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Chapter 8


This Chapter examines various devices that either enlarge the number of claims between the existing parties to a litigation, or bring new parties into the litigation. Again, the emphasis is on the devices available under the Federal Rules. The most important concepts in this Chapter are:

  • Counterclaims: A “counterclaim” is a claim by a defendant against a plaintiff. The Federal Rules provide for both “permissive” and “compulsory” counterclaims. FRCP 13.
    • Compulsory counterclaim: If D’s counterclaim arises out of the same transaction or occurrence as P’s claim, it is a “compulsory” counterclaim. If D does not assert her compulsory counterclaim, she will lose that claim in any future litigation.
    • Permissive: Any claim that does not arise out of the same transaction or occurrence as P’s claim is a “permissive” counterclaim. D does not lose her counterclaim in future litigation if she declines to assert it in the first suit.
  • Joinder of claims: Under the device of “joinder of claims,” once a party has made a claim against some other party, he may then make any other claim he wishes against that party. FRCP 18(a).
  • Joinder of parties: Under the device of “joinder of parties,” multiple plaintiffs may join together, or a plaintiff may sue multiple defendants.
    • Permissive joinder by plaintiffs: Joinder done at the discretion of the plaintiff(s) is called “permissive” joinder. FRCP 20. Multiple plaintiffs may (but need not) join together in an action if they satisfy two tests (1) their claims for relief must arise from a single “transaction, occurrence, or series of transactions or occurrences,” and (2) there is a question of law or fact common to all plaintiffs which will arise in the action.
    • Permissive joinder of defendants: If one or more plaintiffs have a claim against multiple defendants, these defendants may be joined based on the same two tests as plaintiff-joinder. That is, claims against the co-defendants must: (a) arise from a single “transaction, occurrence, or series of transactions or occurrences”; and (b) contain a common question of law or fact.
    • Compulsory joinder: There are certain situations in which additional parties must be joined, assuming the requirements of jurisdiction can be met. Such joinder is called “compulsory” joinder. The basic idea is that a party must be joined if it would be uneconomical or unfair to litigate a claim without her. FRCP 19. (There are two sub-classes involving compulsory joinder: “necessary” parties and “indispensable” parties. Necessary parties must be joined where possible, but the action can go on without them if joinder is made impossible by jurisdictional problems; indispensable parties are ones so vital that the action must be dismissed if they cannot be joined.)

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