The Joinder of Claims to a Third-Party Impleader Without Independent Jurisdictional Ground - Herein Also of the Camel and His Pendent Fleas, 37 J
Total Page:16
File Type:pdf, Size:1020Kb
Load more
Recommended publications
-
Compulsory Counterclaim Committee
Report of Boyd-Graves Conference Compulsory Counterclaim Committee Members of the Committee to Study a Proposal to Adopt a Compulsory Counterclaim Rule are Stuart Raphael, Ham Bryson, Bob Mitchell, David Anthony, Jack Costello, Kent Sinclair, Lisa O’Donnell, Bill Mims, and Robin Wood, Chairman. The Committee has met thrice by conference call: on March 25, 2008, April 30, 2008, and May 22, 2008. In the initial conference the Chairman polled members of the Committee to determine if there was a consensus among members of the Committee in favor of a compulsory counterclaim. Seven members of the Committee said they were in favor of a compulsory counterclaim, and two members of the Committee expressed reservations about a compulsory counterclaim rule. In response to an inquiry about a compulsory counterclaim rule in other states, Kent thought that over 40 states had adopted a compulsory counterclaim rule. The Chairman asked members to state their reasons for their position. Those members who were in favor of the rule felt that it was good public policy for all claims arising out of the same transaction or occurrence to be joined in one action. A compulsory counterclaim rule promotes judicial economy and efficiency. Under Rule 1:6, the plaintiff is required to join all claims that arise out of an identified conduct, transaction or occurrence, or later be barred from bringing a second or subsequent action against the same opposing party (parties) arising out the same conduct, transaction or occurrence. The adoption of a compulsory counterclaim rule would require the opposing party to state a claim arising out of the conduct identified in the complaint, crossclaim, or third party claim. -
The Shadow Rules of Joinder
Brooklyn Law School BrooklynWorks Faculty Scholarship 2012 The hS adow Rules of Joinder Robin Effron Brooklyn Law School, [email protected] Follow this and additional works at: https://brooklynworks.brooklaw.edu/faculty Part of the Other Law Commons Recommended Citation 100 Geo. L. J. 759 (2011-2012) This Article is brought to you for free and open access by BrooklynWorks. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of BrooklynWorks. The Shadow Rules of Joinder ROBIN J. EFFRON* The Federal Rules of Civil Procedure provide litigants with procedural devices for joining claims and parties. Several of these rules demand that the claims or parties share a baseline of commonality, either in the form of the same "transactionor occurrence" or a "common question of law or fact." Both phrases have proved to be notoriously tricky in application.Commentators from the academy and the judiciary have attributed these difficulties to the context- specific and discretionary nature of the rules. This Article challenges that wisdom by suggesting that the doctrinal confu- sion can be attributed to deeper theoretical divisions in the judiciary, particu- larly with regardto the role of the ontological categories of "fact" and "law." These theoretical divisions have led lower courtjudges to craft shadow rules of joinder "Redescription" is the rule by which judges utilize a perceived law-fact distinction to characterizea set of facts as falling inside or outside a definition of commonality. "Impliedpredominance" is the rule in which judges have taken the Rule 23(b)(3) class action standard that common questions predominate over individual issues and applied it to other rules of joinder that do not have this express requirement. -
United States District Court Eastern District of Kentucky Lexington Division
Case: 5:05-cv-00137-JBC-JBT Doc #: 13 Filed: 10/11/05 Page: 1 of 5 - Page ID#: <pageID> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY LEXINGTON DIVISION CIVIL ACTION NO. 05-137-JBC EAST KENTUCKY POWER COOPERATIVE, INC., PLAINTIFF, V. MEMORANDUM OPINION AND ORDER GREENWICH INSURANCE COMPANY, DEFENDANT. * * * * * * * * * * * This matter is before the court on the motion of the defendant, Greenwich Insurance Company (“Greenwich”), for leave to file a third party complaint (DE 4), and on the motion of Lexington Coal Company (“LCC”) to intervene and transfer to Bankruptcy Court (DE 7, 8). The court construes the plaintiff’s responses as motions to remand (DE 5, 9). The court, having reviewed the record and being otherwise sufficiently advised, will grant Greenwich’s motion, will reserve ruling on LCC’s motion, and will deny the plaintiff’s motion. Background and procedural history Plaintiff, East Kentucky Power Cooperative (“EKPC”), is a resident of the Commonwealth of Kentucky. It filed a complaint in Clark County Circuit Court against Greenwich, a foreign company, alleging breach of contract and breach of a covenant of good faith and fair dealing. Greenwich removed the case to this court invoking diversity jurisdiction and now seeks to implead LCC and interplead LCC and EKPC. EKPC objects to neither procedural device. However, it is concerned that the impleader of LCC, also a Kentucky resident, will destroy this court’s diversity Case: 5:05-cv-00137-JBC-JBT Doc #: 13 Filed: 10/11/05 Page: 2 of 5 - Page ID#: <pageID> jurisdiction. Analysis Greenwich’s motion for leave to file a third-party complaint Impleader is proper under Rule 14 where a third party may be liable to a defendant for all or part of a plaintiff’s claim. -
U:\Judgehovland\Law Clerks\Civil\Motions to Dismiss\Wilkinson V. Sbtwpd.Wpd
Case 4:08-cv-00087-DLH-CSM Document 118 Filed 05/25/10 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA NORTHWESTERN DIVISION Peak North Dakota, LLC, a Colorado ) limited liability company; Peak Energy ) Resources, LLC, a Delaware limited ) liability company, Jack Vaughn, Alex ) McLean, and Matt Gray, ) ORDER ) Plaintiffs, ) ) vs. ) Case No. 4:08-cv-087 ) Wilbur Wilkinson, Standing Bear ) Traders, LLC, a North Dakota limited ) liability company, and the Three Affiliated ) Tribes, Fort Berthold District Court, ) ) Defendants. ) _________________________________________________________________________ ) Wilbur Wilkinson, ) ) Third-Party Plaintiff, ) ) vs. ) ) Standing Bear Traders, LLC, ) a North Dakota limited liability company, ) and Margarita Burciaga-Taylor and ) Richard Howell, individually and ) d/b/a Standing Bear Traders, LLC, ) ) Third-Party Defendants. ) Before the Court is Standing Bear Traders, LLC (SBT) and Margarita Burciaga-Taylor’s (Taylor) “Motion to Dismiss Wilkinson’s Third Party Complaint or, Alternatively, to Abstain from Exercising Jurisdiction Over Wilkinson’s Third Party Complaint” filed on January 15, 2010. See Docket No. 83. Third-Party Plaintiff Wilbur Wilkinson (Wilkinson) filed a response in opposition 1 Case 4:08-cv-00087-DLH-CSM Document 118 Filed 05/25/10 Page 2 of 12 to the motion on March 10, 2010. See Docket No. 106. Taylor and SBT filed a reply brief on March 24, 2010. See Docket No. 108. Taylor and SBT filed a supplemental appendix on March 26, 2010. See Docket No. 111. For the reasons set forth below, the motion is granted in part and denied in part. I. BACKGROUND Peak North Dakota, LLC (Peak North) is a limited liability company organized under Colorado law and authorized to do business as a foreign limited liability company in North Dakota. -
Attorney Case Opening Interpleader Complaint Disputed Ownership Fund 28:1335
Civil – Case Opening - Attorney April 2017 ATTORNEY CASE OPENING INTERPLEADER COMPLAINT DISPUTED OWNERSHIP FUND 28:1335 An equitable proceeding brought by a third person to have a court determine the ownership rights of rival claimants to the same money or property that is held by that third person. The IRS defines a disputed ownership fund (DOF) as a fund established to hold money or property that is subject to conflicting claims of ownership in the registry of the court. Interpleader funds are deposited with the court by a non-owner, third party and invested in the court’s registry pending the court’s determination of ownership and entry of a disbursement order. I. CASE OPENER 1. Open a Civil Case (Attorney) a) After reading information screen click Next b) After reading OFFICE by county screen click Next c) Select Office: Camden, Newark or Trenton; Case type: cv d) Other court name and number – use if appropriate e) After reading information screen click Next f) Enter the following in the appropriate fields: Jurisdiction generally 4 (Diversity) but may be 3 (Federal Question)1 Cause of Action = 28:1335 (28:1335 Interpleader Action) Nature of Suit in most cases it would be 110 (Insurance) however, 190 (Other Contract), 791 (ERISA) and 890 (Other Statutory Action) are other possibilities Origin = 1 (Original Proceeding) Citizenship plaintiff and defendant - Select appropriately Jury demand - Select appropriately County - Select appropriately Fee status defaults to pd (paid), change if appropriate All other fields leave blank or as populated, click Next g) After reading entering parties information screen click Next 2. -
Construction Arbitration: Unique Joinder and Consolidation Challenges
® JUNE 2020 | VOLUME 74 | NUMBER 3 © 2020, American Arbitration Association Construction Arbitration: Unique Joinder and Consolidation Challenges Steven Champlin∗ Tiana Towns† Introduction It is well known that arbitration as a means of deciding disputes is used widely in the construction industry to avoid litigation costs and delays and for other reasons. To a great extent, the American Arbitration Association (AAA) has provided the preferred forum and rules. Yet, there are lawyers and their clients who question use of arbitration to resolve construction disputes. One of the reasons often advanced relates to the potential inability in some circumstances to join, that is add, some parties to a proceeding or consolidate related, but separate, arbitrations, with the consequence that multiple proceedings, increased expense, and inconsistent results can occur. It is important for those in the construction industry to understand what the joinder and consolidation challenges actually are and how they can be mitigated. I. Reasons Construction Disputes May Give Rise to Joinder and Consolidation Issues Construction disputes often require evaluation of which parties should be joined in a proceeding or whether a related arbitration should be consoli- dated with a proceeding for a number of reasons unique to the construction setting, which are discussed below. ∗After retiring from Dorsey & Whitney LLP, an international law firm, where he served as head of the firm’s construction and design group for over 20 years, Steven Champlin has devoted most of his professional activities to serving as an arbitrator. He is a member of the AAA National Roster of Arbitrators, Large, Complex Cases Panel, CPR’s National Panel of Distinguished Construction Neutrals, and the Court of Arbitration for Sport. -
Uniform Trial Court Rules
UNIFORM TRIAL COURT RULES Including Amendments Effective August 1, 2016 (Including Out-of-Cycle Amendments to UTCR 5.100, UTCR Chapter 21 Title, UTCR 21.040, 21.060, 21.070, and 21.100) This document has no copyright and may be reproduced. In the Matter of the Adoption of ) CHIEF JUSTICE ORDER Amendments to the Uniform Trial ) No. 16-019 Court Rules ) ) ADOPTION OF AMENDMENTS TO THE ) UNIFORM TRIAL COURT RULES I HEREBY ORDER, pursuant to ORS 1.002, UTCR 1.030, and UTCR 1.050, the following: 1. The Uniform Trial Court Rules, as amended below, are adopted and are effective August 1, 2016, pursuant to ORS 1.002. 2. All current local rules inconsistent with the Uniform Trial Court Rules as amended will be deemed ineffective on August 1, 2016, pursuant to UTCR 1.030. 3. Local rules that are consistent with the Uniform Trial Court Rules as amended remain in effect and are subject to review as provided under UTCR 1.050. 4. Those local rules that are not amended or repealed and are not disapproved on review under UTCR 1.050 remain in effect until so amended, repealed, or disapproved. Dated this \ 1<lb day of May, 2016. Thomas A. Balmer " Chief Justice IN THE SUPREME COURT OF THE STATE OF OREGON In the Matter of the Adoption of ) SUPREME COURT ORDER Amendments to Uniform Trial Court ) No. 16-018 Rule 19.020 ) ) ADOPTION OF AMENDMENTS TO ) UNIFORM TRIAL COURT RULE 19.020 Pursuant to ORS 33.145, the Oregon Supreme Court has approved amendment of Uniform Trial Court Rule (UTCR) 19.020, therefore I HEREBY ORDER the following: 1. -
The Constitutionality of Statutes of Repose: Federalism Reigns
Vanderbilt Law Review Volume 38 Issue 3 Issue 3 - April 1985 Article 8 4-1985 The Constitutionality of Statutes of Repose: Federalism Reigns Josephine H. Hicks Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Constitutional Law Commons, and the Torts Commons Recommended Citation Josephine H. Hicks, The Constitutionality of Statutes of Repose: Federalism Reigns, 38 Vanderbilt Law Review 627 (1985) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol38/iss3/8 This Note is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. The Constitutionality of Statutes of Repose: Federalism Reigns I. INTRODUCTION ...................................... 627 II. STATUTES OF REPOSE ............................. 628 A. Defining "Statute of Repose" ............... 628 B. Arguments For and Against Statutes of Re- p ose ...................................... 632 III. CONSTITUTIONAL ISSUES .............................. 635 A. Equal Protection .......................... 635 B. Due Process ............................... 642 C. Open Courts, Access to Courts, and Remedy. 644 IV. ANALYSIS .......................................... 648 A. Effect of State Constitutional Law .......... 648 B. Future Direction .......................... 652 C. Arguments For and Against National Legisla- tion ..................................... -
SOL-CHART.Pdf
MATTHIESEN, WICKERT & LEHRER, S.C. Hartford, WI ❖ New Orleans, LA ❖ Orange County, CA ❖ Austin, TX ❖ Jacksonville, FL Phone: (800) 637-9176 [email protected] www.mwl-law.com STATUTES OF LIMITATIONS FOR ALL 50 STATES A statute of limitations (SOL) specifies a time period for commencing suit on a given claim that begins to run, or is triggered, when the cause of action accrues. When a cause of action “accrues” generally depends on the particular state involved, but it is usually when an accident occurs or when a claimant “discovers” the resulting injury. While a statute of limitations takes effect when a claim arises, a statute of repose bars the bringing of a suit after a set period of time, regardless of whether an injury occurred, or a claim has arisen. The time limit for bringing suit established by a statute of repose is triggered by a specified event, such as the substantial completion of an improvement to real property, the date a product was used, or the date a product was sold. All fifty (50) states currently have statutes of repose, varying in both the type of claim covered by the statute and the length of the repose period. Forty-six (46) states have a statute of repose which apply to actions involving real property design, engineering, and construction. However, nineteen (19) states also have statutes of repose limiting product liability claims. STRICT PRODUCT PERSONAL PERSONAL SERVICE OF PROCESS STATE LIABILITY / BREACH OF STATUTE OF REPOSE PROPERTY INJURY REQUIREMENT WARRANTY Construction: 7 Years from substantial 2 Years completion to improvement to real An action is commenced by filing a Ala. -
Article 49. Pleadings and Joinder. § 15A-921. Pleadings in Criminal Cases. Subject to the Provisions of This Article, the Fo
Article 49. Pleadings and Joinder. § 15A-921. Pleadings in criminal cases. Subject to the provisions of this Article, the following may serve as pleadings of the State in criminal cases: (1) Citation. (2) Criminal summons. (3) Warrant for arrest. (4) Magistrate's order pursuant to G.S. 15A-511 after arrest without warrant. (5) Statement of charges. (6) Information. (7) Indictment. (1973, c. 1286, s. 1; 1975, c. 166, s. 18.) § 15A-922. Use of pleadings in misdemeanor cases generally. (a) Process as Pleadings. – The citation, criminal summons, warrant for arrest, or magistrate's order serves as the pleading of the State for a misdemeanor prosecuted in the district court, unless the prosecutor files a statement of charges, or there is objection to trial on a citation. When a statement of charges is filed it supersedes all previous pleadings of the State and constitutes the pleading of the State. (b) Statement of Charges. (1) A statement of charges is a criminal pleading which charges a misdemeanor. It must be signed by the prosecutor who files it. (2) Upon appropriate motion, a defendant is entitled to a period of at least three working days for the preparation of his defense after a statement of charges is filed, or the time the defendant is first notified of the statement of charges, whichever is later, unless the judge finds that the statement of charges makes no material change in the pleadings and that no additional time is necessary. (3) If the judge rules that the pleadings charging a misdemeanor are insufficient and a prosecutor is permitted to file a statement of charges pursuant to subsection (e), the order of the judge must allow the prosecutor three working days, unless the judge determines that a longer period is justified, in which to file the statement of charges, and must provide that the charges will be dismissed if the statement of charges is not filed within the period allowed. -
Counterclaims, Cross-Claims and Impleader in Federal Aviation Litigation John E
Journal of Air Law and Commerce Volume 38 | Issue 3 Article 4 1972 Counterclaims, Cross-Claims and Impleader in Federal Aviation Litigation John E. Kennedy Follow this and additional works at: https://scholar.smu.edu/jalc Recommended Citation John E. Kennedy, Counterclaims, Cross-Claims and Impleader in Federal Aviation Litigation, 38 J. Air L. & Com. 325 (1972) https://scholar.smu.edu/jalc/vol38/iss3/4 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Journal of Air Law and Commerce by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. COUNTERCLAIMS, CROSS-CLAIMS AND IMPLEADER IN FEDERAL AVIATION LITIGATION JOHN E. KENNEDY* I. THE GENERAL PROBLEM: MULTIPLE POTENTIAL PLAINTIFFS AND DEFENDANTS W HEN airplanes crash, difficult procedural problems often arise from the numbers of potential parties and the com- plexity of the applicable substantive law. Since under that law, re- covery can be granted to large numbers of plaintiffs, and liability can be distributed to a variety of defendants, the procedural rights to counterclaim, cross-claim and implead third-parties have become important aspects of federal aviation litigation. When death results the most obvious parties plaintiff are those injured by the death of the decedent, i.e., the spouses, children, heirs and creditors. Whether they must sue through an estate, or special administrator or directly by themselves will ordinarily be determined by the particular state wrongful death statute under which the action is brought, and the capacity law of the forum.' In addition, the status of the decedent will also have bearing on the parties and the form of action. -
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT of FLORIDA CASE NO.: 1:19-Cv-23650-GAYLES/OTAZO-REYES MARIA ELENA PEREZ, Plaintif
Case 1:19-cv-23650-DPG Document 73 Entered on FLSD Docket 08/21/2020 Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 1:19-cv-23650-GAYLES/OTAZO-REYES MARIA ELENA PEREZ, Plaintiff, v. MIDLAND NATIONAL LIFE INSURANCE COMPANY, Defendant. _______________________________________/ MIDLAND NATIONAL LIFE INSURANCE COMPANY, Counter and Third-Party Plaintiff, v. MARIA ELENA PEREZ (I), Counter-Defendant and Cross-Claimant, and MARIA ELENA PEREZ (II), Third-Party Defendant and Cross-Defendant on Crossclaim of Maria Elena Perez (I). _______________________________________/ ORDER THIS CAUSE comes before the Court on Third-Party Defendant and Cross-Defendant Maria Elena Perez’s Motion to Dismiss Plaintiff/Counter-Defendant and Cross-Claimant’s Amended Cross Claim for Failure to State a Cause of Action Upon Which Relief Can be Granted Case 1:19-cv-23650-DPG Document 73 Entered on FLSD Docket 08/21/2020 Page 2 of 8 (the “Motion”) [ECF No. 57]. The Court has reviewed the Motion and the record and is otherwise fully advised. For the reasons that follow, the Motion is granted. BACKGROUND1 This action stems from an ongoing family dispute over the proceeds of two life insurance policies purchased from Midland National Life Insurance Company (“Midland”) that insured the life of the decedent, Rolando A. Perez (the “Decedent”). Maria Elena Perez (“Perez I”), the Decedent’s widow, and Maria Elena Perez (“Perez II”), the Decedent and Perez I’s daughter, each claim to be the true beneficiary of the two life insurance policies. I. Factual Background On November 21, 1999, Midland issued a life insurance policy insuring the Decedent’s life for $97,000.00 (No.