Document Type



Since their inception in 1938, the Federal Rules of Civil Procedure have largely directed civil litigation procedures in American trial courts. The organization of the rules reflects the natural progression of a civil case from filing to enforcement. The rules have been periodically updated. At the outset and through the years, however, the rules have ignored certain party and non-party interests that are regularly considered during civil litigation. The Federal Rules of Civil Procedure have always been tailored chiefly to trials, and more recently to settlements of claims between named parties. The rules focus on formal pleadings of alleged breaches of substantive rights involving named parties. Yet many civil cases also concern important party and nonparty interests beyond those in the presented claims. For example, in personal injury cases, the true conflicts are often not over the pleaded claims, but over related interests including attorney's contingency fees; hospital, physician, worker's compensation or other liens; subrogation; insurance coverage; indemnification; and contribution. The absence of written rules governing party and nonparty interest has led to misfortune. Given the continuing recognition and, in many instances, the expansion of nonparty interests in personal injury and other civil cases, it is time to rewrite the Federal Rules of Civil Procedure and other American civil procedure laws to better reflect the way the civil justice system truly operates. This Article demonstrates how American trial courts often deal with party and nonparty interests that are outside pleaded claims and are largely unrecognized in written civil procedure laws. The Article illustrates, using Kokkonen v. Guardian Life Insurance Company of America, 511 U.S. 375 (1994), a case where the Court set out guidelines for ancillary jurisdiction. Ancillary jurisdiction is relevant to both private party and non-party interests at many stages of civil litigation. This Article explores four stages: (1) the early search for subject matter jurisdiction, (2) the presentation of claims for resolution, (3) the pretrial conference, and (4) the enforcement of judgments. The Article demonstrates the need for written civil procedure laws that better reflect the dispute resolutions occurring in American civil trial courts. In addressing questions arising from Kokkonen, the Article asks: How might ancillary authority, as defined in Kokkonen, govern private party and nonparty interests in subject matter jurisdiction, claim presentation, pretrial conference, and judgment enforcement? When ancillary jurisdiction encompasses private party and nonparty interests beyond presented claims involving named parties, are the necessary procedures set forth in written civil procedures laws? If not, have difficulties resulted? And, how might any such difficulties be addressed by new written civil procedure laws?

Publication Date


Original Citation

Jeffrey A. Parness, Recognizing Party and Nonparty Interests in Written Civil Procedure Laws, 20 Rev. Litig. 481 (2001) (with Dan Sennott).


College of Law

Legacy Department

College of Law



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