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Last Rev. 10/29/16 10:50am

Procedural Types of Actions

There are various choices for the assertion of legal claims. I call these choices procedural types of lawsuit, including:

  1. Single Plaintiff. A Single Plaintiff against 1 or more defendants - the most typical procedural type of lawsuit
  2. Joinder. Joinder (of multiple plaintiffs) - when two or more persons (i.e., legal entities) get together as plaintiffs in a single lawsuit, this is called, technically, a "joinder" of the parties plaintiff. I am the attorney for about 140 plaintiffs in a single action. It is not a class action because I have made separate allegations as required to support a "Single Plaintiff" complaint for each of the 140 plaintiffs, and also because there is no allegation in the complaint that any of the plaintiffs are attempting to function as the representative of any persons not identified by name as a plaintiff in the complaint.
  3. In parens patriae - In parens patriae litigation is where an official such as the attorney general files a complaint claiming to represent the group of affected residents of the state. The phrase means that the state is acting as the parent of the persons attempted to being represented and can be viewed as a special type of "class action". Along these lines, one could also consider an action by a town or village on behalf of its residents is a form of "class action", but the courts do not require the attorney general or a town, village, city, county or state to comply with the class-action rules applicable to individuals, non-governmental organizations or for-profit corporations or other business entities trying to represent others in an actual or purported "class action".
  4. Class Action. A Class Action is a lawsuit in which one or more plaintiffs claim to represent a described class of persons similarly situated; the Federal Rules of Civil Procedure permit a class action to be maintained on behalf of a group of defendants, although this is rarely seen; the named defendants would have to cooperate and agree to be the representatives of the missing defendants - perhaps in an effort to obtain rules binding on all members of an industry the named defendants from a single industry might agree to be class action defendants to enable a decision to bind their competitors - but the fact that the represented members of the class are competitors might be enough for the court to deny class action status because of a possible conflict of interest.
  5. Derivative Suit. A derivative suit is an action commenced by a shareholder or citizen on behalf of a business corporation, membership organization or even a government (such as a town or village government) alleging that the corporation or government refuses to bring the action; the plaintiffs' claim is "derivative" in that it is derived from the claim of the entity refusing to bring suit, and said claim is then being pursued by a shareholder or member of the entity refusing to bring suit, as a "derivative claim".
  6. Whistleblower Lawsuit. A "Whistleblowing lawsuit" is often called a "qui tam" lawsuit. In 1994, I wrote an article on the subject, available at
  7. HOW TO MAKE $1,000,000 AS A WHISTLEBLOWER (Under the United States False Claims Act). In the article I defined "qui tam" stating "First of all, the phrase "qui tam" is derived from a long Latin phrase "qui tam pro domino rege quam pro se ipso in hac parte sequiter", which means "a person who bring the action for the King as well as for himself". In my article, I described the origin of whistleblowing lawsuits, as follows:

    A 1903 New Jersey statute could have been the origin of the term "whistleblower statute", which various statutes are now called which relate to protection or incentives for those who report wrongdoing to the government.

    The New Jersey statute, NJ Laws of 1903, Chap. 257, section 35, created a $20 penalty for every failure by a railroad in New Jersey to ring a bell or blow a whistle at a railroad crossing. The statute went on to provide that 50% of the penalty was to be paid to the informer who commenced the action for recovery of the penalty, and the other 50% was to be paid to the county in which the violation occurred. Subsequently, in various New York decisions, the term "whistleblowing" and "whistleblower statute" came into use, which could well be a reference to the 1903 New Jersey statute which rewarded persons who sued for a railroad's whistleblowing failure.

    The phrase "qui tam" comes from English common law, and was a proceeding to enforce a state-imposed penalty brought by a private citizen, in exchange for a percentage of any recovery. Qui tam proceedings historically have been used as inducements for per sons with knowledge of wrongdoing to come forth and tell the government what they know. Also, the phrase "action by a common informer" has been used by the New York courts as the equivalent of "qui tam". Adams v. Dick, 103 Misc. 259 (Sup. Ct., N.Y.Co. 1918).

  8. Arbitration. Arbitration increasingly is taking place under rules of law with the result that the speed and low cost that originally brought users into arbitration proceedings has become slow and costly in many instances, thereby becoming less attractive. The state or federal government pays for the judges involved in the lawsuits commenced in public courts, but the parties themselves have to share the costs (to be read "legal fees") of the one or more arbitrators appointed by the arbitration body, and for litigants who could not afford a lawyer to litigate there will be a shock coming when the nearly broke party to an arbitration finds out that he/she is obliged to pay perhaps $10,000 to $25,000 in arbitrator's fees to be able to have the arbitration proceeding proceed. At this price, many individuals and small companies probably will opt for the courts to resolve their disputes, and will wind up in arbitration only because they are forced to do so when accepting the printed form of the major corporation which imposes arbitration on its customers because the arbitrators are apt to rule in favor of the major corporation providing so much repeat business to the arbitration group and its arbitrators.
  9. Mediation. Mediation is now a type of lawsuit because it does not reach a binding result in absence of agreement of the parties to be bound. It a negotiation process in which an intermediary, called a "mediator", through a series of conferences (first with both sides present, then with one side alone, and then the other, until another both-sides conference is held), to enable the mediator to find an acceptable solution to the problem that brought the parties to the mediation table, so to speak. When lawyers for a party to a lawsuit ask for mediation, they are doing no more than proposing to settle the action (something which happens to most lawsuits), but to do so using words that are understood by all to be an acceptable way to bring up settlement without appearing to have the weaker hand in the litigation process. Most judges encourage mediation because in the long run any judge wants to have a given case resolved however possible, through mediation, motions to dismiss or for summary judgment, through direct settlement or by trial, verdict, judgment and any appeals.