Compulsory v. Permissive Joinder in Fed Civ Pro on the UBE / MEE
Compulsory vs. Permissive Joinder
One of the more common questions asked
concerning the topic of joinder is how to differentiate between compulsory
(mandatory) and permissive joinder. The distinctions between the two
types of joinder are always ripe for MBE questions wherein the examiners will
throw in a pertinent fact or conversely, a fact that would be deemed a
"red-herring" in order to throw you off the trail and make a mistake
in selecting your answer.
More often than not in a joinder MBE question,
we find both compulsory and permissive joinder as answer choices thereby the
necessity to understand the differences between the two becomes
imperative. As far as an MEE question is concerned, we must be mindful of
the facts and ultimately make a determination if joinder shall be deemed
compulsory or permissive.
With that said, let us take a look at the
difference between the two forms of joinder.
Joinder is
a process by which parties and claims are added to an ongoing lawsuit. The
typical litigation scenario begins with a plaintiff who enters into a lawsuit
by suing a defendant. The plaintiff has a claim against the defendant for which
he or she seeks some type of relief. However, sometimes another party has a
role in the lawsuit, or there may be additional legal claims which arose out of
the same controversy. In these situations, joinder may be invoked to combine
these parties and claims. As always, it is necessary to properly ascertain
whether jurisdiction may be acquired over the parties and claims before trying
to join them in a lawsuit.
As such, for compulsory joinder, keep in mind
the following three questions (might be best to note-card these questions for
later memorization and review):
1 - Should the absent party be joined?
To answer Question #1 we must
look to the three kinds of parties:
1 - A party of which in that
person's absence, the court cannot accord complete relief among existing
parties. In other words, situations where not bringing the outsider in would be
unfair to those already
in the action.
2 - A person claims an interest relating
to the subject of the action and is so situated that disposing of the action in
the person's absence may impair or impede the person's ability to protect the
interest.” In other words, situations where it would be unfair to the outsider.
3 - A person claims an interest relating
to the subject of the action and is so situated that disposing of the action in
the person's absence may leave an existing party subject to a substantial risk
of incurring double, multiple, or otherwise inconsistent obligations because of
the interest.
Recall that to answer Question
#2, we must not have any jurisdictional concerns such as personal, subject
matter, or even supplemental should that form of jurisdiction be required.
As far as Question #3 is
concerned?
If a party cannot be joined, what should you do? We
have three options. We can either (i) Let the case go on without the
absent party. (ii) Dismiss the case. (iii) Go forward without the absent party,
but try the judgment to provide appropriate relief to the parties. This
determination is left up to the court to decide.
For more information about compulsory vs. permissive
joinder or the bar exam in general, feel free to email us at PassYourBarExam@gmail.com
Good luck!
One of the more common questions asked
concerning the topic of joinder is how to differentiate between compulsory
(mandatory) and permissive joinder. The distinctions between the two
types of joinder are always ripe for MBE questions wherein the examiners will
throw in a pertinent fact or conversely, a fact that would be deemed a
"red-herring" in order to throw you off the trail and make a mistake
in selecting your answer.
More often than not in a joinder MBE question,
we find both compulsory and permissive joinder as answer choices thereby the
necessity to understand the differences between the two becomes
imperative. As far as an MEE question is concerned, we must be mindful of
the facts and ultimately make a determination if joinder shall be deemed
compulsory or permissive.
With that said, let us take a look at the
difference between the two forms of joinder.
Joinder is
a process by which parties and claims are added to an ongoing lawsuit. The
typical litigation scenario begins with a plaintiff who enters into a lawsuit
by suing a defendant. The plaintiff has a claim against the defendant for which
he or she seeks some type of relief. However, sometimes another party has a
role in the lawsuit, or there may be additional legal claims which arose out of
the same controversy. In these situations, joinder may be invoked to combine
these parties and claims. As always, it is necessary to properly ascertain
whether jurisdiction may be acquired over the parties and claims before trying
to join them in a lawsuit.
Permissive joinder of parties occurs when the claims arise
out of the same events and they involve the same legal questions. Two or more
plaintiffs may join together and sue a defendant. Alternatively, a plaintiff
may sue two or more defendants. Initially, the decision belongs to the
plaintiff as to whether to join two or more defendants in a lawsuit or to bring
separate lawsuits.
Compulsory
joinder on the other hand involves a party that is necessary to
the action. As a result, this type of joinder is often referred to as
“necessary” or “compulsory” joinder.
To determine if compulsory joinder exists we look to when
one of two conditions arise: (1) the party must be present in order to award
“complete relief”, or (2) the party has an interest in the action so that his
or her interest cannot be represented and protected without that party
appearing in the lawsuit. This also applies when the party's absence may expose
other parties to double or inconsistent outcomes. (More on the type of
party, below).
As such, for compulsory joinder, keep in mind
the following three questions (might be best to note-card these questions for
later memorization and review):
1 - Should the absent party be joined?
2 - If the outside absent should be joined,
can it be joined? Remember to address any problems with or of personal and
subject matter jurisdiction.
3 - If the outside absent should be joined
and cannot be joined, what happens?
To answer Question #1 we must
look to the three kinds of parties:
1 - A party of which in that
person's absence, the court cannot accord complete relief among existing
parties. In other words, situations where not bringing the outsider in would be
unfair to those already
in the action.
2 - A person claims an interest relating
to the subject of the action and is so situated that disposing of the action in
the person's absence may impair or impede the person's ability to protect the
interest.” In other words, situations where it would be unfair to the outsider.
3 - A person claims an interest relating
to the subject of the action and is so situated that disposing of the action in
the person's absence may leave an existing party subject to a substantial risk
of incurring double, multiple, or otherwise inconsistent obligations because of
the interest.
Recall that to answer Question
#2, we must not have any jurisdictional concerns such as personal, subject
matter, or even supplemental should that form of jurisdiction be required.
As far as Question #3 is
concerned?
If a party cannot be joined, what should you do? We
have three options. We can either (i) Let the case go on without the
absent party. (ii) Dismiss the case. (iii) Go forward without the absent party,
but try the judgment to provide appropriate relief to the parties. This
determination is left up to the court to decide.
For more information about compulsory vs. permissive
joinder or the bar exam in general, feel free to email us at PassYourBarExam@gmail.com
Good luck!
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