Civil Procedure Class Notes 11/18/03


We have very few days left!  We have this week, then we don’t meet at all next week.  Then the first week of December is weird.  We’ll meet four times, but not the normal days.  Then we meet two more times the next week.


Yesterday, we did a lot.  We did an introduction to pleading and the basic standard of notice pleading and the exception of heightened pleading.  Rule 11 requires you to do more than Rule 8 requires you to do in your complaint, which may lead to conflicts.  Having examined the complaint stage, we blasted through the preanswer/answer stage.  This was review because we had already looked at the 12(b) motions.  If you don’t do a preanswer motion, then you have to answer.  Your answer includes denials, affirmative defenses, and counterclaims.


As to denials, Rule 8(b) says that you have to make denials line-by-line and paragraph-by-paragraph.


As to affirmative defenses, statute of limitations is the most frequent one we’ve encountered, but there are plenty of other ones.


Now we’re going to do joinder of parties.




Rule 19 tells us that some people have to join.


Rule 20 tells us that joinder is permissible in that any plaintiff can join if they assert any right to relief arising from the same claim.


Defendants may be joined under basically the same standard.  It’s basically reciprocal.  This reflects a liberal idea of getting as many people into the lawsuit as needed.


A hypothetical


Herman is the driver and Wilma is a passenger.  Their car collides with a car driven by Dillon and owned by Owens.


Can Herman and Wilma join under Rule 20 to sue Dillon?  Sure!  What is the basis for their joinder?  It’s the same accident!  If Dillon is at fault for this accident, then whatever claim Wilma has, Herman has too.


What if Herman wanted to sue Dillon the driver and Owens the owner?  Can both of those parties be joined under Rule 20 as defendants?  You can as long as the defendants arise out of the same transaction or occurrence.  Why would we want to have all these parties in the same lawsuit?  It’s much more efficient to have everybody lodge their crossing allegations in one forum and get it all resolved at once if you can.


What about Herman suing Dillon and General Motors?  Will that be allowed?  Sure, it’s allowed under Rule 20(a).  The claims will be decidedly different between Dillon and General Motors.


Say Herman goes to try to settle the claim with Dillon and Sidney, Dillon’s son, punches Herman.  Can Herman join Sidney for hitting him?  Probably not.  But why?  This isn’t what the drafters wrote when they wrote “series of transactions”.


The rules are liberal, but there is an outer boundary beyond which you can’t join up parties.


Rule 20 is not very interesting.  It’s usually easy to see the relationship between the transactions or occurrences.


Rule 19 is where the action is!


Temple v. Synthes Corp.


What’s happening?  Temple had an operation in Louisiana to fix his back.  After the operation, the screws break off in Temple’s back.  Temple is from Mississippi.  Temple files two separate lawsuits.  Temple files against Synthes, the screw-making company from Pennsylvania in federal court in Louisiana based on diversity jurisdiction.  How do we get personal jurisdiction over Synthes in Louisiana?  You can do any sort of minimum contacts analysis.  It wouldn’t be terribly hard.  You can probably get jurisdiction in any state where their product is used and implanted.


Temple files a state administrative proceeding against the hospital and the doctor in Louisiana.  Then she files a lawsuit in state court.


In the federal action, Synthes files a motion to dismiss under 12(b)(7), saying that the plaintiff failed to join an indispensable party under Rule 19.


There is no question that the plaintiff could have joined the hospital and the doctor in a single action under Rule 20.  This is like the car accident where multiple people may have been at fault.  The question is, if Temple could have brought them in under Rule 20, does she have to bring them in under Rule 19?


Who brought the motion under Rule 19?  Synthes, the defendant, did.  Rule 19 is brought by defendants and it says: “We want more people in the suit!”


Rule 19 is couched in terms of what may happen to a defendant.  The court says that if you fall into this category, Rule 19(b) applies.  The court determines whether the action should proceed or be dismissed, concluding that the party is indispensable.  This is saying that there are people whose rights will be affected by the litigation.  If you can join them, you must.  If you can’t, the court must decide whether the litigation should proceed or should be dismissed.


This is a way for defendants to get out of a lawsuit.


The Court doesn’t get to do this without guidance.  There are various factors to consider as listed in Rule 19(b).


The Court evaluates these factors in their decision.


This is a “per curiam” decision.  This means either that a clerk wrote it and it was really simple, or else it’s so controversial that they don’t want to put specific names on it.


Why is this such an easy case?  The plaintiffs have autonomy as to who they want to join.  They shouldn’t have to sue everybody if they don’t want to.  Yet the lower court makes the argument that they were an indispensable party under Rule 19(b).  The Court says that there is no need to make an inquiry under Rule 19(b), because you have to do Rule 19(a) first.  The Court finds that the doctor and hospital don’t pass the Rule 19(a) test as indispensable parties.


Why aren’t the Rule 19(a) standards met by this scenario?


What is Synthes’s defense in their first lawsuit?  They will argue that it wasn’t their fault, but rather the doctor or hospital’s fault.  They will say that the screws are fine, but that it was the doctor’s fault.  The doctor’s claim will be that they installed the device fine but that the device was badly made.


Synthes tries to argue that they are being made subject to multiple obligations.  Why is that not persuasive?  Is Synthes really subject to multiple obligations?  Is it inconsistent to find two different parties at fault for the same injury?  No!  They could be joint tortfeasors!


“Synthes!  The screw maker!”


The Court is right, but they took an easy way out.  They point to the Advisory Committee notes that follow Rule 19 that explicitly say that joint tortfeasors are merely permissive parties.


Multiple tortfeasors equals permissive joinder.  This is a black-letter rule.


What does it mean to have a real indispensable party?  Say you have a husband and wife who own a piece of property and a potential buyer.  They contract to sell the piece of property, and then the sellers repudiate the deal.  The buyer sues just the husband for specific performance.


Is the wife a Rule 19 party?  In the absence of the wife, can we give complete relief to the plaintiff?  Can the court force the husband to sell land that he only jointly owns with his wife?  No!  If you jointly own something (unless it’s divisible), then both parties will have to be joined.


Who is going to bring this up?  The defendant will!  The thing is that there will often be a jurisdictional problem that will prevent the court from having jurisdiction over the wife.


Other examples include:


·        Joint interests in property

·        Joint obligors/obligees (when multiple parties agree to assume liability in the event of some occurrence, like indemnification agreements where two parties indemnify you jointly)

·        Represented parties

·        Limited pool/multiple claimants (where interpleader comes into play…if there’s a fixed pot of money involved, you’ll lose out if that pot gets “poured out” to another litigant and you’re not involved in the suit)


All bankruptcies are finite.  We have a separate system of dealing with a finite amount of assets worth less than a company’s debts.


Don’t worry about Rules 22, 23, and 24, we’ll deal with them in Civ Pro II.


We’ll do Butler tomorrow.


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