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Civil Procedure I:  Outline  “Civil Procedure is:  The Sword & the Shield for your clients.”
I. The Court System Generally - An Adversarial System  [Note:  Ω = Rule]
A. Procedural System
1. Procedural Laws are set out for enforcing Substantive Rights.
a. Purpose of the Legal System:  Not “truth” or “objective facts”; these may be unknowable.  Interested in resolving conflicts between competing parties.  Procedures help ensure the resolution is conducted “fairly”.
2. Procedures are at the heart of Due Process (fundamental fairness in resolving disputes).
a. Assures consistent outcomes, not ad hoc decisions (in theory).
b. Parties are given opportunity to be heard and feel the process was fair.
c. Burden of Proof:  Since this is about Civil Actions, burden is on the π to prove claim is “more likely than not”.  Which is 50.1% or more; by a Preponderance of the Evidence.
(1) Burden Shifting:  Once the π’s prima-facie case has been made, the burden is on the ∆ to disprove it.  There are other times the burden can shift.
3. Due Process Sources:
a. U.S. Constitution, Amendment 5:  Guarantees Due Process in Federal courts.
b. U.S. Constitution, Amendment 14:  Applies the 5th Amendment Due Process right to the States.
(1) Doehr cases establish common law rules: that you must have a notice, a hearing, and opportunity to be heard to guarantee Due Process.
B. Judges’ Role
1. Judges = Decisions on procedure, issues of law. (Procedural law issues.)  Rarely a Fact Finder which is jury’s job (exception:  Bench Trials.)
a. Juries = Decisions on issues fact (the fact finder).  (The substantive law issues.)
2. Impartiality:  Courts and Judges should be impartial.  (Bands Refuse v. Fair Lawn)
a. Do not act on own initiative, instead on application/motion of one of the parties.  (in other words, rarely Sua Sponte)
b. Judges should have no direct or indirect interest in the outcome of the case.
c. Confines decisions to controversy before him.
d. Each side given ample opportunity to present case.
e. Judge decides the case solely on the evidence and arguments presented in court.
f. Must rule on existing issue, not a future issue; case must be “ripe”.
3. Judges help system run efficiently; should not coerce the parties, however.
C. Jurisdictions
1. Federal Courts are courts of Limited Jurisdiction.
a. Deciding on Federal Questions; and/or
b. Diversity of Citizenship (π & ∆ are from different states with a claim >$75,000+.
(1) Federal Courts use the state law where the controversy occurred to decide these cases. (Q for group:  Which state’s law is used?)
2. State Courts are courts of General Jurisdiction (can rule on most issues in the law of their states).
D. Justiciability (Article 3 of U.S. Constitution) - “Cases and Controversies”
1. Ripeness:  π’s requirement.  The readiness of a case for litigation; “a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.”
2. Standing:  π’s requirement.  π must have suffered an “injury in fact” and have a “personal stake” in the outcome.
a. π may have standing to seek one remedy but not another (example:  damages versus and injunction)
3. Mootness:  π’s requirement.  Must be an actual controversy in which the π has a stake.  Becomes moot if issue is resolved before trial.
4. Feigned or Collusive:  π’s requirement.  Courts will not hear cases that are fake; π must have true to desire to assert their rights.
E. The Competing Policies in Civil Procedure are:
1. Due Process (Constitutional required policy) versus
2. Judicial Efficiency (Conservation of court’s resources and desire to expedite resolution of conflicts)
II. Due Process, Pre-Judgment Remedies, & Post-Judgment Remedies
A. Due Process
1. Purpose:  To preserve the status quo until the trial is complete.
2. Ω Collateral Bar Rule:  Prevents any party from challenging a court order after violating it by claiming it was unconstitutional.
a. Court orders must be obeyed at the time of their issue; you must appeal the order at the time of issue.
B. Pre-Judgment Remedies
1. Ω64 = Seizing a Person or Property:
a. Must be done in accordance with state laws.
b. Test  for Seizures:
(1) Private interest affected (financial, property, et al.);
(2) There are adequate safeguards against erroneous deprivation/seizure;
(3) Is there an exigent circumstance that requires seizure?;
(4) Why does the moving party wish to seize X?;
(5) Cost of the judicial process of seizure is not excessive.
c. Specific Remedies:
(1) Arrest;
(2) Attachment;
(3) Garnishment;
(4) Replevin;
(5) Sequestration; and
(6) Corresponding or equivalent remedies.
2. Ω65 = Injunctions & Restraining Orders:
a. Preliminary Injunctions:
(1) Can’t be issued without notice and hearing;
(2) Must specify the terms of the injunction, the acts sought restrained, and parties whom it’s against.
(3) Ω applies to copyright impoundment.
b. Temporary Restraining Orders:
(1) Can be issued without notice or hearing only if:
(a) movant can show “irreparable injury, loss, or damage” will result;
(b) Expires after 14 days (unless judge extends).
(2) Must specify the terms of the injunction, the acts sought restrained, and parties whom it’s against.
(3) Ω applies to copyright impoundment.
(a) Test for Injunctions/TROs:
I. Strong likelihood π will win on the merits;
II. Does the π have an adequate remedy at law?;
III. Irreparable harm will occur if no injunction;
IV. Balance of hardship favors π;
V. Issuing TRO will serve public interest;
VI. Can the court administer the injunction as a practical matter?
C. Post-Judgment Remedies
1. Damages:  Money Judgments
a. Compensatory Damages:  Relief for actual injury suffered and measurable loss.  
b. Punitive Damages:  Designed to punish (for many reasons; almost always must have bad intent on part of the ∆).
c. Nominal Damages:  Usually reserved for Constitutional Violations/Damages without actual injury. Or for frivolous lawsuits.  (Carey v. Piphus)
(1) π’s counsel will often ask for Nominal damages so ∆ has to pay for attorney’s fees.
(2) Problems enforcing Damages:
(a) No Contempt of Court for failure to pay (must seek Ω64 remedy if this happens);
(b) Judgment is enforced against assets, not income;
(c) Loser may have no assets or refuse to tell you what assets they have;
(d) Some assets are exempt (clothes, furniture, et al.);
(e) Other creditors may have first position (bank, mortgage company, etc.);
(f) Bankruptcy forgives all debts, including judgments.
(3) Enforcement Mechanisms for Damages:
(a) Lien on Real Property:  Not worth much unless debtor wishes to sell property.
(b) Writ of Execution:  Orders the sheriff to “levy” an asset that is not legally exempt.
(4) THINK:  Important to consider whether you will get any money before commencing suit.
(a) Winning π is known as Judgment Creditor.  Losing ∆ is known as Judgment Debtor.
2. Equitable Remedies:  Issued when money judgments are insufficient (i.e. no remedy under the law & π will suffer irreparable harm).
a. Injunction:  See above Ω65 in Pre-Judgment section.
b. Declaratory Judgment:  Court declares the rights and legal relations of party seeking declaration, whether or not further relief is sought.
c. Specific Performance:  Ordering the ∆ to do something.  This remedy is almost always for contracts; what they agreed to do in a contract.
d. Enforcement of Equitable Remedies: (Common Law, no FRCP Ω)
(1) Criminal Contempt of Court:
(a) Violation of a court’s order, prosecuted as a crime.  π brings motion for this form of contempt, but the state prosecutes it.  ∆ has right to a jury trial unless it is a “petty offense” or less than $500 in fines.
(2) Compensatory Civil Contempt:
(a) The court directs defendant to pay plaintiff an amount that will compensate plaintiff for the harm cause by violation of the decree.  Not very persuasive, but a little money is better than nothing for π.
(3) Coercive Civil Contempt:
(a) Court imposes a penalty on the defendant in order to prompt future compliance with the decree of the court.  The penalty is contingent upon the defendant failing to comply with the order.  For example, IBM was fined $150,000 a day in a case until it agreed to turn over documents the court ordered.
3. Cost of Litigation:  
a. Each party bears cost of its legal fees;
(1) Encourages frugality;
(2) May prompt settlement.
b. Ω54 = Judgment; Costs.
(1) Costs (other than attorney’s fees) SHOULD be allowed to the prevailing party (unless a rule or order says otherwise);
(2) Attorney’s fees are recoverable by motion with lots of exceptions.
c. Lodestar Method of Calculating Attorney’s Fees:  Hours worked x Rate of the Attorney.
(1) Gives attorneys incentive to waste time.
D. Alternative Dispute Resolution (ADR)
1. Negotiation & Settlement (Most Informal):  Negotiation is typically done between lawyers before litigation is commenced.  Judges encourage this.
2. Third-Party Intervention (Informal):  Third parties can be brought in at any point in a negotiation or settlement promotion.
a. Mediation (Slightly Formal):  Most common of the two.  The mediator is the third party (the added ingredient to what would otherwise be a negotiation).  But the third party has no authority to decide who is right.  No rules govern mediation except by what the parties want.  If mediation fails, the dispute can be brought to trial.  Unlike trials which are adversarial by design, mediation seeks to build trust between the parties to reach resolution.  But it’s also to “sow doubt” in each side’s opinion about the other’s position; this is designed to bring them to help craft a solution.
b. Arbitration, Federal Arbitration Act of 1925 (Most Formalized):  Unlike mediation, the third-party -- the arbitrator --, has the authority to decide the case, not merely try to get the parties to agree on a solution.  Procedures in arbitration are determined by the parties involved, but typically are much like a court proceeding, simply much more flexibly conducted.  There is no appeal to the decision of an arbitration; save asking a court to vacate the award so that trial can be pursued; this is rare.
3. Policy for ADR:
a. Conducted Privately & Extrajudicially;
b. Less formal than court system; not as adversarial;
c. Quicker & Less Costly;
d. Lower Damage Awards than Jury Trials (benefits ∆).
4. Policy against ADR:
a. Conducted Privately & Extrajudicially;
b. Less formal than court system; not as adversarial;
c. Not bound by Court Procedures or Precedent;
d. Lower Damage Awards than Jury Trials (harms π);
e. Cannot appeal decision.
III. Commencement of the Action & Pleadings
A. Commencing the Action
1. Ω3 = Commencing an Action
a. A cause of action is commenced by filing a complaint with the court. (Complaints covered in Ω7.)
2. Ω4 = Summons
a. Two documents are related here:  The Summons and The Complaint.  Both must be served.
b. “Service of Process” means the process of serving a person, corporation, or entity named in the complaint.
(1) Form must be signed by the court clerk, seal of the court affixed, directed to ∆ with name, address, and time when to appear before court;
(2) Service = Summons + Complaint
(3) Service by someone 18+ years old and not a party to the suit;
(4) ∆ must file answer within 21 days of service unless they waive service;
c. Waiver of Service:  [ Benefit to the ∆ ]
(1) Does not mean you waive defenses;
(2) Grants ∆ 60 days to file answer if service is waived.
(3) Grants ∆ 90 days to file answer outside of the U.S.
d. Method of Service:
(1) Give to ∆ individually;
(2) Leave with someone of suitable age (14+);
(3) Give to authorized agent.
(4) To corporations:
(a) According to state law where chartered;
(b) To officer;
(c) Managing or general agent;
(5) U.S. Government:
(a) Serve upon the US Attorney in district where action is brought;
(b) CC: to the US Attorney General in DC;
(c) CC: to any non-parties included in suit.
e. Time Limit:
(1) If service is not done within 120 days of complaint’s filing, complaint will be dismissed;
(a) Unless:  Good cause can be shown to extend the time allowed to service of process.
B. Pleadings: Types [Our Concern:  Notice Pleading]
1. Code Pleading State:  Oregon.
a. ORCP 19:  Requires that Ultimate Facts be plead, not just conclusions.
b. Ultimate Facts = This means that to plead a cause of action, the pleader has to plead each element and also allege specific facts which, if proven with evidence at trial, would constitute proof of that element.
2. Fact Pleading:  Louisiana only.
a. Employs a system of fact pleading wherein it is only necessary to plead the facts that give rise to a cause of action.
3. Notice Pleading:  All Federal Courts.  Similar to Fact Pleading, but a little more is required.
a. This allows parties drafting pleadings to state their claims in general terms without alleging detailed facts to support each claim.
b. Purpose:  To relax the strict rules of code pleading.
c. Liberal Ethos:  The preferred resolution is a trial on the merits, after full discovery. Hence, courts make bad pleadings as good as they can.
C. Pleadings:  What’s in a pleading?
1. Ω7 = Pleadings Allowed; Form of Motions and Other Papers
a. Only these pleadings are allowed:
(1) A complaint;
(2) An answer to a complaint;  (note:  as stated in Ω4, ∆ must file answer within 21 days of service unless service is waived)
(3) An answer to a counterclaim designated as a counterclaim;
(4) An answer to a crossclaim;
(5) A third-party complaint;
(6) An answer to a third-party complaint; and
(7) if court orders one, a reply to an answer.
2. Ω8 = General Rules of Pleading
a. π’s Complaint:  Short and plain statement showing the pleader is entitled to relief; (this is the thing known as Notice Pleading)
(1) designed for clarity and to help attorneys on both sides avoid making mistakes (and inviting malpractice claims).
(2) π must allege facts concrete enough to warrant further proceedings (withstand a Ω12(b)(6) = Motion to Dismiss).
b. Jurisdiction:  Must have statement of grounds for jurisdiction;
c. Remedy:  Demand for relief sought.
d. Alternative Pleadings:  Inconsistent claims (Alternative Pleadings) are permissible (because π may not know exactly what happened until discovery is done);
e. Complaint shall be read in the light most favorable to the π;
f. ∆’s Answer must:
(1) Short and plain statement of the admission or denial of each averment in the complaint;
(2) Affirmative Defenses MUST be included in the answer to the complaint or they are forfeit. There are 19 defenses Ω8(c)(1).
(a) ∆ admits anything they do not specifically deny.
g. AVOID:  Do not plead information and belief because it informs ∆ what you can’t factually support.  Get as much factually right as possible.
3. Ω11 = Signed Pleadings, Motions, and Other Papers; Sanctions
a. Signatures:
(1) Each pleading or motion must be signed by attorney or the party (if unrepresented);
(2) Must contain address and phone number of attorney (or party if unrepresented);
(3) Unsigned documents are stricken.
b. Valid Inquiry:
(1) By presenting in court, attorney certifies they have “done their homework” (valid inquiry into the law and facts of their case);
(2) Not presenting case to harass, delay, or increase cost of litigation;
(3) Note:  This ALSO means attorneys can “fact gather” before filing anything; even do depositions or whatever they want (none of it however, can be used in court outside the court-supervised discovery process).  But it’s not barred.
c. Sanctions:
(1) Can be levied against attorney, law firm, or parties responsible for violation;
(a) After notice and chance to respond.
(2) Sanction by Motion:
(a) Must describe violating conduct;
(b) Safe Harbor:  Motion for sanctions must be served to adversary attorney and he/she has 21 days to correct or withdraw the pleading;
(c) Court can, at its discretion, award prevailing party attorneys fees (incurred for the motion only).
I. Unless exception circumstances, the law firm SHALL be held jointly responsible for violations of its associates, partners, employees.
(3) Sanction by Court:
(a) Court has discretion to sanction on its own, in the same fashion as attorneys.
(4) Nature of Sanctions:
(a) Monetary sanctions are assessed of the attorney only, not the party being represented.
(b) Court must issue an order to show cause if they issue monetary sanctions before party sanctioned 1) dismisses voluntarily, or 2) settles the claim.
(c) Ω11 does not apply to discovery; look to Ω37 = Discovery Sanctions.
(d) Monetary sanctions are only considered after alternative sanctions are explored.
I. Limited to what is sufficient to deter repetition of the offense.
D. Pleadings:  Exceptions to Notice Pleading [ Heightened Standard ]
1. Ω9 = Claims of Fraud or Mistake
a. Claims of Fraud or Mistake must be plead with particularity; (a heightened pleading standard)
b. Denial by ∆ must also be made with particularity;
c. Claims for special damages must be specifically stated.
d. Policy:  Heightened pleading standard protects ∆ from harm to reputation.
E. Pleadings:  What if pleading is lacking?
1. Ω12(e) = Motion for a More Definite Statement
a. It’s too vague:  Only granted if complaint is unintelligible (fails to meet Ω8(a) = Claim for Relief).
2. Ω12(f) = Motion to Strike
a. It’s irrelevant:  Redundant, immaterial, impertinent, scandalous, or insufficient defense.
b. Court on its own or oppposing counsel may make this motion.
3. Ω12(b)(6) = Motion to Dismiss
a. You have no case!:  Failure to state a claim upon which relief can be granted;
(1) First major hurdle for the π to overcome.
(2) Usually filed within 20 days of the complaint.
(3) Conley v. Gibson = Complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim.   Courts usually give leave to amend.  Contrast to Twombly & Iqbal.
(4) Bell Atlantic v. Twombly = 1.  Facts deemed to be true, not conclusory statements; 2. Complaint must be plausible on its face.
(5) Ashcroft v. Iqbal = “Facial Plausability” means π pleads factual content that allows content to draw reasonable inference that ∆ is liable...
IV. Defendant’s Response
A. Ω55 = Default Judgment [ Against ∆ ]
1. If ∆ fails to appear, default judgment for the π is entered;
a. Unless good cause can be shown, then default judgment can be set aside.  Common Law Test (from Darrah):
(1) Will the π be prejudiced?
(2) Does ∆ have a meritorious defense; and
(3) Whether culpable conduct of the ∆ lead to the default.
B. Ω12 Motions = Defenses and Objections [ Primarily ∆ Motions in answering a pleading; but not exclusively ]
1. Pre-Answer:  Only ONE pre-answer Rule 12 motion is allowed.
a. Includes all of the 7 defenses in 12(b) and 12(e)=More Definite Statement and 12(f)=Motion to Strike.
2. Answer:  If a 12(b) motion filed in pre-answer, then can only use 1, 6, & 7 later (1=lack of subject matter jurisdiction, 6=motion to dismiss, & 7=failure to join a party under Ω19).
a. Have 21 days to answer unless you waive service; then 60 days.
3. Pros & Cons of 12(b) Motions:
a. Pros:  Get more time to form answer, can flush out the π’s complaint a little more.
b. Cons:  You may point out of a flaw in the π’s case that they can fix, which otherwise would have worked to your advantage.
4. Timing After Ω12 Motion is Made:
a. If ∆ denied, ∆ has 10 days to file answer.
b. If ∆’s motion granted:
(1) π is granted leave to amend complaint; or
(2) Case is dismissed; or
(3) If 12(e) Motion for a More Definite Statement, π has 10 days to clarify complaint.
5. Ω12(b)(1) = Lack of Subject Matter Jurisdiction;  [ Most Favored ]
a. Rule 12(b)(1) & (6) & (7) not waivable & always available:  Because 12(b)(1) motions are so fundamental, they may never be waived throughout the course of litigation, and 12(b)(6) and 12(b)(7) motions may be filed at any time until trial ends.  These are the favored defenses.
6. Ω12(b)(2) = Lack of Personal Jurisdiction;
7. Ω12(b)(3) = Improper Venue;
a. This court is not the proper location for the suit.
8. Ω12(b)(4) = Insufficient Process;
a. Method of serving process was insufficient.
9. Ω12(b)(5) = Insufficient Service of Process;
a. Method of serving process was insufficient.
10. Ω12(b)(6) = Failure to State a Claim upon which Relief can be Granted [ Motion to Dismiss ]  [ Favored ]
11. Ω12(b)(7) = Failure to Join a Party under Ω19  [ Favored ]
a. There is someone else involved who was not served and joined in the claim also.
C. Ω60 = Relief from a Judgment or Order
1. Clerical mistakes in judgment orders can be corrected by the court anytime on its own initiative or by motion;
2. Relief from Final Judgment can be made for these reasons: (a-c must be made within 1 year after judgment)
a. Mistake, surprise, or excusable negligence;
b. Newly discovered evidence that could not have been discovered by due diligence;
c. Fraud, misrepresentation, or misconduct by adverse party;
d. Judgment was void;
e. Judgment has been satisfied;
f. Any other reason justifying relief.
D. Ω8(b) = Defenses; Admissions and Denials
1. Short and plain statement of the admission or denial of each averment in the complaint;
a. Failure to deny is admission;
b. Use specific denials; General denials create Ω11 problems.
2. ∆ can plead lack of sufficient information to admit or deny; this is taken by the court as a denial.
3. Affirmative Defenses MUST be included in the answer to the complaint or they are forfeit. There are 19 defenses Ω8(c)(1).
a. ∆ admits anything they do not specifically deny.
b. It’s ∆’s burden to plead any of the 19 Affirmative Defenses, if applicable:
(1) Res Judicata and Collateral Estoppel are included in this list;
E. Ω13 = Counterclaim and Crossclaim
1. Ω13(a) = Compulsory Counterclaim [ Use it or lose it. ]
a. Must state a Counterclaim from same transaction or occurrence or you lose it (think res judicata);
(1) Example:  Two cars collide. After one person sues for damage to her car and personal injuries, the defendant counterclaims for similar property damage and personal injury claims.  ∆ MUST bring counterclaim or lose it in the first trial.
(2) Counterclaims must have a logical relationship to the opposing party’s claims, even though they need not be identical. (Wigglesworth)
b. Can join parties under Ω20=Compulsory Joinder.
c. Crossclaims are optional and not mandatory; they can be claimed in a second lawsuit without prohibition.
2. Ω13(b) = Permissive Counterclaim
a. Does not arise out of same transaction or occurrence;
b. Can join parties under Ω20=Permissive Joinder.
F. Ω12(e) = Motion for a More Definite Statement
1. It’s too vague:  Only granted if complaint is unintelligible (fails to meet Ω8(a) = Claim for Relief).
V. Voluntary Dismissal and Altering Pleadings
A. Generally:  Why would π want to dismiss suit?
1. Insufficient pre-lawsuit inquiry; don’t have a case;
2. Not enough money to continue suit;
3. Client lied about strength of case.
B. Ω41 = Dismissal of Actions
1. Ω41(a) = Voluntary Dismissal (π motion)
a. By π’s motion before ∆ answers or makes a Ω56=Motion for Summary Judgment; or
b. By stipulation signed by all parties.
2. Ω41(b) = Involuntary Dismissal (∆ motion or Sua Sponte by the court)
a. ∆ can request for failure of π to comply with rules or orders of the court;
b. Unless the court otherwise states, any dismissal in Ω41 operates as “on the merits.”
C. Ω15 = Amended and Supplemental Pleadings [ Includes Relating Back ]
1. Amendments:
a. Party can amend ONCE before responsive pleading (either answer or reply);
b. Anytime within 20 days after responsive pleading is served;
c. Otherwise, must ask court.  Judges have broad discretion granting these motions, but motions to amend pleadings are usually granted.
2. Supplemental Pleadings:
a. Used to bring facts of the case up to date;
b. Example:  Landlord-tenant dispute, amended to bring amount of back rent up to date.
3. Relation Back of Amendments:
a. Moves the effective date of the amendment back to the date of the Original Pleadings (puts it within the Statute of Limitations);
(1) For example:  You file a complaint 10 days before the Statute of Limitations runs out.  Any amendments to this case are “related back” to the original filing date of the pleading so that they do not become invalid due to the SoL.  
(2) Ω4M=States that a ∆ must be served within 120 days; this is the period used for the maximum time the amendment can be made from the date of the original pleading.  So in the example, the amendment could be filed for 110 days more (10 days passed from the time of the filing).
b. Requirements:
(1) Notice must be given to ∆;
(2) ∆ must not be prejudiced;  (prejudiced=injured, limited in ability to defend yourself)
c. Applies only if:
(1) SoL may be extended with the court’s discretion if ∆ is aware or should have known that claim was being made against it before SoL ran out; or
(2) Misnamed parties were used; or
(3) Parties are co-tortfeasors, must be individually named and informed before SoL.
D. Ω12(c) = Motion for Judgment on the Pleadings
1. Once pleadings are closed, this can be filed;
2. Either party may file this motion;
3. If ∆ denies a single thing in his answer to a π’s 12(c) motion, this cannot be granted;
4. Only granted when answer consists entirely of affirmative defenses and the facts are conceded.
5. Becomes a Ω56=Motion for Summary Judgment if the parties bring in outside information and the judge considers it.
VI. Parties & Joinder
A. Generally:  Does the case have the correct parties?  Who can and/or must be joined?
1. Joinder:  Combining claims or parties (as π or ∆) into the same complaint and/or suit.  Joinder of claims is much more liberal than joinder of parties.
2. Policy for Joinder: A single action is more convenient and less expensive and time-consuming for the parties and the court.  Supreme Court says, “...joinder of claims, parties, and remedies is strongly encouraged.”
B. Ω17 = Plaintiff and Defendant [ Contains Real Parties in Interest ]
1. Who May Sue:  Suits may be brought by “the real party in interest” = the person who possesses the right sought to be enforced.
a. Fictitious names are permitted in rare circumstances (sensitive matters, sexually scandalous, et al.); but suit must have names.  Limitation is for the protection of Due Process rights of the ∆.
2. Anonymous filings are prohibited.
3. Subrogation is permitted:  Substitution of one person (or entity) in place of another with the substitute succeeding to the rights of the original person.  Common in insurance where losses paid to insured (subrogor) for damages by a third party happens; the insured’s pecuniary interest is ended at payment and the insurer has subrogated to the rights of the insured.  Then the insurance company (subrogee) based on this subrogation of rights can sue the third party for recovery of the damages it caused.
C. Ω18 = Joinder of Claims
1. π may join as many claims as it wishes against ∆;
2. This is liberally interpreted for the sake of judicial economy; combining claims into one trial is more efficient than trying each claim separately;
a. Under Ω42=Consolidation; Separate Trials the court can sever unrelated claims and order separate trials.
D. Ω14 = Impleader (3rd Party Practice)  [ Largely considered a ∆’s rule ]
1. The right of the ∆ to bring in a new party who may be liable for π’s claim against it;
a. ∆ can name 3rd party at any time after the commencement of the action up to trial;
2. Third parties brought into the suit must have “derivative liability”; i.e. liability for the damages the first ∆ is sued for.
a. Otherwise, it has to be a a different lawsuit.
3. Third Party Defenses:  3rd Parties MUST make Ω12 defenses, counterclaims, and crossclaims arising out of the same transaction.
4. Minors or Incompetents:  Can be represented in suit;
5. Severing:  Any party may move to sever a 3rd Party Claim into separate trial;
6. Plaintiff’s Impleader:  π can bring in 3rd party IF counterclaim is asserted against them.
7. Denial of Impleader:  Court will deny Impleader if it introduces prejudice to the parties.
8. Collateral Estoppel as Promoting Impleader:  Court should allow impleader if the issues are so closely related that parties may be Collaterally Estopped from bringing the issues in separate suits.
E. Ω19 = Compulsory Joinder  [ Largely considered a ∆’s rule ]
1. Necessary or Indispensable Parties:  (Necessary=Needed but not required; Indispensable=Must be present or π interests will be harmed.)
a. 19(a) = Necessary Party Determination:  If complete relief cannot be granted π without absent party; or
b. Absent party’s rights may be impaired; or
c. Joined party will be subject to double or inconsistent obligation without absent party;
(1) If any are YES, then party SHALL be joined (if Service of Process can be completed and joinder will not take away court’s jurisdiction).
2. If Compulsory Joinder is impossible:
a. A court may determine a 3rd Party “indispensable” and dismiss the case if they cannot be joined;
b. Factors to determine if 3rd Party is “indispensible”:
(1) Will judgment prejudice current parties?
(2) Can prejudice be reduced or avoided?
(3) Will judgment without absent party be adequate for π?
(4) Will π have an adequate remedy if the action is dismissed?
(a) Is there a different forum for the case where the necessary party can be joined?
F. Ω20 = Permissive Joinder
1. Anyone Can Join suit as π if:
a. Their claim arose from same transaction/occurrence;
b. Common question of law or fact;
2. Under Ω42=Consolidation; Separate Trials the court can sever unrelated claims and order separate trials.
3. Under Ω21=Misjoinder parties can be added or dropped from action as is just; claims can also be severed as needed.
G. Ω21 = Misjoinder and Nonjoinder of Parties
1. Misjoinder is NOT grounds for dismissal of the action;
2. Parties may be added or dropped at court’s discretion or by motion of the parties;
3. Claims can be severed and tried separately (court initiative only).
H. Ω22 = Interpleader [ Many claims against one fund. ]  >>> Use USCA §1335:  Far More Generous
1. A party faced with double or multiple liability (in the same “stake” = limited fund or property) from multiple parties may bring all claimants into a single proceeding (π or ∆; ∆ would Interplead by way of crossclaim or counterclaim).
a. Must contain a federal question greater than $10,000; diversity of citizenship of the parties;
2. Statutory Interpleader = USC §1335
a. Diversity of citizenship of the parties; claim for only $500 or more; payment into the court of a bond.
b. Has the bonus advantage of “nationwide service of process.”
I. Ω24 = Intervention  [ π’s motion ]
1. Device for an outsider, who has an interest in a lawsuit, to voluntarily join it as a party.
2. Right to Intervene:
a. To be an intervenor, the “interest” justifying intervention must be “a significantly protectable interest.”
b. Intervenor must show a possible impairment of their rights/interests;
(1) Can only be denied if their rights/interests will be adequately represented by the existing party.
3. Permissive Intervention:
a. Permitted when common issue of law or fact (judge has discretion);
b. Will intervention delay or prejudice the original parties?
4. Timliness of Intervention:
a. When should intervenor have known or should have known of their interest in the suit?
b. Will intervention prejudice existing parties?
c. Will intervenor be prejudiced if denied?
d. Are there unusual circumstances?