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Unformatted text preview: Exam: Counter/Cross Claims Class Actions Summary Judgment Directed Verdict Race Judicata Collateral Estoppel Claims and Counterclaims FRCP 13 Burlington, pp. 66065, Note 1, p.667 Note on parallel federal processing, p. 668 Cross-claims Rainbow, pp. 67478, Note asserting unrelated cross-claim, p. 681 Counterclaims 1. Compulsory : Rule 13(a); use it or lose it. Underlying policy concerns: efficiency and economy. A counter claim is compulsory if it arises out of the same transaction or occurrence that is the subject matter of the s claim (counterclaim must be pleaded) 2. 4 Part Transaction & Occurrence Test to define when a claim or counterclaim arises from the same transaction: (from Plant v. Blazer Financial Services ) State Courts will usually respect Rule 13(a); but it is not guaranteed. I.e., if you fail to pursue your compulsory counterclaim in federal Court, state Court will probably not allow a new suit on the same facts. a. Are the issues of fact and law raised by the claim and counterclaim largely the same? b. Would res judicata bar a subsequent suit on s claim absent the compulsory counterclaim rule? c. Will substantially the same evidence support or refute s claim as well as s counterclaim? d. Is there any logical relation between the claim and the counterclaim? 3. Permissive : Rule 13(b); everything else. 4. Exam Tip : Rule 13 pretty much allows a to counterclaim against a for anything he wants. Remember Pugsley said the title plaintiff doesnt mean squat in Tort law; it just means you filed first. 5. Diversity Actions : If your compulsory counterclaim under Rule 13(a) is could not be plead alone (<$75k or no diversity), invoke 1367 Supplemental Jurisdiction and be sure to use the buzzwords: a. Common Nucleus of Facts b. Same Case or Controversy Cross-Claims Rule 13(g) ( vs. ) 1. Always Permissive 2. Can invoke 1367 if claim wont stand alone. 3. Exam Tip : When in doubt, examine Transaction & Occurrence ; its pretty much the basis of everything in CivPro, so if youre blanking out, start writing about T&O. 3 rd Party Claims (Impleader) Rule 14 1. Adding New Parties : Theoretically, an infinite number of parties may be added to the action, from retailer to manufacturer, to each-and-every supplier involved along the way. 2. Exam Tip : Remember that every party added means you must establish personal jurisdiction over all these parties. Big exam points here. 3. Can invoke 1367 if claim wont stand alone. 4. 3 rd party s counterclaiming back will probably be compulsory because permissive counterclaims are usually transactionally related and therefore NOT subject to supplemental jurisdiction....
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This note was uploaded on 04/25/2008 for the course CIVIL PROC 101 taught by Professor Fullerton during the Spring '07 term at Brooklyn Law School.
- Spring '07