Civil Procedure II

14 November

• Brandon v. Chicago Board of Education, 143 F.3d 293 (7th Cir. 1998)
  From a previous edition of the book?

  Anyway, the clerk of court gets the name of the plaintiff's lawyer confused, and after a while the court dismissed for failure to prosecute. Because all correspondence had been going to someone else with a similar name. He moves to reopen under Rule 60. Denied.

  Ct. App. affirms: a case can only fall into 1 Rule 60 category, and this is (b)(1), so therefore it's not (b)(6). Should have filed 3 days earlier, because (b)(1) motions must be made no more than 1 year (c), and that was 3 days ago.

  The moral: CHECK YOU TIME LIMITS. If you haven't heard from the court for a suspiciously long time, maybe you should be looking into it.

• Reopening judgments is hard.
• Two defining characteristics of US procedure: broad discovery, broad joinder.
• Order of operations:
  1. Which joinder rule applies? If none, you are done.
  2. Does it allow joinder of a claim or a party?
  3. Is there personal jurisdiction over joined party?
  4. Is there federal subject matter jurisdiction over the joined party or claim?
• So, maybe the rules say you could join something, but jurisdiction would be lacking. Or you might have to join something, even though the rule is merely permissive, because of preclusion effects.
• Thus: A (IL) sues B (WI) on diversity. A wants to join C as additional defendant using Rule 20(2). But § 1367(b) says no: this would destroy diversity.
• § 1367 deals with subject-matter jurisdiction, not personal jurisdiction, so always be alert to personal jurisdiction.
• The same facts (e.g., misrepresentation in the creation of a contract) can be used as a defense, or as a counterclaim (i.e., a suit for lost profits).
• For strategic reasons, most people will bring all their claims at once, but the rules don't necessarily force you to do so. Still, it'll be hard to get a settlement unless you release all claims.
• Plant v. Blazer Financial Services
  Is debt a compulsory countercaim under Rule 13(a)? If so, there's supplementary jurisdiction under § 1357(a). Otherwise no, because of the low amount in controversy. Yes, it's compulsory, says the court.

  Are the disclosures made in making the loan part of the same transaction as the non-payment of the loan? Evidently there's enough of a logical connection to make that so.

• Also note Rule 13(a)(1): in order for there to be a counterclaim, there has to be a first claim at the time of pleading
• And regard 13(g) on cross-claims against a co-party: the have to arise out of the same transaction or occurrence. So you can't use a lawsuit as a forum to settle any old dispute with your codefendant.
• Note that a permissive counterclaim has to have its own independent basis for jurisdiction. Compulsories get jurisdiction automatically. This is Plant.
• Rule 18 is great, unless there's some more restrictive rule that applies. So if you can add someone under Rule 20, you can add all the claims you want under 18, although they might want their own basis for jurisdiction.

16 November

• Rule 20: permissive joinder of parties.
• Mosley
  Why join all in a single suit? Because it makes the defendant look bad.

  Really, this is sort of like the Wal-Mart class action from last term, except here the court says joinder is fine.

  This might not work nowadays-- this was early on for this type of litigation, and maybe those claims looked more similar back then.

• Broad joinder imposes a burden on plaintiffs to be sure that all possible claims are brought (in order to avoid preclusion).
• Rule 14: third-party claims (usually by defendants). You can implead a third party to pass liability onto them.
• Price v. CTB
  Impleading with a slight Eerie twist.

  CTB impleaded ITW about the bad nails. If there's a cause of action under AL law, impleader is proper. So this isn't an argument that ITW is liable, just that they could be. So we'll bring them into the lawsuit and then litigate whether there is, in fact, liability.

  ITW is trying to get the substance of the claim decided right out of the gate. This is a frustrating strategy, but common: try to prevent your opponent from putting on their case.

• Rule 14(a) gives you only 14 days from the filing of the answer to implead a third-party defendant.
• You might not want your defendant to implead someone who is a big deal. If they implead GM or something, you're now up against someone with a big litigation team. You might want that, of course, because of the deep pockets and the unsympathetic local team. But you also might not.