Justice Miers?

This morning at 8 a.m., President Bush announced he was nominating White House Counsel Harriet Miers to the United States Supreme Court

CIVIL PROCEDURE CLASS 18

Professor Fischer

Columbus School of Law

The Catholic University of America

October 3, 2005

WRAP-UP OF LAST CLASS We discussed the rules for adding claims against

existing parties (cross-claims and counterclaims) (FRCP 13)

REMINDER – big picture - JOINDER

RULE 13(h)

Allows additional parties to be joined to a counterclaim or cross-claim under Rules 19 or 20

Rule 13(i)

Provides for separate trials (R. 42(b))/or and separate judgments (R. 54(b)) on counterclaims or cross-claims due to the potential of such claims to confuse juries

Note R. 42(b) provides for separate hearings in the same trial; severance of parties under R. 21 will result in separate trials as will exercise of court’s discretion under R. 20(b)

FRCP 14: IMPLEADER

What is IMPLEADER (also known as third party practice) and what is its PURPOSE?

FRCP 14: IMPLEADER

What is the defendant called in third-party proceedings?

THIRD-PARTY PLAINTIFF (TPP)What is the impleaded person called? THIRD PARTY DEFENDANT (TPD)

DISTINGUISING IMPLEADER,

From COUNTERCLAIMS?From CROSS-CLAIMS?

Who can be joined under FRCP 14?

Persons, not already parties, who, under applicable law, may be obligated to reimburse the D .

What are some examples?e.g. tortfeasor seeks contribution or indemnity

from others who may be liable to P if D is found liable but whom P has not sued

OR someone not a party who has acted a a guarantor of a transaction and who will be liable under the guarantee if D is found liable

MUST SUCH PERSONS BE JOINED?

HYPO

Assume the Massachusetts contribution statute applies. Souter is involved in a car accident with two other drivers, Scalia and Roberts. Souter sues Scalia for negligence. Can Scalia implead Roberts on the basis that his negligence also caused Souter’s injuries?

HYPOTHETICALAssume the Massachusetts contribution

statute applies. Souter is involved in a car accident with two other drivers, Scalia and Roberts. Souter sues Scalia for negligence. Can Scalia implead Roberts on the basis that it was Roberts who was negligent, not Scalia?

SERVICE REQUIREMENTS

Hypo: Souter is involved in a car accident with two other drivers, Scalia and Roberts. Souter sues Scalia for negligence. Scalia wants to implead Roberts on the basis that his negligence also caused Souter’s injuries.

Advise Scalia as to what rule governs service and filing of a third-party complaint.

Timing of Impleader Claims

At what stage of the action can a third -party complaint be served?

At any time (14(a))When is the leave of court required? If third-party complaint is filed more than

10 days after answer is served

GROSS V. HANOVER INSURANCE CO.

Who did defendants seek to implead and for what claims?

This is a subrogation claim. What does that mean?

Relation of third-party claims to original claim

Can a D make a third-party claim under FRCP 14 that is unrelated to the claims against that D?

No, the third-party claim must relate to the main claim and must depend on the outcome of the main action. See U.S. v. Olavarrieta at CB p. 332

YET MORE PARTIES

Can a TPD implead other parties and if so, in what circumstances?

If a TPD impleads someone, what is that person called?

That person is a fourth-party defendantDiagram: P-----D/TPP-------TPD------FPDCan this go on and on forever?

SEPARATE TRIALS

What provision of FRCP 14 provides for separate trials?

To prevent overly complex trials that would confuse the trier of fact, 14(a) provides- “Any party may move to strike the third-party claim or for its severance or separate trial.”

Also don’t forget rules 42(b) and 21!

Counterclaim Ds and impleader

Can a P who is a counterclaim-D implead third parties and if so, in what circumstances? What provision of the FRCP governs this?

PD

T

PLEADING REQUIREMENTS FOR THIRD-PARTY COMPLAINTS

A third-party complaint must comply with FRCP 8 and 11

8(a) “A pleading which sets forth a claim for relief, whether an original claim…or third-party claim shall contain …(2) a short and plain statement of the claim showing that the pleader is entitled to relief”

Rules 12 (defenses) and 13 (counterclaims/cross claims) also apply

PLAINTIFFS AND THIRD-PARTY Ds

Can a P sue a person joined as a TPD and if so, in what circumstances?

Yes, so long as the P’s claim arises out of the same transaction or occurrence as the original claims. This is discretionary, not mandatory.

If the TPD has a counterclaim against the P it is governed by R. 13

If more than one TPD is sued by a P the TPDs can cross-claim against each other subject to R. 13(g) – this is permissive

THIRD-PARTY D and PLAINTIFF

Can a TPD claim against the original plaintiff and if so, in what circumstances?

Yes, if the claim arise out of the same transaction or occurrence.

TPD’s claim(s) against the P are generally permissive unless the P has already sued TPD, in which case the TPD’s claim(s) would likely be compulsory counterclaims

JURISDICTION AND THIRD-PARTY CLAIMS

There must be an basis for the federal court to have subject matter jurisdiction over the third party claim – either diversity, jurisdiction, or supplemental jurisdiction

Third party claims must also satisfy requirements of personal jurisdiction (remember Rule 4(k)(1)(B) special 100 mile bulge rule that slightly extends personal jurisdiction for these claims)

Venue requirements don’t apply to R. 14 claims

PRACTICE EXERCISE 13

Please see your casebook at p. 285Please hand in