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Rule 42. Class Actions
(a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is
(1) joint, or common or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it;
(2) several, and the object of the action is the adjudication of claims which do or may affect specific property involved in the action; or
(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.
(b) Secondary action by shareholders. In an action brought to enforce a secondary right on the part of one or more shareholders in an association, incorporated or unincorporated, because the association refuses to enforce rights which may properly be asserted by it, the complaint shall be verified by oath and shall aver that the plaintiff was a shareholder at the time of the transaction of which he complains or that his share thereafter devolved on him by operation of law. The complaint shall set forth with particularity the efforts of the plaintiff to secure from the managing directors or trustees and, if necessary, from the shareholders such action as he desires, and the reasons for his failure to obtain such action or the reasons for not making such effort.
(c) Dismissal or compromise. A class action shall not be dismissed nor compromised without the approval of the court. If the right sought to be enforced is one defined in paragraph (1) of subdivision (a) of this rule notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. If the right is one defined in paragraphs (2) or (3) of subdivision (a) notice shall be given only if the court requires it.
Source: Federal Rule 23.
Oct. 29, 1940, eff. Sept. 1, 1941.
Change: In paragraph (b) the requirement of the Federal Rule that the petition allege “that the action is not a collusive one to confer jurisdiction, etc.” has been omitted.
Sept. 20, 1941, eff. Dec. 31, 1941
May 9, 1977, eff. Sept. 1, 1977
Dec. 5, 1983, eff. April 1, 1984
Oct. 9, 2003, eff. Jan. 1, 2004
(No. 22) Question: Where the owner of a portion of a royalty under an oil lease brings suit against the lessee to recover damages because of the breach of implied contract of reasonable development, is it mandatory that all persons who own portions of the royalty be joined?
Answer: This matter is dealt with by Rule 39 which provides that persons having a joint interest shall be joined in the suit. This rule is taken from Federal Rule 19, and under the annotations to the Federal rule it has been held a number of times that the phrase, "joint interest," should be construed to mean those who would be necessary in the sense of indispensable parties under the previous practice.
If under the previous practice all royalty owners were not necessary parties in such a suit, then it is the opinion of the committee that it would not be necessary to join them because of the adoption of new rules. On the other hand, if joinder of all would have been necessary under the old practice, then it is still necessary under the new rules.
The subcommittee calls attention to possible relaxations suggested by and under the conditions stated in Subdivisions (b) and (c) of Rule 39 and in Rule 42.
The subcommittee feels that the above general construction of the rule is as far as it can properly go in answering the question. In other words, the subcommittee feels that it should confine its interpretations to general explanation of the rules, and should not undertake to brief questions arising under the facts of specific cases.
In the above opinion the subcommittee consulted with and was aided by Roy W. McDonald.5 Tex. B.J. 287 (1942) reprinted in 8 Tex. B.J. 19 (1945).