Here we explore the exceptions to
the rule that "plaintiff is the master of his claim." I.e., it is up to
the plaintiff to decide who the parties to the lawsuit will be and which
claims will be asserted. In its simplest form, a lawsuit has a single
plaintiff asserting a single cause of action against a single defendant.
The common law rarely deviated from this form and had strict rules
regarding joinder of claims and parties.
The Rules Regarding Joinder
Are Liberal
Modern procedural rules allow
a party to join as many claims,
counterclaims, cross-claims, and third party claims as he has
against another party. Under the Federal Rules, the categories known
as causes of action are done away with altogether. Parties may add as
many claims as they wish. (See
FRCP 18) The only restriction on joinder of claims in the federal
courts is imposed by subject matter jurisdiction limitations. Thus in
federal courts, each claim generally must have an independent basis
for
subject matter jurisdiction.
Personal jurisdiction and venue also must be proper as to each
claim. (Friedenthal § 6.6)
|
Joinder of Parties
FRCP 20 deals with permissive joinder of parties. The plaintiff has
the option whether to join a party if the tests of Rule 20 are met. Rule
20(a) applies to joinder of both plaintiffs and defendants. It creates
two tests for joinder. 1) There must be some question of law or fact
common to all parties which will arise in the action. 2) There must be
some right to relief asserted on behalf of each of the plaintiffs and
against each of the defendants, relating to or arising out of a single
transaction or occurrence or series of transactions or occurrences. These
tests are cumulative and both of them must be satisfied to permit joinder.
(Wright, §71) The purpose of Rule 20 is to promote trial convenience and
expedite the final determination of disputes, thereby preventing multiple
lawsuits.
Impleading Third Parties
FRCP 14 provides that a defendant can bring in as a third party
defendant one claimed by the defendant to be liable to him for all or part
of the plaintiff's claim against the defendant. The rule is not
mandatory; defendant may refrain from impleader and assert his claim
instead in an independent action if he prefers. (Wright, §76) In order to
satisfy
FRCP 14(a), any liability of a third-party defendant must necessarily
be secondary or derivative to the liability of the original defendant.
Impleader seeks to assert a claim
against someone who is not already a party to the action. It must involve
a transfer of liability based on the plaintiff's original claim.
Impleader of a third party because he is directly liable to the plaintiff
in the original action is forbidden. E.g., a defendant sued for
negligence cannot implead a third party whose negligence was totally
responsible for plaintiff's injury. (Friedenthal §6.9)
An example from Glannon: "A police officer
assaults Dillinger in the course of arresting him for robbery.
Dillinger sues Officer Hayes, a 6'2", red-headed policeman for the
assault. Hayes claims mistaken identity: it was actually Officer
Kelly, another 6'2" redhead, who arrested Dillinger. [Can Hayes
implead Kelly?] Hayes cannot implead Kelly. He has no claim that
Kelly is liable to him. Either one or the other assaulted Dillinger;
one or the other will be solely liable to him. Hayes contends of
course that Dillinger should have sued Kelly instead of him, but this
gives him no right to substitute another defendant or to add one under
Rule 14. That rule does not allow defendants to suggest new targets
for the plaintiff." (Glannon,
Civil Procedure p. 151) I.e. Rule 14 cannot be used to foist
alternate defendants on the plaintiff.
|
Glannon, Examples & Explanations
|
Where a third party has been properly brought in,
plaintiff may, if he chooses, assert directly against the third party
defendant any claim he may have against him arising out of the transaction
or occurrence that is the subject matter of the plaintiff's claims against
the original defendant provided that there is complete diversity between
plaintiff and the newly added party. (FRCP
14(a);
28 U.S.C. § 1367.) Joinder of parties and claims in federal court
always raises two questions. Is the particular joinder procedurally
proper? Is it jurisdictionally proper? If Larry of New York and Moe of
California are injured when the car in which they are riding is hit by a
car driven by Curly of New York, they could join as plaintiffs in a suit
against Curly. The joinder would be procedurally proper under
FRCP 20. It would fail jurisdictionally, however, because of the
requirement of complete diversity. Although
FRCP 14(a) authorizes joinder of claims the plaintiff has against the
third-party defendant if those claims satisfy the same transaction or
occurrence test there must also be complete diversity between the
plaintiff and the newly added third party. The Federal Rules do not
expand the jurisdiction of the federal courts. (FRCP
82) A claim by an original plaintiff against a non-diverse third
party defendant is not within the court's
ancillary jurisdiction. (See,
Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365 (1978).)
FRCP 14 makes very generous provision for impleading third parties and
for assertion of claims on all three sides of the resulting lawsuit.
While a great deal is thus procedurally proper, the limitations of
jurisdiction do not always permit claims to be freely asserted. (Wright,
§ 76)
Reconciling Rules 13, 14, & 18
FRCP 18 authorizes the joinder of all claims a party may have against
any opposing party. The only limitations on joinder are those of subject
matter jurisdiction. Recognize that Rule 18 kicks in once one already has
at least one or more narrowly defined cross-, counter- or third party
claims. At that point Rule 18 permits the pleader to join with it various
other unrelated claims, though the pleader must also come up with an
independent jurisdictional basis. I.e., Rules 18 and 13 authorize
parties, once they are properly joined in a lawsuit, to assert additional
claims against opposing parties.
FRCP 13 authorizes a defending party in a suit to assert claims back
against a party who has claimed against him. Such claims may be either,
compulsory (13(a) or permissive (13(b).) But bear in mind while a
compulsory counterclaim need not have an independent jurisdictional basis
(it is by definition within the court's ancillary jurisdiction) a
permissive counterclaim must have an independent jurisdictional basis.
FRCP 14, gives a defendant a limited right to implead (i.e. bring into
the suit) strangers against whom he has claims related to the main
action. Under the rule the defendant may bring in a person who may be
liable to the defendant for all or part of any recovery the plaintiff
obtains in the main claim. (Glannon p. 149)
FRCP 18(a) allows a defendant to add on any independent claims against
a properly impleded third-party defendant. I.e., once a defendant has
asserted a claim suitable for impleader under Rule 14(a), he may join with
it all of his other claims against the third- party defendant. However,
there must be an independent basis for federal jurisdiction of the
additional claims unless they arise out of the same transaction or
occurrence as the original claim, and thus can be considered to be within
the ancillary jurisdiction of the court. (Wright, §76)
Compulsory Joinder of Parties
FRCP 20 deals with permissive joinder of parties. The plaintiff has
the option to join a party if the tests of Rule 20 are met. However,
under
FRCP 19, there are some instances where parties must be joined. This
compulsory joinder of parties is an exception to the usual practice that
leaves a plaintiff free to decide who shall be the parties to his
lawsuit. Whether a party must be joined is determined by whether the
party is classified as merely necessary or on the other hand
indispensable.
Necessary parties are those parties who must be
joined if feasible but whose nonjoinder will not result in dismissal.
Indispensable parties are those parties whose joinder will be compelled
even at the cost of dismissing the action. I.e., parties in whose absence
the court cannot proceed. The label "indispensable" is used if the action
should be dismissed unless the party is joined. The label "necessary" is
used if the party is one who ought to be joined if this is possible.
(Wright, § 70) If it is not possible the action may nevertheless
proceed.
FRCP 19(b) contains the standards a court should apply in determining
whether a lawsuit should go forward in the absence of a necessary party.
(Martin
v. Wilks, 490 U.S. 755,(1989) It consists of a four part test.
(1) the court must determine whether "a judgment rendered in the person's
absence might be prejudicial to him or those already parties" (2) Whether
the court can reduce or eliminate prejudice by "the shaping of relief or
other measures." (3) whether the judgment rendered without the outsider
will be "adequate." (4) the court must consider the costs to the
plaintiff of a dismissal for nonjoinder. (Friedenthal § 6.5)
In
Provident Tradesmens Bank & Trust v. Patterson, 390 U.S. 102
(1968) the 3rd Circuit reversed a verdict for plaintiffs and dismissed
their suit on the ground than an interested absentee had not been joined
at trial. The losing defendant had never objected to the nonjoinder. The
Supreme Court held that the absentee was not an indispensable party, in
part since by the time the case had reached the appellate level, it had
become clear that the absentee had not been prejudiced by his nonjoinder
in the action. Therefore, it was unreasonable for the court of appeals to
dismiss the action on the ground that the nonparty should have been joined
because his interests were in potential peril. (Friedenthal § 6.5)
Intervention
Intervention is the procedure that permits someone who is not a party
to an action to enter the lawsuit in order to protect his interests.
Rules governing intervention seek to balance two competing policies:
(1) The interest of the legal system in insuring
adequate representation to those who are not parties to an action but who
have an interest that may be affected by its outcome, and
(2) The interests of the initial parties, who
bear the primary expense of the litigation, in the prompt disposition of
their claims and defenses. I.e., intervention is a procedure whereby one
not made a party can protect himself from being excluded from an action
that might be detrimental to him. (Wright, §75)
FRCP 24 distinguishes between intervention as of right and
permissive intervention.
OF RIGHT When intervention is of right, there is
an implicit judgment that the nonparty's right to participate should
predominate. Note that
FRCP 24(a)(1) recognizes that a statute may grant the right to
intervene. E.g.,
28 USC §2403 gives the United States the right to intervene when the
constitutionality of a statute is challenged.
PERMISSIVE When intervention is declared to be
permissive only, the court first must ascertain whether the interests of
the original parties will be prejudiced by allowing the outsider access to
the litigation. [See
Rule 24(b)]; (Friedenthal §6.10)
A person is entitled to intervene when his
position is comparable to that of a "necessary" party as defined by
FRCP 19(a). If the stranger would be substantially affected in a
practical sense by the determination made in an action, he should, as a
general rule, be entitled to intervene. (Advisory Committee Note to Rule
24.)
Class Actions
The class action is a device by which a group of
persons (usually plaintiffs) who are similarly situated may band together
for purposes of litigation. They may have suffered similar common
injuries which would be economically unfeasible to pursue individually, or
a common issue of law or fact may determine the validity of their claims.
The class action provides a method whereby a group of people may redress
their individual injuries (provided they have something in common) which
would otherwise be too small to warrant separate lawsuits. I.e., class
actions permit the plaintiffs to pool claims which would be uneconomical
to litigate individually. (Phillips
Petroleum v. Shutts, 472 U.S. 797 (1985).)
Determining whether a lawsuit should be treated
as a class action is a two stage process. 1. Are the prerequisites of
FRCP 23(a) met? 2. Does the lawsuit fall within the definition of
one of the permissible types of class actions listed in
FRCP 23(b)? (Friedenthal, § 16.2)
Four Prerequisites to the Maintenance of a
Class Action Under
FRCP 23(a):
1. The class is so numerous that joinder of
all members is impractical. (Numerous parties)
2. There are questions of law or fact common
to the class. (Common question)
3. The claims or defenses of the
representative parties are typical of the claims or defenses of the
class. (Typicality) (Typicality = lack of antagonism among claims and
defenses of representatives and class members and overlaps with the
next requirement.) (Friedenthal § 16.2)
4. The representative party will fairly and
adequately protect the interests of the class. (Adequate
representation)
|
Subdivision (b) of Rule 23 in defining three
different types of class actions describes additional elements which must
be present.
Rule 23(b)(1) provides for maintenance of a class action where the
prosecution of separate lawsuits by individual members of the class would
create a risk of inconsistent or varying adjudications. I.e., permits a
class action if individual suits would result in prejudice to the party
opposing the class or to the members of the class itself. (E.g., recovery
is sought from a limited common fund.)
Rule 23(b)(2) provides for maintenance of a class action where a party
has taken action or refused to take action with respect to a class and
final relief of an injunctive nature, settling the dispute with respect to
the class as a whole is appropriate. (E.g., imposition of a regulatory
scheme that affects all members of the class.)
Rule 23 (b)(3) provides for maintenance of a class action where
questions of law or fact common to the members of the class predominate
over any questions affecting only individual members, and a class action
would achieve economies of time, effort and expense. (Claims for money
damages.)
The criteria set out in subdivision (b) are
alternative rather than cumulative; once the four requirements of
subdivision (a) are met, only one of the three subsections of subdivision
(b) need be satisfied for the class action to proceed.
In summary, there must be a definitely
ascertainable class, with common interests in a cause, the members
comprising the class must be so numerous that it would be impracticable to
bring them all in as parties, and those who undertook the suit must afford
adequate representation for the non-parties.
How do the
diversity
jurisdiction requirements apply to class actions? Only the
citizenship of the named representatives is to be considered, it is no
objection to jurisdiction that other members of the class, not named as
parties, are of such citizenship that would defeat diversity. Similarly,
for purposes of venue, only the residence of the named parties is
considered. Amount in controversy is a different matter. Class
actions are unavailable in diversity cases unless an amount in excess of
$75,000 is in controversy. Thus a large class of plaintiffs who have
small claims cannot aggregate their claims to satisfy the
amount in
controversy requirement. Although the named representatives have
claims for more than $75,000, the action cannot go forward as a class
action on behalf of absentees whose claims are for less than that amount.
Each plaintiff must satisfy the jurisdictional amount and any plaintiff
who does not must be dismissed from the case. One plaintiff may not ride
on the other's coattails. (Wright §72)
Joinder of Claims
Any claim that a defendant has against a
plaintiff may be asserted as a counterclaim. Counterclaims are either
compulsory or permissive. Counterclaims that arise out of the
same transaction or occurrence as plaintiff's claim are classified as
compulsory, that is, it must they asserted in the same lawsuit brought
by the plaintiff or it is forever barred under principles of res judicata.
(FRCP
13(a).) Permissive counterclaims are those that are completely
unrelated to the plaintiff's original claim. (FRCP
13(b).) They are allowed under the theory that once the defendant is
brought before the court he should be allowed to settle all his claims
against an opponent without the necessity of a second lawsuit. However
permissive counterclaims must have an independent jurisdictional basis.
Real Party in Interest
The real party in interest requirement insists
that the named plaintiff possess, under the governing substantive law, the
right sought to be enforced. The real party in interest need not be the
person who ultimately will benefit from the successful prosecution of the
action.
FRCP 17(a) provides that "every action shall be prosecuted in the name
of the real party in interest."
Capacity to Sue or be Sued
Capacity to sue or be sued refers to an
individual's ability to represent her interests in a lawsuit without the
assistance of another. (E.g. a plaintiff may possess the legal right
under the substantive law but be barred from suing because her age
indicates a lack of capacity. Incapacity falls into 2 categories: (1)
Incapacity based on physio-psychological condition. (e.g. infants or the
mentally infirm) (2) incapacity due to organizational status or legal
relationship. e.g. labor unions or receivers.) (Friedenthal § 6.3)
|