Civil procedure January 28

1. Civil procedure January 28 Rules 18 and 20

2. Review • Rule 9 requires specificity when pleading fraud and mistake because of the potential of reputational harm, desire to avoid in terrorem suits and because plaintiff usually has the specific information in these cases

3. Expanding the Dispute • Things have changed from the day of the writ. Many of the barriers to claims involving multiple plaintiffs and defendants and multiple claims have disappeared. The rules governing just how broad all of this can be are Rules 18 & 20.

4. Rule 18 – Joinder of Claims • Query: Must plaintiff’s complaint contain every possible claim she has against a defendant?

5. Key concept • Plaintiff is master of his or her complaint • Plaintiff chooses which parties and claims to join (but claim and issue preclusion may impact strategic decisions – cross reference for later in the course)

6. Rule 18 • What is the rule about joining claims? Any limits in the rule about what can be joined? • Note: Rule 42 allows a court to sever the claims if the case will be too unwieldly • What’s the main issue going to be in a joinder of claims problem?

7. CB prob. 1 – p. 733 • Ann (IL citizen) v. Barbara (IL citiz) for violation of fed’l civil rights statute in firing her. Ann seeks to add state law claim based upon state wrongful discharge law. May she do it? (2 part analysis – what two rules/statutes are implicated)

8. #2 P. 733 • Ann (IL ) v. B (IL) federal civil rights violation in firing her. Ann seeks to add state law claim alleging B caused her injuries when her car backed into A’s car in the company parking lot. Can these claims be joined in federal court?

9. #3 • An (IL) v. Barb (IL) alleging violation of fed’l rights statute by allowing co-workers to engage in sexual harassment. Ann wants to join Charles, co-worker who engaged in harassment under state tort law. (assume joinder is ok under R. 20 and it’s only a r. 18 problem – is it ok under supp juris – 1367(a)?)

10. #4 p. 734 • Ann (IL) v. B (WI) for breach of contract (damages in excess of $75,000. • Ann seeks to join Charles (IL) alleging Charles conspired in the breach. (meets R. 20 requirements) • Can she join her claim v. Charles?

11. #5 p. 734 • In a federal civil rights claim based upon sexual harassment occurring in a plant in WI – Ann (IL) v. Barbara (WI) & Charles (IL). Can the parties be joined in this suit? If the suit is filed in IL, what’s the potential problem?

13. Joinder of Parties • What Rule governs joinder of parties?

14. ?s you should ask self every time you study a new rule • What does Rule 20 require when joining plaintiffs or defendants? (Rule’s requirements) • What’s the policy underlying R. 20? (policy) • The court retains discretion to order separate trials even if R. 20 applies. What factors does the court take into consideration in exercising its discretion to order separate trials? (exceptions)

15. Mosely v. GM • What’s the issue in this case? • What are the relevant facts (i.e. what are the various plaintiff’s claims v. GM & UAW)

16. Moseley cont’d • What’s this Court’s test for single t/a or occurrence under R. 20? • Argue for GM as to why these claims do not involve a single t/a or occur; argue for plaintiffs as to why they do involve a single t/a or occur

17. Moseley • Second prong: a question of law or fact common to all parties will arise in the action. Note that the plaintiffs were: • 1. African Americans who had not been promoted; • 2. African Americans who had not been hired • 3. Women who had not been hired • 4. African Americans who had been fired • 5. African Americans and women who didn’t get the same relief time as white males. • Argue for GM why these do not have a common ? Of law/fact; Argue for plaintiffs as to why they do have a common ? Law or fact

18. Query • Tactically – why did the plaintiffs’ lawyers want to join all these claims? Why did GM want them separated? • What would have happened if the court had found joinder improper?

19. HYPO • A& B are injured when C crashes her car into a tree. May A&B join their claims in the same suit against C? • A is a passenger in B’s car. She is injured when B&C collide in a car accident. May A join both B&C in a suit for damages? • Assume A does not want to sue B because suing him destroys diversity. May A sue only C?

20. Hypo • A (IL) suffered severe head injuries when D (GA) crashed into him while A was visiting family in Georgia. The ambulance that came to the scene got into a wreck while driving A to the hospital increasing A’s injuries. Can A sue both D and the ambulance driver as defendants?

21. Brief overview of Rule 19, 22 & 24 • Lecture to give you passing familiarity – just responsible for content of lecture

22. Rule 19 • This rule allows court to order parties to be joined when their absence will either materially reduce the likelihood that the court can provide justice for those already parties or where their absence will be detrimental to the non parties themselves. (next slide gives hypos)

23. Examples of when need R. 19 • E.g. – A&B have a contract with C. C fails to perform. A sues C. Is B a necessary party (what if B prefers $ damages b/c B has found someone else to do the work) • Or – A&B &C are joint owners of property. C sues for partition of the property but only sues A. Any decision necessarily will impact B. The real Ms. Caryl Warner (wife 1 sues phone company for listing husband’s second wife as Mrs. Caryl Warner). What happens if court order phone company to stop listing wife 2 as Mrs. Caryl Warner)

24. R. 19 • If court determines someone is necessary to action, the court may order that person to be joined as a party. BUT – if the missing party cannot be joined b/c of jurisdictional issues – the court must then consider whether the case can move forward w/out the missing party. The court does a balancing test looking at the interests of the absentee, the existing parties, and whether there is some way to protect the missing party

25. Rule 24 -Intervention • Opposite of R. 19 is when someone is left out and wants to be included – the may ask the court to include them as a party b/c they feel that the case has a potential impact upon them and that their interests are not adequately represented. (See next slide for example)

26. Rule 24 example • In case in which environmental group sued the Nuclear Regulatory Commission and certain mining interests to have the court determine whether certain expensive administrative procedures must be followed in all mine applications. Mining companies not involved in the suit sought to intervene b/c the rule of law determined in that case could impact them and they felt that the existing plaintiff might settle or agree to a judgment that would adversely impact the other companies in future applications.

27. Rule 22 = Interpleader • This rule allows a person to avoid the risk of multiple liability by requiring two or more people with actual or prospective claims to assert their respective ADVERSE claims in a single action • E.g. Bank A risks double liability by holding a deposit to which B and C have potential conflicting claims. Bank A, as the stakeholder may bring an interpleader action against B & C as claimants (making B and C litigate who is entitled to the $)

28. Summary Rule 19 – you need to add someone in order for the existing parties or the missing party to be fully protected and all the issues fully decided (NOTE: DOES NOT APPLY TO JOINT TORTFEASOR CASES) R. 22 – I have no dog in this fight (interplead) R. 24 – I have a dog in this fight and you didn’t invite me to participate