Quick Civ Pro Question

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Interminable_Waiting
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Quick Civ Pro Question

Postby Interminable_Waiting » Sat Dec 04, 2010 9:34 am

A plaintiff desires to add a 2nd D to a suit, without the first D's consent, after the first D's motion to dismiss has bee ndenied but before that D filed an answer.

How does the plaintiff do this (cite rules)?


Im confusing myself with joinder and amendments and how they relate to each other; I can't figure out the actual process through which the plaintiff adds parties after he has already filed his complaint.

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Kiersten1985
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Re: Quick Civ Pro Question

Postby Kiersten1985 » Sat Dec 04, 2010 10:43 am

Here's an answer to the actual joinder question. I'm not quite sure how the 1st defendant's answer plays into this. Curious to see what other people think.

I will assume this case is sitting in subject-matter jurisdiction, and that the party to be joined is not a required party under Rule 19. (you may want to analyze this in more detail in an actual exam answer)

Under Rule 20 (Permissive Joinder), the court may join a party as a plaintiff or defendant if that party (a) has a joint right to relief or claim that arises from the same transaction or occurrence or series of transactions or occurrences; AND (b) any question of law or fact common to all plaintiffs or defendants will arise in the action. Part (b) is generally interpreted liberally, so as to effect the court's goal of efficiently settling matters.

If the party to be joined's claim does not have an independant and adequate basis for subject-matter jurisdiction, the court must have a basis for asserting supplemental jurisdiction over the party. To assert supplemental jurisdiction over the party, the claim by or against the party must "form party of the same case or controversy" as the original claims. 28 USC 1367(a). Furthermore, if the original action is based solely on diversity, a claim brought against a party joined under Rule 20 (as is the proposed defendant in this case) must not be such that the joining of the party would defeat diversity. 28 USC 1367(b).

Thus, the proposed defendant in this case must have diverse citizenship with the plaintiff. The amount in controversy would not be an issue in this circumstance because the claim is asserted by a plaintiff who presumably already meets the $75,000 requirement (if the case is, in fact, in diversity jurisdiction). Under the aggregation principles, a single party may aggregate all of his claims to meet the amount in controversy requirement. Thus, the plaintiff's claim(s) against the proposed defendant in this case, would simply be added to the plaintiff's current +$75,000 claims.

Therefore, if the claim against the proposed Rule 20 defendant:
(1) asserts a joint right to relief; OR
(2) asserts a claim from the same transaction or occurrence or series of transactions or occurrences; AND
(3) any question of law or fact common to all plaintiffs and defendants will arise; AND
(4) the claim has an independant and adequate basis for subject-matter jurisdiction; OR
(5) if the original action is based solely on diversity, the joining of the proposed defendant does not defeat diversity of citizenship; THEN
(6) the plaintiff may join the defendant in the action under Rule 20 in supplemental jurisdiction.

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ggocat
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Re: Quick Civ Pro Question

Postby ggocat » Sat Dec 04, 2010 3:58 pm

Kiersten, I think you answered a question that was not asked re: jurisdiction and whether the P is authorized under Rule 20 to add a D. The question does not seem to ask whether it is proper to join the D. Rather, the question seems to ask what procedure you must follow for doing so.

To answer the general question: you amend your pleadings by simply filing a new pleading and designating it as an amended pleading.

I believe you should look to FRCP 15(a)(1)-(2). If you're filing within 21 days of being served by the Rule 12(b) motion, then you can amend your pleading as a matter of course. You simply file an amended complaint. If you're filing after 21 days from being served by the Rule 12(b) motion (most likely true given the motion has been denied already), then you proceed under Rule 15(a)(2). You first ask opposing counsel for consent. If you obtain consent, then you file your amended pleading and state that opposing counsel has consented to the amendment (good idea to attach copy of e-mail from opposing counsel). If you do not obtain consent, you file a motion to amend your complaint under Rule 15(a)(2), along with your amended complaint.

EDIT: And you must, of course, serve the amended pleading on opposing counsel by mailing a copy. You also must attach a certificate of service to the complaint you filed with the court, which is a statement that you served the D's lawyer with a copy by mailing it.

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Interminable_Waiting
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Re: Quick Civ Pro Question

Postby Interminable_Waiting » Sat Dec 04, 2010 8:54 pm

Thanks guys. The second reponse really answered my question. In class we never went over amended complaints adding parties, just claims, and I wasn't sure if there was anything different required. Thanks for the first response too.

Good luck!

HiiPower2015
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Re: Quick Civ Pro Question

Postby HiiPower2015 » Tue Apr 23, 2013 9:31 pm

i know this is an old thread but hopefully someone can clairfy. We have not gone over the procedures of how to amend a claim or how to procedurally join a party or anything like that. We started off by learning about the requirements of the complaint and the answer and how you can amend a claim within 21 days everytime, but after 21 you need court's leave and they will usually grant unless it prejudices the other party. We also learned that you are able to add a claim to a complaint, even if after the SoL, if it relates back.

From there we just went straight into joinder and didnt discuss how they are connected. I'm not sure if he expected us to make this connection way sooner than I did, but when we are doing all these hypo's and the defendant is counter-claiming and the plaintiff is then responding and possibly adding a third party...all of that is considered an amendment to the claim?

So the plaintiff obviously has the original claim, and the defendant can then answer and include any counter claims. But after that they must either party must amend the claim to do any more joining of parties or claims, and this is when the 21 day window and the issue of being past the SoL and relation back comes into play? Also we learned that each party can only amend once under R. 15(a)(1), so that means that in these crazy hypo's each party could really only add a defendant or plaintiff once?

Any clarification would be great!




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