Saturday, May 17, 2014

Federal Rules of Civil Procedure Joinder Outline

Federal Rules of Civil Procedure, Statutes and Notes
 
(1)   PERMISSIVE JOINDER
 
R20(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 or 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.

R20(b) Protective Measures. The court may issue orders--including an order for separate trials--to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party.
 
R42 Consolidation; Separate Trials
(a) Consolidation. If actions before the court involve a common question of law or fact, the court may:
   (1) join for hearing or trial any or all matters at issue in the actions;
   (2) consolidate the actions; or
   (3) issue any other orders to avoid unnecessary cost or delay.

(b) Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, cross-claims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.
 
(2)   COMPULSORY JOINDER
 
R19 Required Joinder of Parties

(a) Persons Required to Be Joined if Feasible.
   (1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:
      (A) in that person's absence, the court cannot accord complete relief among existing parties; or
      (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:
         (i) as a practical matter impair or impede the person's ability to protect the interest; or
         (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
   (2) Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.
   (3) Venue. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.

(b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:
   (1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;
   (2) the extent to which any prejudice could be lessened or avoided by:
      (A) protective provisions in the judgment;
      (B) shaping the relief; or
      (C) other measures;
   (3) whether a judgment rendered in the person's absence would be adequate; and
   (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

(c) Pleading the Reasons for Nonjoinder. When asserting a claim for relief, a party must state:
   (1) the name, if known, of any person who is required to be joined if feasible but is not joined; and
   (2) the reasons for not joining that person.

(d) Exception for Class Actions. This rule is subject to Rule 23.
 
(3)   INTERVENTION
 
R24 - Intervention

(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:
   (1) is given an unconditional right to intervene by a federal statute; or
   (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

(b) Permissive Intervention.
   (1) In General. On timely motion, the court may permit anyone to intervene who:
      (A) is given a conditional right to intervene by a federal statute; or
      (B) has a claim or defense that shares with the main action a common question of law or fact.
   (2) By a Government Officer or Agency. On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party's claim or defense is based on:
      (A) a statute or executive order administered by the officer or agency; or
      (B) any regulation, order, requirement, or agreement issued or made under the statute or executive order.
   (3) Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.

(c) Notice and Pleading Required. A motion to intervene must be served on the parties as provided in Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.
 
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NOTES on R20, 19, and 24:
 
o   Purpose of R20: to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits. Single trials generally tend to lessen the delay, expense and inconvenience to all concerned. The impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.
 
o   Multiple claims and multiple parties can be joined using R20(a) when there is a “logical relationship” between the events and there is a common question of law or facts present (Mosley v. General Motors Corp.)
 
o   Differences in time, location, and persons involved can prevent joinder of discrimination claims (See Grayson v. K-Mart Corp., where 11Ps who had been fired as managers of K-Mart stores in different parts of the country sued alleging age discrimination. D moved to sever, and Ct. granted the motion b/c the employment decisions were made by 3 different regional managers and “derived within the context of each P’s store”)
 
o   Similarity of conduct to which Ps are subjected will not always insure joinder (see Baughman v. Lee County, where 27 Ps sued one D, alleging that their strip searches on different occasions in a two year period violated their constitutional rights)
 
o   Proof of causation is often a problem in cases of exposure to potentially dangerous products (e.g., asbestos, tobacco, or pharmaceutical drugs). See Insolia v. Philip Morris, where 3 Ps suffering from cancer sued 5 tobacco companies alleging a conspiracy to suppress adverse health reports and hide the dangers of smoking. Ct. severed the claims b/c there was no showing that “each P has been induced to act by the same misrepresentation.”
 
o   Misrepresentation and conspiracy are difficult to fit into the “same transaction” requirement of R20(a). =>Medical and legal causation present a problem for permissive joinder under R20. Watch out for unique facts that would be required to show causation for each P.
 
o   Market Share Liability theory (applicable in NY, CA): absent proof of identity of the manufacturer, P could sue Ds who had together manufactured a “substantial share” of the harmful drug (DES), and the burden of proof would then shift to Ds to exonerate themselves. If Ds fail, they would shoulder liability to the extent of their % share of the market (see Sindell v. Abbott Laboratories)
 
o   Joint Trial vs. Consolidation (R42)
-          Joint trial: 2 cases but 1 trial, and separate discovery, which could be problematic b/c D1 is a stranger to D2, so they cannot be present during depositions by P); it’s hard for Ds to strategize. On the other hand, each D will have some procedural advantages of a separate pre-trial proceeding (e.g.,  peremptory strikes in jury selection) (see Stanford v. Tennessee)
-          Consolidation: claims joined into 1 case and shared discovery (see Mosley and Stand’N’Seal)
 
o   Applicability of R19 is subject to two issues: 1) is the person subject to service of process (in personam jurisdiction), and 2) diversity of citizenship (does bringing another person destroy diversity).
 
o   R24(a) would allow a party to intervene if it has “unconditional right” to intervene given by fed. law, or if:
1)      interest
2)      possible impairment to it
3)      no adequate representation of the interest by existing parties
 
o   Notes on Interest:
-          the general RULE is that it must be a “significantly protectable interest” (Donaldson v. United States,
where Ct. found that an intervenor did not have such interest when he tried to object to gov’t obtaining    
records of his compensation from his employer)
-          A significant interest can be of recreational or aesthetic nature; it may also be concerned with an intervenor’s commercial or financial well-being (Animal Protection Institute v. Merriam)
-          A financial or economic interest alone may not justify intervention; however, it may be required to differentiate it from an interest based on purely social, political, or moral concerns (see Allard v. Frizzel)
-          Being within a “zone of interests” intended to be protected by a statute would satisfy the interest test (NOPSI case, see p. 68 – the rate payers are not parties to the contract; their interest is adequately represented by NOPSI in this litigation)
-          Protecting property value constituted a protectable interest that members of the community could claim when they sought to intervene in a suit challenging a city ordinance imposing a moratorium on construction of the abortion facilities (Planned Parenthood v. Citizens for Community Action). But anti-abortion views alone would not suffice (Keith v. Daley)
-          Being affected by possible changes in the challenged admissions procedure at a university could constitute a protectable interest and justify intervention (Grutter v. Bollinger)
 
o   Notes on Standing for Intervention (p.70):
-          Article III requires fed. courts to exercise jurisdiction only over “cases or controversies.” The standing test focuses on whether plaintiffs have suffered “injury in fact.” Courts have different standards on whether potential intervenors have a standing to intervene – some have a flexible standard (e.g., future injury/ impairment satisfies the standing requirement – see Kleissler v. U.S. Forest Service), some have more rigid standard (R24 cannot abrogate Article III standing requirements or expand fed. courts’ jurisdiction – see Mausolf v. Babbit)
-          2d, 5th, 6th, 9th, 10th, 11th Circuits: independent standing is not required for intervention under R24
-          7th, 8th, and D.C. Circuits: require standing standard met in intervention under R24
 
o   Notes on Adequate Representation (p. 72):
-          When a state or officer charged by law with representing the interest of the proposed intervenor is a party, there is a rebuttable presumption of adequate representation (Animal Protection Institute case)
-          Disparate interests between the parties and an intervenor may be sufficient to challenge adequacy of representation – they don’t have to be adverse or in direct conflict. Id.
-          The mere possibility that a party may at some future time enter into a settlement cannot alone show inadequate representation (United States v. Carpenter)
-          An intervenor’s right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Article III (Diamond v. Charles, where Ct. held that an intervenor in the abortion law case could not pursue an appeal after the principal defendant decided not to appeal)
 
§  Intervention requires a timely motion (R24(a) and (b)) – 4 factors to judge timeliness (Stallworth v. Monsanto):
1)      Time the intervenor knew or should have known of its interest in the case
2)      Prejudice to existing parties resulting from the delay in seeking intervention
3)      Prejudice to the intervenor if intervention is denied, and
4)      Unusual circumstances militating for or against a finding of timeliness

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