Civil Procedure

Joinder of Parties and Claims

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 jurisdictionPersonal 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. 

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)

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.

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)

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. 

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 impleaded 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 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. Federal courts have original jurisdiction in class actions in which "any member of a class of plaintiffs is a citizen of a State different from any defendant," and the aggregated claims of the plaintiffs exceeds the sum or value of $5,000,000, exclusive of interest and costs. (28 U.S.C. §1332(d))

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