CIVIL PROCEDURE CLASS 18

1. CIVIL PROCEDURE CLASS 18 Professor Fischer Columbus School of Law The Catholic University of America October 8, 2003

2. 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

3. RULE 13(h) Allows additional parties to be joined to a counterclaim or cross-claim under Rules 19 or 20

4. 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)

5. FRCP 14: IMPLEADER • What is IMPLEADER (also known as third party practice) and what is its PURPOSE?

6. 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)

7. DISTINGUISING IMPLEADER, • From COUNTERCLAIMS? • From CROSS-CLAIMS?

8. 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?

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

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

11. SERVICE REQUIREMENTS • Hypo: Souter is involved in a car accident with two other drivers, Scalia and Rehnquist. Souter sues Scalia for negligence. Scalia wants to implead Rehnquist 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.

12. 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

13. 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

14. 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 defendant • Diagram: P-----D/TPP-------TPD------FPD • Can this go on and on forever?

15. 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!

16. 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? D P T

17. 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

18. 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

19. 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

20. 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

21. GROSS V. HANOVER INSURANCE CO. • Who did defendants seek to implead and for what claims? • This is a subrogation claim. What does that mean?

22. GROSS V. HANOVER INSURANCE CO. • What arguments does P mak • e in support of their contention that leave to implead should be denied? • How does the court rule on defendant’s motion? What is the court’s reasoning?

23. PRACTICE EXERCISE 13 • Please see your casebook at p. 334 • Please hand in