1367(b) question

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BarbellDreams
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1367(b) question

Postby BarbellDreams » Sat Apr 30, 2011 12:25 pm

So I am reading the Glannon Guide and something threw me about this: He says claims analyzed under 1367b need to be asserted by the ORIGINAL plaintiff, third party plaintiffs don't count and D's that are counterclaiming do not count as plaintiffs.

This doesn't make sense to me. If A sues B and B has a counter claim that brings in a third party under Rule 19 and that party does NOT meet the standards of diversity I thought the claim wouldn't work since its under one of the rules 1367b guards against and both the standards of diversity aren't met (assume no original jurisdiction over new claim). However, the ORIGINAL plaintiff isn't asserting any claim against the third party, just the defendant is. According to Glannon the defendant is NOT a plaintiff for purposes of 1367b, I honestly disagree.

Help?

dakatz
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Re: 1367(b) question

Postby dakatz » Sat Apr 30, 2011 12:32 pm

BarbellDreams wrote:So I am reading the Glannon Guide and something threw me about this: He says claims analyzed under 1367b need to be asserted by the ORIGINAL plaintiff, third party plaintiffs don't count and D's that are counterclaiming do not count as plaintiffs.

This doesn't make sense to me. If A sues B and B has a counter claim that brings in a third party under Rule 19 and that party does NOT meet the standards of diversity I thought the claim wouldn't work since its under one of the rules 1367b guards against and both the standards of diversity aren't met (assume no original jurisdiction over new claim). However, the ORIGINAL plaintiff isn't asserting any claim against the third party, just the
defendant is. According to Glannon the defendant is NOT a plaintiff for purposes of 1367b, I honestly disagree.

Help?


The defendant is given leeway since he isn't the one who chose to go to court and he isn't the one who chose where the suit was brought. 1367b was meant to protect against someone like A from bringing suit against the 3rd party that would kill diversity, since A couldn't have brought the suit there in the first place, yet it is the venue of his choice. So A can't have it both ways. D didn't choose to sue and didn't choose to be in court. So the fact that he is bringing a claim that involves B isn't truly "free". He is getting it over with since he was dragged into court.

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BarbellDreams
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Re: 1367(b) question

Postby BarbellDreams » Sat Apr 30, 2011 12:40 pm

But then 3rd parties who D chooses to bring in (Under Rule 13h/19 on a counterclaim against P or under Rule 14 looking to get indemnified or contribution) would never get a choice and would always have to come to federal court even if they lack both diversity elements necessary and are both joined under rules that 1367b was meant to guard against just because the ORIGINAL P doesn't have a claim against them?

thescienceguy
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Re: 1367(b) question

Postby thescienceguy » Sat Apr 30, 2011 2:53 pm

BarbellDreams wrote:But then 3rd parties who D chooses to bring in (Under Rule 13h/19 on a counterclaim against P or under Rule 14 looking to get indemnified or contribution) would never get a choice and would always have to come to federal court even if they lack both diversity elements necessary and are both joined under rules that 1367b was meant to guard against just because the ORIGINAL P doesn't have a claim against them?


Hmm maybe I'm not understanding your question, but it seems like you're asking whether a 3rd Party (D2) would have stay in federal court just because P doesn't have a claim against them.

Rule 14 impleader claims (D1 v. D2) have supplemental jurisdiction.
Rule 19 already has built-in SMJ requirements. So if it destroys complete diversity, you wouldn't use Rule 19 anyway.
Rule 20 is a Plaintiff's right, so if P didn't have a claim, there would be no Rule 20 joinder (via 13h).

That's what I remember from class, but I could be entirely wrong. Civpro is my last final so I haven't reviewed yet.

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YourCaptain
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Re: 1367(b) question

Postby YourCaptain » Sun May 01, 2011 9:31 pm

Thing to remember is that the plaintiff shouldn't be able to sue anyone for anything he could have sued them for in the first place. So that's why a defendant can violate it but the original plaintiff can't.

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shepdawg
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Re: 1367(b) question

Postby shepdawg » Mon May 02, 2011 12:32 am

BarbellDreams wrote:So I am reading the Glannon Guide and something threw me about this: He says claims analyzed under 1367b need to be asserted by the ORIGINAL plaintiff, third party plaintiffs don't count and D's that are counterclaiming do not count as plaintiffs.

This doesn't make sense to me. If A sues B and B has a counter claim that brings in a third party under Rule 19 and that party does NOT meet the standards of diversity I thought the claim wouldn't work since its under one of the rules 1367b guards against and both the standards of diversity aren't met (assume no original jurisdiction over new claim). However, the ORIGINAL plaintiff isn't asserting any claim against the third party, just the defendant is. According to Glannon the defendant is NOT a plaintiff for purposes of 1367b, I honestly disagree.

Help?

B's claims against both the original P and the TPD need a basis of SMJ. It depends on the nature of the claim. If it's a compulsory CC, then B's claim against P will be allowed. How do you get rule 19 in this mix? Did you mean 13, 14, or 20?




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