Counterclaims, Cross-Claims and Impleader in Federal Aviation Litigation John E
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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. -
CIVIL PROCEDURE Question 1: Improper Venue 30 % Able Could
GRADER’S GUIDE *** QUESTION NO. 3 *** SUBJECT: CIVIL PROCEDURE Question 1: Improper Venue 30 % Able could file a motion with the Fairbanks court to dismiss the lawsuit for improper venue, or could file a motion for a change of venue to move the case to the Anchorage court. If the Fairbanks court did dismiss the case, it would probably do so without prejudice to refiling the case within a certain amount of time in the Anchorage court. North Slope Borough v. Green International, 969 P.2d 1161 (Alaska 1999). Able could file a motion to dismiss the lawsuit under Alaska Rule of Civil Procedure 12(b)(3) for improper venue. Under Rule 3, the lawsuit should have been filed in Anchorage, which is in a different judicial district than Fairbanks. Rule 3(c) provides that a lawsuit should be filed in the judicial district in which the claim arose or where the defendant may be personally served. Since the claim of improper excavation work arose in Anchorage, and Able is located and may be served in Anchorage, the lawsuit should have been commenced in Anchorage. Rule 3(b) also provides that actions in ejectment, for recovery of possession, for quieting title, for partition, or for the enforcement of liens upon real property shall be commenced in the superior court in the judicial district in which the real property is located. Although this case does not involve a claim relating to the title of the building lots or the other types of claims listed in Rule 3(b), the fact that the lots are located in Anchorage is an additional reason the lawsuit should be brought in Anchorage. -
Agreement and Release of All Claims
SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims (“Agreement”) is made and entered into by and between ANDRES ALEXANDER CACEDA-MANTILLA and CITY OF PALMER, ALASKA (hereinafter collectively referred to as “the Parties”). “Claimant” shall collectively mean Andres Alexander Caceda-Mantilla and his respective heirs, executors, administrators, successors, trustees, and assigns. “Released Party” shall collectively mean City of Palmer, Alaska, and its respective, employees, assigns, heirs, agents, attorneys, adjusters, insurers, and re-insurers. I. Recitals A. The purpose this Agreement is to facilitate the settlement, dismissal with prejudice, and release of any and all claims which were asserted, or which could have been asserted, with respect to the facts giving rise to Andres Alexander Caceda-Mantilla v. City of Palmer, Alaska, Kristi Muilenburg, Jamie Hammons, Daniel Potter, and Hilary Schwaderer, Case No. 3PA-18-01410 CI, a lawsuit now pending in the Superior Court for the State of Alaska at Palmer (“the Lawsuit”). B. The City of Palmer denies all the allegations of the Lawsuit and specifically denies that it has any liability based on the allegations set forth in the Lawsuit. C. The City of Palmer regrets any inconvenience, embarrassment, or personal hardship the incident may have caused Mr. Caceda-Mantilla. D. The Parties desire to enter into this Agreement to provide, among other things, for consideration in full settlement and discharge of all claims and actions of {00821062} SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS Andres Alexander Caceda-Mantilla v. City of Palmer, Alaska, et al., Case No. 3PA-18-01410 Civil Page 1 of 9 Claimant for damages that allegedly arose out of, or due to, the facts and circumstances giving rise to the Lawsuit, on the terms and conditions set forth in this Agreement. -
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. -
The New Federal Rules of Procedure As Compared with the Former Federal Equity Rules and the Wisconsin Code, 23 Marq
Marquette Law Review Volume 23 Article 2 Issue 4 June 1939 The ewN Federal Rules of Procedure as Compared with the Former Federal Equity Rules and the Wisconsin Code Daniel C. Hopkinson Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Daniel C. Hopkinson, The New Federal Rules of Procedure as Compared with the Former Federal Equity Rules and the Wisconsin Code, 23 Marq. L. Rev. 159 (1939). Available at: http://scholarship.law.marquette.edu/mulr/vol23/iss4/2 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. THE NEW FEDERAL RULES OF CIVIL PROCEDURE COMPARED WITH THE FORMER FEDERAL EQUITY RULES AND THE WISCONSIN CODE DANIEL K HOPIINSON T OA considerable extent, the practice under the Federal Rules of Civil Procedure is the same as the practice under the Federal Equity Rules and the Wisconsin Code. There are, however, a great many minor and a few substantial differences. The lawyer who has tried suits in equity in the federal courts will be interested in knowing to what extent the practice under the Federal Rules of Civil Procedure conforms to the practice under the former Federal Equity Rules. The lawyer who has engaged in litigation in the Wisconsin courts or who has tried actions at law in the federal district courts in Wisconsin will examine the new federal rules with a view to determining the devia- tion from the Wisconsin practice. -
APPENDIX TABLE of CONTENTS. PAGES
APPENDIX TABLE of CONTENTS. PAGES. AppendixA is eight pages...........................................................................................1-8 Fourth District Court of Appeal, Division One, April 18, 2018, decision. AppendixB is one page...................................................................................................9 Denial of the Petition for Rehearing. AppendixC is two pages..........................................................................................10-11 California State Trial Court, order. AppendixD is one page .................................................................................................. 12 July 18, 2018 Order denying Discretionary Review by the California Supreme Court. AppendixE is one page.................................................................................................13 And contains copies of Article VI, clause 2 and Title 28 U.S.C. § 1291. AppendixF is one page.................................................................................................14 And contains Title 28. U.S.C. § 1367 (d) and Supreme Court Rule 10. (b) and (c). State of California Court of Appeal Fourth Appellate District Division One Filed 4/19/18 Not to be publishedi Case no. D072560 in official reports. ] Lower court: San Diego County Superior Court case no.: 37-2016-00038660- CU-PT-CTL Jack R. Koch, Plaintiff and Appellant, V. A. Estrella, et al., Defendants and Respondents. Appeal from ajudgment and order of the Superior Court of San Diego County, Lisa C. Schall, Judge. -
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. -
Commencement of a U.S. Civil Lawsuit Pleadings, Jurisdiction and Venue
Commencement of a U.S. Civil Lawsuit Pleadings, Jurisdiction and Venue July 18, 2016 Andre K. Cizmarik, Counsel IP Summer Academy 2016 Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 Overview of Litigating in the United States • Types of Courts • Pre-Complaint Investigation • Complaint – Filing of Complaint – with Court – Service of Complaint – on Defendant • Pre-Answer Motions • Answer – Responses – Affirmative Defenses – Counterclaims – Cross-claims • Discovery • Pre-Trial Motions • Trial • Appeal 2 © 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Commencement of a U.S. Civil Lawsuit – Pleadings and Jurisdiction IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016 Federal Courts in United States • United States Supreme Court (Highest Appellate Court) • United States Court of Appeals (Intermediate Appellate Court) • 13 Circuits throughout the United States, typically consisting of several states and/or U.S. territories – Law can be different in each Circuit until the Supreme Court speaks on the issue • Federal Circuit – handles appeals of patent cases, both arising from the district courts and from the International Trade Commission (ITC), as well as appeals from the Patent Trial and Appeal Board (PTAB); appeals from the Federal Circuit are heard by the Supreme Court, at the latter's discretion. • D.C. Circuit – handles appeals of some administrative agencies, e.g., Federal Communications Commission; does not handle patent appeals from the ITC. • United States District Courts (Trial Court) • One or more district courts in each of the 50 states, as well as the District of Columbia, Puerto Rico, U.S. -
1 in the United States District Court for the Northern
Case 3:13-cv-04150-M Document 57 Filed 03/31/15 Page 1 of 29 PageID <pageID> IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION CONTINENTAL INSURANCE COMPANY, § § Plaintiff, § § NNo. 3:13-cv-4150-M v. § § DAVID DAWSON, § § Defendant. § MEMORANDUM OPINION AND ORDER Before the Court are the following Motions filed by Defendant: Motion to Dismiss for Lack of Subject Matter Jurisdiction [Dkt. No. 23], the Motion to Dismiss for Lack of Personal Jurisdiction [Dkt. No. 23], the Motion to Dismiss for Improper Venue [Dkt. No. 23], the Motion for Summary Judgment [Dkt. No. 23], and the Motion to Transfer Venue [Dkt. No. 26]. Plaintiff has filed a Cross-Motion for Summary Judgment [Dkt. No. 50]. For the reasons provided herein, the Motion to Dismiss for Lack of Subject Matter Jurisdiction is DENIED. The Motion to Dismiss for Lack of Personal Jurisdiction is DENIED. The Motion to Dismiss for Improper Venue is DENIED. Defendant’s Motion for Summary Judgment is GRANTED, and Plaintiff’s Cross-Motion for Summary Judgment is DENIED. The Motion to Transfer Venue is DENIED as moot. I. FACTUAL AND PROCEDURAL BACKGROUND This action was commenced by Continental Insurance Company (“Continental”), as assignee of Aetna Life Insurance Company, of Hartford, Connecticut (“Aetna”), against David Dawson (“Dawson”). Continental is a foreign insurance corporation doing business in Texas, 1 Case 3:13-cv-04150-M Document 57 Filed 03/31/15 Page 2 of 29 PageID <pageID> and is incorporated under the laws of Pennsylvania, with its principal place of business in Illinois.1 Dawson resides in Colorado.2 On November 16, 2007, Dawson was seriously burned in a dangerously hot shower while working for Hill International, Inc. -
In the United States District Court for the Western District of Virginia Roanoke Division
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION HARTFORD LIFE AND ACCIDENT ) INSURANCE COMPANY, ) ) Plaintiff, ) Civil Action No. 7:11cv411 ) v. ) ) CHARLES PATRICK KING, et al., ) By: Michael F. Urbanski ) United States District Judge Defendants. ) MEMORANDUM OPINION In this insurance interpleader case, plaintiff Hartford Life and Accident Insurance Company (“Hartford”) asks the court to grant its motion for summary judgment, dismiss it from this action, and award it attorney’s fees and costs. (Dkt. #15.) Defendant Charles P. King asks the court to grant his motions for default judgment and for summary judgment, ordering payment of the proceeds of the subject insurance policies to him. (Dkt. #s 17, 21.) For the reasons stated herein, all of these motions are DENIED at this time. I. On August 26, 2011, Hartford filed a Complaint for Interpleader against Charles P. King, Joan E. Gnegy, and the Estate of Ann Gnegy King (“the Estate”), pursuant to Rule 22(a)(1) of the Federal Rules of Civil Procedure as stakeholder of the proceeds of two group insurance policies as a consequence of the death of Ann Gnegy King. The complaint alleges that the benefits payable under each of these insurance policies exceeds $75,000 and that the court has subject matter jurisdiction over this case on both federal question and diversity of citizenship bases.1 Hartford requested and was granted leave to deposit with the court the $76,000 payable under the life policy, plus interest, and the $76,500 payable under the AD&D policy. (Dkt. #s 2, 5, 9.) The complaint alleges that Ann Gnegy King was killed on April 29, 2009, while inside her home. -
Examples of Meritorious Summary Judgment Motions
Examples of meritorious summary judgment motions By: Douglas H. Wilkins and Daniel I. Small February 13, 2020 Our last two columns addressed the real problem of overuse of summary judgment. Underuse is vanishingly rare. Even rarer (perhaps non-existent) is the case in which underuse ends up making a difference in the long run. But there are lessons to be learned by identifying cases in which you really should move for summary judgment. It is important to provide a reference point for evaluating the wisdom of filing a summary judgment motion. Here are some non-exclusive examples of good summary judgment candidates. Unambiguous written document: Perhaps the most common subject matter for a successful summary judgment motion is the contracts case or collections matter in which the whole dispute turns upon the unambiguous terms of a written note, contract, lease, insurance policy, trust or other document. See, e.g. United States Trust Co. of New York v. Herriott, 10 Mass. App. Ct. 131 (1980). The courts have said, quite generally, that “interpretation of the meaning of a term in a contract” is a question of law for the court. EventMonitor, Inc. v. Leness, 473 Mass. 540, 549 (2016). That doesn’t mean all questions of contract interpretation — just the unambiguous language. When the language of a contract is ambiguous, it is for the fact-finder to ascertain and give effect to the intention of the parties. See Acushnet Company v. Beam, Inc., 92 Mass. App. Ct. 687, 697 (2018). Ambiguous contracts are therefore not fodder for summary judgment. Ironically, there may be some confusion about what “unambiguous” means. -
Settlement Agreement and General Release
SETTLEMENT AGREEMENT AND GENERAL RELEASE For valuable consideration as hereinafter set forth, this Settlement Agreement and General Release ("Agreement") is entered into by and between Karen McDougal ("McDougal"), on the one hand, and American Media, Inc. ("AMI"), on the other hand, to memorialize their agreement with reference to the Recitals set forth herein. McDougal and AMI are collectively referred to herein as the "Parties," and any one of them is sometimes referred to herein as a "Party." This Agreement is made effective as of the date of the last of the Parties' signatures below (the "Effective Date"). RECITALS WHEREAS, McDougal is the plaintiff and AMI is the defendant in an action entitled Karen McDougal v. American Media, Inc., et al., Superior Court for the State of California, for the County of Los Angeles (the "Court"), Case No. BC 698956 (the "Action"), which contains a single cause of action for declaratory relief. WHEREAS, AMI has filed a Special Motion to Strike the Complaint in the Action pursuant to California's anti-SLAPP statute, Code of Civil Procedure § 425.16, and has requested that the Court award attorney's fees and costs against McDougal. WHEREAS, the Parties each deny any and all wrongdoing and liability. WHEREAS, the Parties wish to fully, finally and completely conclude the Action, together with all existing and potential claims, damages, and causes of action between them. And, as part of such resolution, the Parties wish to enter into a novated Agreement, which is attached as Exhibit A to this Agreement ("Exhibit A"). NOW THEREFORE, in consideration of the following covenants, obligations, undertakings and consideration, the sufficiency of which is acknowledged, the Parties expressly, knowingly, voluntarily and mutually agree as follows: AGREEMENT 1.