don’t make a counterclaim and it later turns out to be compulsory, they’ll be precluded, so they just dump everything in there at once
- Ends up being really inefficient – claims get litigated that might otherwise lay dormant


Claim Preclusion


Question Answer
Four Requirements of Claim Preclusion1. Final judgment
2. On the merits
3. Claim must be the same in 1st and 2nd suits
4. Parties must be same, or in privity, or in legal agreement with each other
- “Privity” – a person in privity with another is a person so identified with another that he represents his legal rights
- In order to be claim precluded, you need to have had your day in court! Importance of privity if you are not in privity with the previous party, you can’t be considered to have had your day in court!
Exceptions to a res judicata defense1. Intervening change in law: If there was a law at T1 that foreclosed Jones’ ability to enforce his patent rights, but that law was later changed so that those rights are now enforceable, Jones is not precluded at T2
2. Intervening change in fact: If Jones’ patent was pending at T1 but is later approved, Jones may sue Smith again at T2 on the same patent claim b/c the facts have changed
Rush v. Maple Heights Factsπ got into motorcycle accident; sustained personal injuries and property damage. Brought property suit first, recovered $100, then brought personal injury suit for much more money and said that the city was precluded from contesting liability b/c it had already been found negligent in the first suit.
Rush v. Maple Heights HoldingCt said that π was barred from filing a second suit b/c her 2nd claim was transactionally related to her 1st
Manego v. Orleans Board of Trade Facts: π was black guy who owned a roller rink on Cape Cod and was denied basically every permit he needed to make it profitable. Sued Willis, bank, and BoS for racial discrim and lost; then dropped BoS and sued Willis, bank, and BoT under Sherman antitrust act.
Manego v. Orleans Board of Trade HoldingCt says Manego is precluded from bringing this suit against Willis and bank b/c his 2nd claim arises out of the same series of transactions or occurrences that gave rise to his 1st claim!
Manego v. Orleans Board of Trade Holding Description of Transaction
Taylor v. Sturgell FactsAt T1, Herrick v. Sturgell – H issued FOIA request for plans for an airplane; court says no. At T2, Taylor v. Sturgell – T and H are buddies, both want the same plans for the same plane, using the same lawyer, asserting the same claims. ∆’s say T is precluded b/c he was “virtually represented” by H.
Taylor v. Sturgell HoldingUnanimous opinion that T is not precluded b/c T was not party to the first suit and T and H are not in privity!
Taylor Exceptions1. Agreed to be bound by the determination in an action between others (“test case”)
2. A “substantive legal relationship” with the first π (i.e. privity).
3. “Adequate representation” in the first case
4. “Assumed control” of the original litigation (e.g. subrogation)
5. Agreed to be a designated representative (acting as an agent of the precluded party)
6. Been expressly foreclosed by “a special statutory scheme [which] may ‘expressly foreclose successive litigation by non-litigants… if the scheme is otherwise consistent with due process.’” [i.e. bankruptcy]

Issue Preclusion


Question Answer
Blonder-Tonguea π can be bound to a judgment in subsequent cases if:
- π lost in the initial case
- π lost on the merits
- π had a full and fair opportunity to assert the claim
- The factual determination was necessary to the outcome of the case
— The “death knell” of the mutuality of obligation doctrine
— Makes sense b/c we consider the π to be the “master of his own fate” – choose the forum, the claim, etc
Parklane Hosiery v. Shore FactsParklane had already lost a case against the SEC, sued for damages arising out the same conduct by Shore (Parklane’s shareholders) in a private civil suit can Parklane be bound to the litigated factual findings of the adverse SEC judgment at T1 in a subsequent civil case at T2 arising out of the same course of conduct?
Parklane Hosiery v. Shore Holdingallowed issue preclusion against a losing defendant for the 1st time
Parklane court’s concerns (if either of these are present, NO issue preclusion)1. “Wait and see” π’s
- “Strategic sideliners” – these π’s watch how suits go, and if the first π succeeds, they jump in and try to estop the ∆ from using the same defense against him (“using collateral estoppel as a sword”)
- If the court determines that a subsequent π is doing this, it will not allow π to estop ∆ from using the prior defense
2. ∆ not having a fair procedural, substantive, evidentiary opportunity
- Court wants to ensure ∆’s DP rights are protected!

Parties and Joinder

Permissive Joinder


Question Answer
Rule 20
Rule 19
Rule 22
28 USC 1335
Rule 42(b)


Question Answer
SMU v. Wynn & JaffeAnonymous A-D π’s wanted to sue along with SMU
Kedra v. City of Philadelphia FactsConspiracy claim against PA cops – all the cops beat up all the Kedras
Kedra v. City of Philadelphia Holdingkeep default position (joinder) until after discovery between parties there hasn’t been any prejudice yet! Once discovery has been completed, present what you have to judge at Rule 16 pretrial conference and he’ll decide if joinder is ok or too prejudicial to ∆’s based on that info!
Insolia v. Phillip Morris Factso 3 smokers who really had nothing in common with one another sued a bunch of different companies; ct has more info about the facts of their claims b/c π’s tried to get 23(b)(3) class certification and failed
Insolia v. Phillip Morris HoldingIt would be prejudicial to ∆’s to proceed with π’s claims jointly ct knows more facts here than in Kedra, so this holding is appropriate to the case

Required Joinder


Question Answer
Rule 19(a)
Rule 19(b)
Rule 12(b)(7)


Question Answer
Rule 19(a) test1) Complete relief cannot be accorded without the absent party
2) The absent party has an interest that will be impaired by the litigation
3) ∆ may be exposed to inconsistent obligations if absent party is not joined
- This is NOT inconsistent judgments (you can pay one π but not another) – this means if the ct is asking you to do something practically impossible (like injunction in 1 case, but not in the other)
Rule 19(b) test(1) Whether a judgment rendered in the party’s absence might prejudice that party or existing parties,
(2) If prejudice could be lessened by injunctions or other measures
(3) If a judgment rendered in the party’s absence would be “adequate,”
(4) Whether the π would have an adequate remedy if the case were dismissed
Rule 19(b) Balancing TestΠ’s interest
∆’s interest
Absentee’s interest
Public’s interest


Question Answer
Pulitzer-Polster v. Pulitzer FactsNiece (Carol) sues uncle (Sam) in federal court b/c state court is taking too long; ∆ files 12(b)(7) motion to dismiss for failure to join a required party under Rule 19
Pulitzer-Polster v. Pulitzer HoldingCarol cannot bring this federal claim in equity and good conscience – dismissed under Rule 19(b)

Real Party in Interest


Question Answer
Rule 17(a)


Question Answer
VEPCO v. Westinghouse FactsVEPCO lost tons of money as the result of ∆’s power station failing. It recovered much of its losses from its insurer, INA; after the payout, VEPCO still had an unreimbursed loss of $150,000. INA and VEPCO then executed a subrogation agreement, in which INA agreed to furnish all counsel and subrogated its own rights against ∆ to VEPCO. Note: INA and ∆ are both from PA, so INA’s joinder would destroy diversity jurisdiction.
- ∆’s moved to dismiss the suit with alternate motions: 1) under 17(a), INA was the real party in interest and therefore needed to prosecute the action; 2) INA was indispensable but could not be joined (b/c it would destroy diversity jurisdiction) under 19(a), so the suit should be dismissed under 19(b)
VEPCO v. Westinghouse HoldingCourt determined joinder was not feasible (19(b)), but that there would be no prejudice if INA were not joined and an adequate judgment and remedy could be rendered in INA’s absence, so they denied ∆’s motion



Question Answer
Rule 14


Question Answer
Motivations behind Rule 141. Efficiency concern – bringing these two suits together saves time and resources
2. Equity concern – temporal lag issue original ∆ found liable to π and has to pay; it will be a long time before/if ∆ can then get a judgment against the third-party ∆, and by the time he does, he may have gone bankrupt
- This happens in cases of insurance (A v. B; B v. Insurance – by the time B is able to recover under his policy, A may have already wiped him out!


Question Answer
Clark v. Associates Commercial Corp.,Facts: π (Clark1) put his tractor up as collateral on a loan he got from ∆. Π didn’t pay, so ∆ sent his thugs, Clark2, to go beat up π (Clark1). Π sued ∆; ∆ impleaded Clark2, saying they were liable under agency theory. Both π and Clark2 objected. Holding: Impleader was proper



Question Answer
Rule 22
28 USC 1335


Question Answer
State Farm v. Tashire FactsGreyhound bus collides with pickup truck on CA highway; 2 bus passengers were killed, 33 were injured. Passengers were a mix of Canadians and Americans from different states. The bus driver, and the two people in the truck (one of whom, Clark, was its owner) were all from OR. State Farm had an insurance policy with Clark that would pay out a max of $20,000 per single occurrence, but also committed them to defend him in every suit stemming from that occurrence (so they want to protect themselves from having to finance 40 different suits). State Farm brought an interpleader action in OR to consolidate all claims against Clark, saying that either Clark isn’t liable, or he is but the policy max is $20k so that’s all we can pay. Then Greyhound tried to file an interpleader suit.
State Farm v. Tashire HoldingGreyhound may not use an interpleader action here b/c “we cannot allow the tail to wag the dog” [why should this case v. Clark have so much pull when the case v. Greyhound will be worth so much more?] and interpleader was not meant “to be an all-purpose bill of peace;” interpleader may only be used in cases of a fixed pot that defines the absolute stake/outer bounds of the dispute
State Farm v. Tashire Takeaways1. Greyhound can’t join State Farm’s interpleader b/c they don’t have a fixed pot of potential damages  yes, they might end up having to pay a ton of money, and they might even run out, but that’s what bankruptcy is for!
2. Court’s interpleader ≠ bill of peace statement is not necessarily right – to the extent we care about finality, efficiency, and equity, it sort of is… (and def was at common law)



Question Answer
Rule 24


Question Answer
Pre-1966 Testwe looked to Sam Fox Publishing Co. v. United States
- This case said C has a right to intervene in A v. B if C would be precluded from bringing his own claim against the original party by res judicata
Current Testwe look to a public law v. private law distinction to help us measure the significance of a potential intervening party’s interest!
- When a case deals with a public interest, courts are more liberal in granting intervention, and the judges respond by attempting to give substantive content to public norms and manage litigation more closely b/c they understand that their decision has weight to it
- When a case deals with a private interest, courts are more restrictive in granting intervention, and the judges respond only to the interests and desires of the litigants


Question Answer
Cascade v. El Paso Natural Gas an interest does not have to be direct; you/the interest just have to be impaired by a judgment rendered in your absence
Donaldson v. U.S. taxpayer did not have right to intervene in a judicial enforcement proceeding seeking issuance of an IRS summons ordering production of business record of his employer. You can’t intervene when your interest isn’t sufficiently concrete. Narrows definition as interest is not sufficiently “protectable”.
TrbovichUnion Member challenging union election proceedings. Burden is on movant in intervention to show that representation by parties may be inadequate…but burden is minimal.
Allard v. Frizzell Birds? Not allowed/too remote. Too abstract of an interest.
Stringfellowsaid that a party can be granted an intervention of right for a particular purpose (ex: just intervene on a certain issue, not the whole claim). You wouldn’t be a full party, and you can’t appeal
NRDC v. NRC FactsNRDC = environmental group, NRC = gov’t agency that grants licenses to Uranium miners. Π is suing ∆ for an injunction to get them to stop issuing licenses b/c they think mining is bad for the environment. A party named United Nuclear, a mining company, has already successfully intervened on ∆ side; UN already has a license. NOW, Kerr-McGee (a large mining company with no license) and American Mining Congress (a small mining company with no license) each seek to intervene pursuant to Rule 24.