Monday, June 18, 2012
Jonathan Wolfson, a Fifth Circuit clerk, has published "Warring Teammates: Standing to Oppose a Co-Party's Motion for Summary Judgment," 60 Drake L. Rev. 561.
summary judgment, who has standing to oppose the motion? Obviously the plaintiff
has standing to oppose, but what about the other co-defendant? Even supposing
the co-defendant has standing if the plaintiff opposes, is that standing
contingent on the plaintiff’s opposition? Current jurisprudence in federal
courts and prior scholarship are scarce and in disagreement which leaves parties
without ground on which to base their answers. A simple answer to this quandary
might assume parties sitting on the same side of a case may not oppose one
another (in the absence of cross-claims). This article contends that sides of
the case on which parties sit are an inappropriate focal point. The focus should
instead be on which side of a particular controversy parties stand. Individuals
opposed to co-party motions should have the opportunity to oppose because the
operative criterion is adversity of position.
The minimal judicial
consensus and legal literature discussing such a scenario creates prediction
problems for litigators in multi-party litigation. The lack of certainty may
generate confusion or even conflict between co-parties seeking to advance a
common objective – winning the lawsuit – while simultaneously advancing their
own unique interests – minimizing costs and damages for a particular client. The
unique interests can create a prisoner’s dilemma in which minimizing one party’s
losses may maximize a co-party’s. This article seeks to build a theory upon
which future legal consensus on co-party standing to oppose motions might be
This article derives and applies principles from appellate
standing and the right of intervention to support permitting co-party opposition
to motions. The “aggrieved” standard of appellate standing and intervention’s
justifications of “adequate representation” and “unique perspective” inform the
otherwise minimal development of a theory permitting co-party motion opposition.
Permitting opposition to co-defendant motions by co-parties would provide
predictability and ensure parties have their voices heard on issues of interest
without sacrificing courtroom efficiency.