Warring Teammates: Standing to Oppose a Co-Party’s Motion for Summary Judgment

40 Pages Posted: 27 May 2010 Last revised: 7 Jun 2012

See all articles by Jonathan Adam Wolfson

Jonathan Adam Wolfson

McGuireWoods LLP; University of Virginia - School of Law, Alumnus or Degree Candidate Author; Washington University in St. Louis - Department of Economics

Date Written: September 12, 2011


When two defendants are sued for one tort and one co-defendant seeks 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 developed.

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.

Keywords: Summary Judgment, Oppose Motion, Civil Procedure, Standing, Co-Party, Joint Tortfeasor, Co-Defendant, Standing to Appeal, Intervention, standing to oppose a co-party's motion, opposition to motion

JEL Classification: K41, K13, K21

Suggested Citation

Wolfson, Jonathan Adam, Warring Teammates: Standing to Oppose a Co-Party’s Motion for Summary Judgment (September 12, 2011). Drake Law Review, Vol. 60, No. II, Winter 2012, Available at SSRN: https://ssrn.com/abstract=1616393

Jonathan Adam Wolfson (Contact Author)

McGuireWoods LLP ( email )

Bank of America Corporate Center
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Charlotte, NC 28202-4011
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University of Virginia - School of Law, Alumnus or Degree Candidate Author ( email )

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Charlottesville, VA 22903
United States

Washington University in St. Louis - Department of Economics ( email )

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St. Louis, MO 63130
United States

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