How to File a Joinder of Claims

Drafting Your Motion

Gather information related to the claims you want to join. To file a motion for joinder, you must first read the court rules that govern joinder of claims, along with any related published court opinions, to form a theory for why the additional claims should be joined or must be joined. The rule regarding the joinder of claims is Rule 18 of the Federal Rules of Civil Procedure. If the lawsuit is in state court, you'll have to find the corresponding state rule, which typically will be the same number as the federal rule or close to it. Generally, you can join any other claims you have against the other party in the lawsuit. If one claim is contingent on the outcome of the other, it may affect the damages you are awarded in the first claim. Types of claims that may be joined are classified as third-party claims, cross-claims, or counter-claims. Cross- and counter-claims are claims you're asserting against someone who is already a party in your lawsuit, while a third-party claim is one you make against someone who isn't (yet) a party. In most cases, the third party is later added as a party to the lawsuit. Cross-claims are asserted against someone who is on the same side of the original lawsuit as you (in other words, a fellow plaintiff or a fellow defendant). For example, if you were driving with your friend when you were hit by another car, you and your friend both may sue the other driver to recover damages for your injuries. If your friend turned around and sued you as the driver for his injuries, that would be a cross-claim. Counter-claims happen when you sue the other person back. An example of a counter-claim would be a situation in which your neighbor sued you blocking their driveway with your truck, and you sued them back claiming that their driveway actually was on your property.

Confer with the other side. Court rules typically require the parties in a civil case to meet and discuss the issue before a formal motion is filed. If the parties agree that on the outcome, they won't have to waste court time with a hearing on a motion. Briefly describe the other claim to opposing counsel and explain that you would like to join it to the existing lawsuit. Stress that joining the claims will make the process more efficient because everything can be handled at once. This argument will be especially persuasive if your additional claim is against that party – they may be a bit more skeptical about third-party claims. If the other party agrees that the new claim should be joined, you can submit a joint motion to the court. All the judge has to do is read it and grant the motion if he or she agrees. When you're asking to join a claim, this typically isn't very controversial – judges prefer to have fewer cases clogging up their dockets. If the other side doesn't want to go along with the joinder, you'll have to file a motion and have the judge decide.

Create your motion and notice of motion. The motion states what you want the judge to do, while the notice of motion tells the other side that you've asked the judge to do something. Both of these documents are fairly formulaic and can be copied from one filed in another case. These documents follow a standard formula. Ask the clerk of the court where the lawsuit has been filed for samples that you can use as guides. All you have to do is copy your caption and change any names or facts to fit your situation. The notice typically includes the date for the hearing on the motion as well. You won't know this until you've filed the motion and selected a date with the clerk, so you'll have to fill that in later.

Write your affidavit and memorandum. Courts typically require your motion to be accompanied by an affidavit, which lists the relevant facts in support of your motion, and a memorandum, which discusses rules and other legal authorities. Use the information you gathered when you were researching the rules to form the outline of your memorandum. A memorandum typically relies on legal research, but for a joinder of claims you typically won't need to worry about a lot of in-depth research. The rules are fairly clear-cut and joining additional claims isn't a particularly complicated issue. Your affidavit includes a list of facts that support the joinder of the new claim. If you've already filed a complaint or an answer, you know how to format this document. Use numbered paragraphs with one factual statement per numbered paragraph. Affidavits typically must be signed in the presence of a notary public. You are stating under penalty of perjury that the facts you listed in the affidavit are true and accurate to the best of your knowledge.

Prepare your proposed order. When you file a motion, you typically also must submit an order that you would like the judge to sign. If the judge rules in your favor and grants your motion, all he or she has to do is sign your order instead of drafting one from scratch. Like the motion and notice of motion, orders have a standard format and use essentially the same language. Ask the clerk of court for a copy of an order granting a motion for joinder of claims in another case. You can use it as a guide.

Filing Your Motion

Take your documents to the clerk of court. Once you've finished drafting your motion and supporting documents, you must take all of your originals along with two copies so the clerk can file them with the court. You must pay a filing fee to file your motion – typically $100 or less. If you've already been granted a fee waiver in the lawsuit, you won't have to pay this fee. If you've not yet applied for a fee waiver but believe you can't afford the fees, ask the clerk for an application. You'll have to provide information about your income and assets. The court will review them and if you fall below a certain threshold you won't have to pay any court fees for the remainder of the litigation. The clerk will stamp your documents "filed" with the date and give the copies back to you. One of those copies will be for your records; the other you must have served on the other party.

Schedule your hearing. Typically when you file your motion you'll need to look at the court calendar and schedule a hearing for your motion with the judge who's been assigned to hear your case. This procedure differs among courts. Some will have you look at the judge's calendar and choose a date – generally at least 30 days out from the date you filed your motion. In other courts, the clerk will choose a date for you. The chosen date is considered a proposed date. After reviewing the documents filed, the judge may cancel the hearing if he or she has no need to hear oral arguments on the motion. Once you have your date, you can fill it in on the notice of motion so the other party will know when it is.

Have the motion served on opposing counsel. After your motion is filed, you must get a copy of the motion itself along with any supporting documents to the other side so they have notice that you've asked the court to do something, and what you've asked the court to do. You can get a sheriff's deputy or private process serving company to hand-deliver the motion to the other party for you, or you can mail it using certified mail with returned receipt requested. You must file a proof of service form when the other party receives your motion. If you hired someone to hand-deliver it, they typically will take care of this for you. If you used certified mail, you'll have to fill out the form yourself when you get the green card back letting you know the documents were received. You can get a proof of service form from the clerk.

Wait for a response from opposing counsel. When the other side receives your motion they have a brief period of time to file a response if they want to oppose your motion. If the other side does not oppose your motion, the judge typically will cancel your hearing and grant the motion by default. You can check the court rules yourself to see how long the other side has to respond – it's typically no more than a couple of weeks. If the deadline passes and you haven't been served with anything, you can safely assume that the other side doesn't plan to oppose your motion. Keep in mind, however, that no opposition is no guarantee the judge will automatically grant your motion. If the joinder is permissive, the judge still has discretion over whether to join the claims, regardless of the thoughts of the parties. If you do receive an opposition memorandum, read it carefully. These are the arguments opposing counsel will make at the hearing to try to convince the judge he or she shouldn't allow you to join the extra claim to the existing lawsuit. Review any legal references cited in the opposition memorandum carefully and figure out a way to distinguish them or show that they shouldn't apply to your case. Although you aren't required to do so, you can write and file a reply to the opposition memorandum if you want. Your reply can only address things found in the opposition memorandum; it can't bring up new facts or additional arguments.

Presenting Your Motion

Arrive on your hearing date. If the judge still wants to hear oral arguments on the motion, you must show up on the date and time you proposed for the hearing and explain to the judge why you want him or her to join the new claim to the existing case. Try to get to the courthouse a little early so you have time to go through security at the courthouse entrance and find the correct courtroom. A half hour should be plenty of time, but you may want to allow a little extra if the courthouse is large or particularly busy. When you get to the courtroom, take a seat in the gallery. Judges typically hear many different motions in one day, so you may have to wait awhile before the judge gets to you. When the judge calls your case, indicate that you're ready to proceed and move to the front of the courtroom when you're told to do so.

Explain to the judge why the claims should be joined. Since it's your motion, you typically have the opportunity to speak first. Using the points you raised in your memorandum as a guide, present to the judge your arguments and the facts supporting the joinder of the claims. If the other side filed an opposition memorandum, use it to pre-empt some of their arguments. Make your point, and then mention their counter-argument and explain how it fails. Avoid reading your memorandum or parroting it word for word. The judge has already read it, and wouldn't be holding the hearing unless he or she expected to hear something else in oral arguments. Your strongest point in a joinder of claims motion typically relies on the efficiency of being able to litigate both claims at the same time. your other points should flow from that central argument.

Listen to opposing counsel's arguments. After you've finished your argument, the other side has the chance to explain why they oppose your motion and do not believe the new claim should be joined with the existing lawsuit. If opposing counsel says anything that you want to talk about, make a note of it. The judge may give you the opportunity to rebut the argument after opposing counsel is finished. Otherwise, avoid speaking out or interrupting, no matter how strongly you disagree with what the other party has to say.

Receive the judge's decision. When the judge has heard both sides, they will decide whether to grant your motion. If the judge rules in your favor, they may simply sign the proposed motion you submitted, or write their own. You will be expected to file documents pertaining to the new claim and have them served on opposing counsel. If the judge does not permit the joinder of the new claim, you will have to file a separate lawsuit if you still intend to pursue it.