Three-Judge Panel Holds That Defendant Sued In One Capacity Cannot Bring Cross-Claim In A Different Capacity

The October 29 Memorandum and Order in Favors v. Cuomo, No. 11 CV 5632 (E.D.N.Y. Oct. 29, 2013), is the third decision of the three-judge panel presiding over challenges to New York’s state and federal legislative redistricting, which the Panel earlier noted courts have come to expect “at predictable ten year intervals” coinciding with the census.  After a pair of 2012 decisions that dealt more directly with the merits of the plaintiffs’ challenges under the Constitution and Voting Rights Act, see 881 F. Supp.2d 356 (E.D.N.Y. 2012), and 2012 WL 928223 (E.D.N.Y. March 19, 2012), the motion addressed in the October 29 order provided an occasion for the Panel (consisting of Circuit Judges Raggi and Lynch and District Judge Irizarry) to clarify a point of civil procedure that is not limited in application to decennial challenges to legislative redistricting plans.

The defendants in the case include New York State Senators from the majority and minority parties.  The minority members asserted a cross-claim against the majority members alleging that the majority’s proposed redistricting plan violated the equal population requirement of the Fourteenth Amendment, which requires that each of the state’s electoral districts have equal populations, in order to conform to the principle of one person, one vote.  See Favors v. Cuomo, 2012 WL 928223, at *3 (E.D.N.Y. March 19, 2012).  The majority members moved to dismiss the cross-claim for lack of standing and res judicata.  The Panel granted the motion based on the standing argument, and declined to rule on the res judicata argument.  The court ruled that the legislators, who are sued in their official capacities, do not have the requisite personal stake in the equal population claim to confer standing on them to bring the claim.  In other words, the Court rejected the concept of “legislative standing.”   No new ground there.

What is new, the Panel explained, was the next step:  the Panel went on to hold that even if the minority party legislators could establish that they were personally harmed as voters in underrepresented voting districts, so as to give them a personal stake in the equal population claim, they would not be permitted to assert a cross-claim in their personal capacities when they had been sued in their official capacities.  The minority argued that their cross-claim should be allowed under Rule 13(g), which permits a “party” to bring a cross-claim against a “co-party.”  Finding nothing in the Circuit case law or Advisory Committee notes interpreting these terms, the Panel imported the Circuit’s interpretation of analogous language in the rule for permissive counterclaims, which also refers to an “opposing party” bringing a counterclaim.  The Circuit has interpreted that language to mean that a defendant sued in one capacity cannot bring a counterclaim in another capacity.  The rationale is that “each of a person’s different legal capacities constitutes a separate “’party.’”  Under Favors v. Cuomo, this rule now applies to cross-claims, meaning that a defendant sued in one capacity will not be permitted to bring a cross-claim in a different capacity.