The New Federal Rules of Procedure As Compared with the Former Federal Equity Rules and the Wisconsin Code, 23 Marq
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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. -
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. -
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. -
Initial Stages of Federal Litigation: Overview
Initial Stages of Federal Litigation: Overview MARCELLUS MCRAE AND ROXANNA IRAN, GIBSON DUNN & CRUTCHER LLP WITH HOLLY B. BIONDO AND ELIZABETH RICHARDSON-ROYER, WITH PRACTICAL LAW LITIGATION A Practice Note explaining the initial steps of a For more information on commencing a lawsuit in federal court, including initial considerations and drafting the case initiating civil lawsuit in US district courts and the major documents, see Practice Notes, Commencing a Federal Lawsuit: procedural and practical considerations counsel Initial Considerations (http://us.practicallaw.com/3-504-0061) and Commencing a Federal Lawsuit: Drafting the Complaint (http:// face during a lawsuit's early stages. Specifically, us.practicallaw.com/5-506-8600); see also Standard Document, this Note explains how to begin a lawsuit, Complaint (Federal) (http://us.practicallaw.com/9-507-9951). respond to a complaint, prepare to defend a The plaintiff must include with the complaint: lawsuit and comply with discovery obligations The $400 filing fee. early in the litigation. Two copies of a corporate disclosure statement, if required (FRCP 7.1). A civil cover sheet, if required by the court's local rules. This Note explains the initial steps of a civil lawsuit in US district For more information on filing procedures in federal court, see courts (the trial courts of the federal court system) and the major Practice Note, Commencing a Federal Lawsuit: Filing and Serving the procedural and practical considerations counsel face during a Complaint (http://us.practicallaw.com/9-506-3484). lawsuit's early stages. It covers the steps from filing a complaint through the initial disclosures litigants must make in connection with SERVICE OF PROCESS discovery. -
United States District Court
Case 1:05-cv-00195-AWI-SMS Document 63 Filed 11/08/05 Page 1 of 17 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ERNEST MERRILL, et al., ) 1:05-cv-00195-AWI-SMS ) 10 Plaintiffs, ) ORDER DENYING PLAINTIFFS’ MOTION ) TO CONSOLIDATE ACTIONS AS MOOT 11 v. ) (DOC. 18) ) 12 COUNTY OF MADERA, et al., ) ORDER DENYING PLAINTIFFS’ MOTION ) TO JOIN PARTIES, PERMIT A 13 Defendants. ) SUPPLEMENTAL PLEADING ALLEGING A ______________________________) COUNTERCLAIM, IMPLEAD THIRD 14 COUNTY OF MADERA, ) PARTIES, AND FOR MANDATORY ) JOINDER (DOCS. 18, 34) 15 Counter-Claimant, ) ) ORDER GRANTING IN PART THE 16 v. ) PARTIES’ REQUESTS THAT THE COURT ) TAKE JUDICIAL NOTICE OF DOCUMENTS 17 ERNEST MERRILL, et al., ) FILED IN REMANDED ACTION NO. ) 1:05-CV-00559-AWI-SMS 18 Counter-Defendants.) ) 19 ) 20 I. Background 21 On September 9, 2005, Plaintiffs Ernest and Lila Merrill 22 filed their first amended complaint, in which they sued the 23 County of Madera, two employees thereof (Basch, a code 24 enforcement officer, and Meyers, who issues permits), and Gary 25 Gilbert, a member of the County Board of Supervisors, alleging 26 that the County and its agents gave inconsistent advice 27 regarding, and required when the law really did not require, 28 1 Case 1:05-cv-00195-AWI-SMS Document 63 Filed 11/08/05 Page 2 of 17 1 permits to grade a road on their property which is the only 2 practical access to their property; denied a road permit in June 3 2002 and thereafter; wrongly cited Plaintiff for grading a road 4 without a permit; instigated -
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. -
Interpleader in Virginia Stephen E
University of Richmond Law Review Volume 13 | Issue 2 Article 9 1979 Interpleader in Virginia Stephen E. Baril University of Richmond Follow this and additional works at: http://scholarship.richmond.edu/lawreview Part of the Civil Procedure Commons, and the State and Local Government Law Commons Recommended Citation Stephen E. Baril, Interpleader in Virginia, 13 U. Rich. L. Rev. 331 (1979). Available at: http://scholarship.richmond.edu/lawreview/vol13/iss2/9 This Comment is brought to you for free and open access by UR Scholarship Repository. It has been accepted for inclusion in University of Richmond Law Review by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. INTERPLEADER IN VIRGINIA I. HISTORY Interpleader is a joinder device employed by a stakeholder (as the obligor is called) who does not know to which of several claimants he is or may be liable. It allows him to bring all of the claimants into a single proceeding, and to require them to litigate among themselves to determine who, if any, has a valid claim to the stake.) Although interpleader originated as a common law device whereby a defendant, in a limited number of circumstances, could protect himself from double vexation upon a single liability, it soon became an equitable rather than legal procedure.2 Interpleader had tremendous potential as a device of judicial economy. Not only did it enable the stakeholder to avoid the expense of defending against several vexing claims in separate suits and the hardship of potentially inconsistent results arising therefrom, but also it afforded the court a simple method of avoiding two suits where one would suffice. -
E-Filed Stephen B
1 SAMUEL J. MUIR (SBN 89883) E-FILED STEPHEN B. LITCHFIELD (SBN 284951) 2 Jun 18, 2015 5:00 PM COLLINS COLLINS MUIR + STEWART LLP David H. Yamasaki 1999 Harrison Street, Suite 1700 Chief Executive Officer/Clerk 3 Superior Court of CA, County of Santa Clara Oakland, CA 94612 Case #1-13-CV-258281 Filing #G-73804 4 (510) 844-5100 – FAX (510) 844-5101 By C. Pinacate, Deputy 5 Attorneys for Defendants McLARAND VASQUEZ & PARTNERS, INC., McLARAND VASQUEZ EMSIEK & PARTNERS, INC., MVE & PARTNERS INC., MVE + PARTNERS, 6 INC. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SANTA CLARA —DOWNTOWN DISTRICT 10 CILKER APARTMENTS, LLC, ) CASE NO. 1-13-CV-258281 Complex ) [Assigned to Hon. Peter H. Kirwan; Dept. 1] 11 Plaintiffs, ) ) NOTICE OF DEMURRER AND DEMURRER 12 vs. ) TO FIRST AMENDED COMPLAINT OF 13 ) PLAINTIFF CILKER APARTMENTS, LLC WESTERN NATIONAL CONSTRUCTION, ) 14 MCLARLAND, VARQUEZ & PARTNERS, ) Date: September 11, 2015 INC., GROUP M ENGINEERS, GENTRY ) Time: 9:00 a.m. 15 ASSOCIATES CONSTRUCTION ) Dept: 1 CONSULTANTS, LARCO INDUSTRIES, ) 16 FITCH PLASTERING, COURTNEY ) 17 WATERPROOFING, CELL CRETE, LOS ) NIETOS CONSTRUCTION, MADERA ) Complaint Filed: 12/26/13 18 FRAMING, KELLY DOOR, TARA ) FAC Filed: 03/20/14 COATNGS, LDI, ADM PAINTING, ) Trial Date: 02/01/16 19 ALLIANCE BUILDING PRODUCT, JOS. J. ) ALBANESE, ANDERSON TRUSS, ) 20 CALIFORNIA CLASSIC PAVERS, CASEY-) 21 FOGIL CONCRETE CONTRACTORS, ) CENTRAL COAST STAIRS, ) 22 COMMERCIAL ROOF MANAGEMENT, ) DAVEY ROOFING, INC., DEMETRIS ) 23 PAINTING II, INC., DOORWAY MFG., ) LANDSCAPE PROS, MULTI-BUILDING ) 24 STRUCTURES, PARK WEST, PYRAMID ) 25 BUILDERS, ROBECKS WELDING & ) FABRICATION, RYLOCK COMPANY, ) 26 SUMMIT WINDOW & PATIO DOOR, ) VANGUARD and DOES 1-100, inclusive, ) 27 ) Defendants. -
Answer, Special Defense, Counterclaim, and Setoff to a Civil Complaint a Guide to Resources in the Law Library
Connecticut Judicial Branch Law Libraries Copyright © 2011-2019, Judicial Branch, State of Connecticut. All rights reserved. 2019 Edition Answer, Special Defense, Counterclaim, and Setoff to a Civil Complaint A Guide to Resources in the Law Library Table of Contents Introduction .............................................................................................................. 3 Section 1: Admissions and Denials ............................................................................... 4 Figure 1: Admissions and Denials (Form) ................................................................. 12 Section 2: Special Defenses ....................................................................................... 13 Table 1: List of Special Defense Forms in Dupont on Connecticut Civil Practice ............. 26 Table 2: List of Special Defense Forms in Library of Connecticut Collection Law Forms ... 28 Table 3: Pleading Statute of Limitations Defense - Selected Recent Case Law ............... 29 Table 4: Pleading Statute of Limitations Defense - Selected Treatises .......................... 32 Figure 2: Discharge in Bankruptcy (Form) ................................................................ 33 Figure 3: Reply to Special Defenses – General Denial (Form) ..................................... 34 Figure 4: Reply to and Avoidance of Special Defenses (Form) ..................................... 35 Section 3: Counterclaims and Setoffs.......................................................................... 37 Figure 5: Answer -
The Federal Equity Power
Florida State University College of Law Scholarship Repository Scholarly Publications 1-2018 The Federal Equity Power Michael T. Morley Follow this and additional works at: https://ir.law.fsu.edu/articles Part of the Courts Commons, and the Jurisdiction Commons THE FEDERAL EQUITY POWER MICHAEL T. MORLEY INTRODUCTION ............................................................................................................................ 219 I. THE ORIGIN AND DEVELOPMENT OF EQUITY............................................................................. 224 II. AMERICAN EQUITY PRIOR TO ERIE .......................................................................................... 230 A. Equity Jurisdiction .............................................................................................................. 232 B. Equity Procedure ................................................................................................................ 236 C. Equitable Remedies............................................................................................................. 238 D. Equity and Substantive Rights ............................................................................................. 241 III. EQUITY IN THE POST-ERIE WORLD ......................................................................................... 244 A. Erie and General Law ......................................................................................................... 244 B. Guaranty Trust and Equity ................................................................................................. -
Plaintiff/Counter-Defendant, V. Defendant/Counter-Plaintiff. No. 16
Case: 1:16-cv-11715 Document #: 145 Filed: 01/24/18 Page 1 of 26 PageID #:<pageID> UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MIMEDX GROUP, INC., Plaintiff/Counter-Defendant, No. 16 CV 11715 v. Judge Manish S. Shah MICHAEL FOX, Defendant/Counter-Plaintiff. MEMORANDUM OPINION AND ORDER MiMedx filed this lawsuit against a former employee, Michael Fox. Fox responded by asserting various counterclaims against MiMedx. MiMedx now seeks to dismiss Fox’s counterclaims for breach of contract, defamation, and declaratory judgment. Fox also requests leave to amend his counterclaim to add claims under the Dodd–Frank Wall Street Reform and Consumer Protection Act, 15 U.S.C. § 78u- 6(h), and the Illinois Whistleblower Protection Act, 740 ILCS 174/1 et seq. For the reasons discussed below, both the motion to dismiss and the motion for leave to amend are granted in part, denied in part. I. Legal Standards To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint (or here, a counterclaim) must contain factual allegations that plausibly suggest a right to relief. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009); Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 826–27 (applying the Rule 12(b)(6) standard to the defendants’ counterclaim). The court must construe all factual Case: 1:16-cv-11715 Document #: 145 Filed: 01/24/18 Page 2 of 26 PageID #:<pageID> allegations as true and draw all reasonable inferences in the plaintiff's favor, but the court need not accept legal conclusions or conclusory allegations.