Simple Joinder/Rules 18 and 20

This episode is a tutorial lecture about the joinder of claims and parties under Rules 18 and 20, respectively.

Transcript

Copy Transcript Copied

Speaker 1 0:09

Welcome to the Civil Procedure Podcast. I am your host Thomas Maine , and this episode is about simple joiner . This episode is primarily about rules 18 and 20, but we will mention a couple of other rules as well, namely 21 and 42, but we get almost everywhere that we need with just rules 18 and 20. Now, rule 18 is primarily about joinder of claims, so we'll start there and then after that we'll talk about Rule 20, which is about joiner of parties. With regard to the joiner of claims, we have the broadest possible scope imaginable by design. You can join entirely unrelated claims. You can join inconsistent claims. There is no such thing as misjoinder of claims. You can join as many claims and as many different kinds of claims as you want, whether or not they are related. A really broad joiner rule makes sense for most cases because you can imagine that in any circumstances where a party A is suing a party, B, if A has multiple claims against B, probably at some level they're gonna be somewhat related and it makes sense to deal with them all at once. It's common that an encounter between A and B that goes bad could be multifaceted, such that you've got some claims under state law and others under federal law, some claims under statutes and some under the common law. Some are tort, some are contract, some are landlord tenant, but also summer towards the idea of unlimited joiner of claims then avoids any fights that might force A into bringing some, but not all of these claims or to force A instead to bring multiple suits against B. Well, a broad joiner , a rule avoids all of that. You can bring 'em all in one suit A , and you don't have to either pick and choose or to bring multiple suits. You can bring all of those claims in one action. The broad joined a rule allows any combination. So if you're suing your neighbor for trespass because they built a greenhouse on your property, but if that same neighbor is also a doctor who committed medical malpractice that caused you injury, you can bring both of those claims in the same suit. You can bring them in one suit even if there's no overlapping anything, no overlapping evidence, no overlapping experts, they aren't the same cause of action. One claim has absolutely nothing to do with the other yet, rule 18 allows that too . There is an escape hatch if this gets outta hand. Rule 42 gives judges discretion to order separate trials. So if the judge doesn't want to have the trespass involving the greenhouse tried simultaneously with the medical malpractice action, the judge can sever that under rule 42 and those trials would proceed separately. You'll want to remember that this expansive notion of joinder applies to every species of claims, not just original claims by the original plaintiff against the original defendant. It also includes counterclaims cross claims , third party claims. Now the prerequisites for each of those types of claims, counterclaims cross claims , third party claims, those are discussed in another episode, but once you have a claim that meets the prerequisite for bringing a counterclaim or a cross claim or a third party claim, remember that you can then use Rule 18 to join more claims to that third party claim to that cross claim . So it's almost impossible to get a joiner of claims issue wrong because any joiner of claims is allowed. Rule 18 imposes no constraint. To the contrary, it says you can join any claims that you want. I do wanna give you two warnings though. The first warning is that rule 18 only applies to the joinder itself. It doesn't mean that that additional claim that you're adding is gonna survive a 12 [inaudible] [inaudible] for example, or Rule 18 might be satisfied since it's always satisfied. But even if rule 18 is satisfied, that doesn't mean there's jurisdiction. So remember that Rule 18 speaks only to the joiner itself and with respect to the joiner of claims, rule 18 is extremely generous. The second warning, remember that rule 18 is at the top of the joiner . End rule 18 is policing the outer boundaries for joinder of claims. It's the max. It's not talking about the men , it's not talking about what claims must be included or should be included. That minimum or that lower boundary is not an issue of joinder . That's actually the doctrine of Claim Preclusion, which is the subject of another episode with Claim Preclusion. We will study the doctrine of what's referred to as claim splitting where the idea is if you bring some causes of action that arise out of an incident or a transaction or occurrence, but you don't bring all of the causes of action that arise out of that incident, you might be barred, you might be precluded from bringing a subsequent action. That's really all you need to know about Rule 18 and joiner of claims. Let's go on then to joiner of parties. Rule 20 controls the joiner of parties and joiner is an issue that shows up on both sides of the litigation. It applies to plaintiffs and to defendants. So if you have more than one plaintiff on the plaintiff side of the V in plaintiff versus defendant, or if you have more than one defendant on the defendant side of the V, then joinder of those parties is proper if and only if Rule 20 is satisfied. Just like we said with Rule 18, policing the outer boundary of joiner of claims Rule 20 is similarly only policing the outer boundaries of what is permissible joiner of parties. We are not here looking at the minimum boundary. We are not looking at what is necessary or required for joinder of parties. There is a rule that addresses who is minimally necessary and that's rule 19. Rule 19 describes what sort of parties must be included, must be joined in litigation, but Rule 19 is not part of an episode on simple Joiner has its own episode. There's also a tiny sliver of Preclusion law that pertains to the minimum joinder of claims. Litigation without certain plaintiffs or certain defendants could have some preclusive effects in subsequent litigation involving those missing parties. But that's an issue of Preclusion law. That too is not an issue about simple joiner . Rule 20, just like Rule 18 is about policing the outer boundaries of what is permissible. Now, we just discussed that Rule 18 had essentially no outer boundary, but there is an outer boundary with respect to the joiner of parties using Rule 18 as a reference point. From an efficiency standpoint, the worst case scenario with regard to allowing the joiner of any and all claims, the worst case scenario would be completely unrelated causes of action, but even there, by allowing unlimited join , we would only be expanding the scope of a lawsuit that already existed. These two parties are already suing each other. They're already adverse by contrast with Rule 20 in joinder of parties. The worst case scenario is administratively much more consequential, bringing in entirely new parties changes things. It's kind of like adding claims except on steroids because when you add parties, you're not just multiplying the number of issues, you're adding lawyers because those parties are gonna be represented and with more lawyers come more issues and more motions. Also, when you add additional parties, you create the potential for real unfairness where somebody can be brought into litigation about something that may have little or even nothing to do with them. In the old common law regimes, they had a great word for that kind of unfairness. There were objections to joinder on the basis that it was multifarious. That's a really great word that should be used more. And although we don't see that word used in Rule 20, we do see rule 20 trying to describe what type of joinder will be permitted at the outer boundaries, and what we see is that if you're gonna pursue claims as a cluster of plaintiffs or if you want to sue more than one defendant, rule 20 is policing that outer boundary with two prerequisites. It's a two-part test. Now, to be sure, many lawyers and even some judges will combine these into one part that's the lazy approach or could be a tactical move to mask the satisfaction of one part and not the other part. But the rule gives us a two-part test, both parts of which must be satisfied. The first part of the test requires that the claims against the joined parties arise out of the same transaction or occurrence or series of transactions or occurrences, the same t and o requirement. The idea here is that whether the parties being joined are part of the same litigable event, are they related in some important sense? Now, if you take advantage of those words, transaction occurrence, you've got a nice starting point. Contract cases usually involve a transaction. Tort cases usually involve an occurrence, so take the transaction or the occurrence that is relevant to the claims by one plaintiff against one defendant, and then work out from there and ask, is the claim by the second plaintiff or the claim against the second defendant, is that part of the same transaction or occurrence as that core claim when it's a products liability claim against the manufacturer and the seller? Well, it's easy to see how, oh, the product's liability claim against the manufacturer arose out of an occurrence. Yeah, that's the same occurrence. That is the basis for the product's liability claim against the seller, but we have issues when it gets trickier than that. So imagine for example, we begin with an auto accident where the plaintiff is suing the driver of the other car, so we'll call that defendant one. So let's work out from there. There's an auto accident where the plaintiff is suing the driver of the other car, defendant one, but the plaintiff is also suing defendant two who's the doctor who committed malpractice when the plaintiff went to the hospital for treatment for injuries caused by the accident. It's expanding out from the occurrence of the accident. Imagine in that case, we also have a plaintiff two suing that doctor for violating plaintiff two's privacy because when plaintiff number one was getting medical treatment, that careless doctor tweeted out the names of both the plaintiff one and plaintiff one's spouse, plaintiff two. Well , now we're expanding out with parties. It all stems from that original accident, but feel the expansion away from that original occurrence, and of course we could continue on. Imagine that plaintiff number one and plaintiff number two are also suing their landlord in this same suit for wrongfully evicting them. But the reason that the plaintiff one and plaintiff two were evicted was because they were unable to pay the medical expenses charged by the doctor who committed malpractice who was treating them because of the driver who caused the accident. It's expanding. We can do the same thing with a contract case. Plaintiff one , sue's defendant one , maybe defendant one is a former employee who left and is now a self-employed consultant, but D one breached a contract that required them to repay some expense, but plaintiff would also like to sue that same defendant and that defendant's new employer for copyright infringement, and we could imagine that the plaintiff would also like to sue some third defendant for misappropriation of trade secrets because some trade secrets got in the hand of that defendant three because of the employee who left their former employer and went to work for defendant number two, but also shared the secrets with defendant. Number three, that's how these cases expand. Now, our task ultimately is to say that those claims against those parties do or do not arise out of the same transaction or occurrence, and it's easy to see what the fight is about, but frankly, it's hard to analyze it without sounding conclusory. So I would encourage you to use three different tools just starting points for things to talk about. Tool number one is analyze proximity of time. Did these claims accrue at the same moment in time when they did that sort of is pushing these occurrences or transactions together? It's suggesting some sameness when you have some proximity of time. A second tool that gives you something to talk about so that you don't sound conclusory is to analyze proximity of space. Did these claims accrue in the same physical place? To the extent they did, it allows you to say, well, these are the kinds of things that are pushing the conclusion towards sameness to the extent that they occurred in different places. That allows you to articulate why you think that they didn't or why they might not be part of the same transaction or recurrence. The third tool is to link them up in a logical sequence. What is the logical connection? And essentially that's what we described above when we said, well, this occurrence triggered the visit to the hospital. The visit to the hospital triggered the malpractice. The hospital visit triggered the non-payment of rent leading to the wrongful eviction proceedings. That's the idea of a logical connection. It's just another tool for analyzing the sameness of a transaction or occurrence that is spread across multiple parties. The second part of the rule 20 test requires you to identify a common question of law or fact. This can be trickier than it sounds because you're trying to find a question that's generic enough to apply to multiple plaintiffs or multiple defendants, but also has to be specific enough that it's actually going to be disputed and litigated. It's usually easier to find common questions of fact, and the secret is to look at the opposite side of the V for your common question of fact . So if you're trying to justify or trying to analyze a joiner of plaintiffs P one and P two who are drivers of different cars, both of whom were injured by a third driver, and you are trying to analyze whether or not P one and P two are properly joined under rule 20, focus on the other side of the V, focus on the D, the defendant, the common mistake would be to focus on the P side of the V, the plaintiff's side and ask questions like, oh, is it The common question is, was there an injury that's wrong? It's wrong because the injury to plaintiff one and the injury to plaintiff two involved different questions. That's not a common question. Again, go to the other side of the V, ask questions about the defendant. How fast was the defendant driving? Was the defendant wearing her glasses? Was the defendant distracted? You can also focus on things about the scene that are not plaintiff specific. What was the weather? What was the timing sequence of the traffic lights? The way that I conjure these is that I imagine separate lawsuits. If you're trying to justify the joinder of two plaintiffs against a defendant, imagine two lawsuits, separate courtrooms, plaintiff one against D is in courtroom A, and then across the hall there's a lawsuit by plaintiff two against D in courtroom B, and then I imagine a witness who will be testifying in both of those courtrooms, and I think of a question that will be asked of that witness in both courtrooms. Indeed, this is the very purpose behind rule 20, is to avoid the inefficiencies associated with proving the same thing in multiple forums or multiple cases. The same thing can play out on the other side of the V. If you have one, plaintiff suing two defendants, D one and D two . The common mistake that I see students make would be to say that the common question is, was there a breach of duty or a breach of contract? Well, that's wrong because the answer isn't necessarily the same for both of those defendants. Those are different questions. Again, focus on the other side of the V. If you're justifying a joiner of two, defendants focus on the plaintiff, and again, imagine two suits in courtrooms A and B. Plaintiff is suing defendant one in one courtroom and across the hall plaintiff suing defendant two. Well, we could imagine what damages did plaintiff suffer? Did plaintiff mitigate their damages? One trick here is to force yourself on an exam to actually pose the question, the common question is, and then have a colon that requires you to complete that sentence with a question. If instead you say things like they're obvious questions of law and fact, because these these cases arise out of a single event. My response to that as a professor is, I think C , because you're not ready for court yet. When we are arguing before a judge, we need to expect her to ask us what is the common question of law or fact here? And our answer cannot be, well, those are obvious because all of this is about a traffic accident. I encourage you to identify common questions of fact because those are usually easier to spot, quicker at to spot. If you'd rather do a question of law, that's fine, but avoid the common mistake. The common mistake is to say that the common question is whether there was negligence or whether there was a violation of the statutes. Those are typically not common questions. Imagine for example, that H B O, the UH television network wants to sue a bunch of people who have unlawfully uploaded copyrighted content to some new social media site and H B O sues you and 25 other defendants is joinder proper two part test. We're talking here about the second part, so let's focus on a common question of law. It would be wrong to say that the common question is, was there a violation of the federal copyright statute that's wrong because some of those defendants might have violated it and some not. It's a common question, sure, but it's not necessarily a common shared answer. The only commonness in the question would need to be abstracted to something like, is this jurisdiction going to continue to recognize the viability of the federal copyright statute as a substantive right to recover? Well, in theory, I suppose that's a common question that would require a common answer, but we typically don't refer to some abstract general theoretical principle of law as the common question. Instead, here's what you wanna do. If you're trying to find a common question of law, look in the fact pattern for something distinctive that might require some modification or fine tuning of the substantive law. When I referred to that H B O hypothetical, I said that the 26 of you uploaded to a new social media site. Well, maybe there's something about that new social media site that is raising some interesting variation on the substantive law. Maybe it's owned by a foreign corporation, and the foreignness of that social media site raises some interesting question about how the law might apply differently. In light of that twist, or maybe there is something about HBO's identity that raises a new question. I look for facts in any fact pattern that might put some interesting spin on the existing law. If I see that all events occurred on Halloween, well, maybe they're different duties under the law on Halloween or if the plaintiff or if all of the defendants are churches. Maybe there's some legal question about freedom of religion that intersects with this hypothetical. You need something distinctive in the hypothetical to seize on and to argue or to suggest that there might be some interesting variation on the substantive law that is created by that wrinkle. Now, rule 20 joinder of parties is permissive. It's promoting efficiency and trial convenience, but it is not a requirement. Another purpose of Rule 20 is to expedite the final determination of disputes and to prevent multiple lawsuits. The rule permits joinder when it would be procedurally convenient, but it is not addressing when joiner is essential. Again, for the minimum boundary, the lower boundary, we're looking at rule 19, not rule 20. As we saw with rule 18, judges can essentially veto an otherwise permissible joiner . In this instance, it would be joiner of parties. Under rule 20, they can order separate trials. Rule 20 or rule 42 severing would achieve that result. And remember that even though we are policing an outer boundary in Rule 20 with our two-part test, misjoinder is not grounds for dismissal. Federal rule 21 reminds us of that if there is a misjoinder, the court's just going to drop the party or sever the action rather than dismissing anyone because of the misjoinder . One more doctrinal point of emphasis about Rule 20, rule 20 allows joiner in the alternative, that means that you can sue and join two defendants, even if only one of them may ultimately be responsible. So imagine a hypothetical involving three companies. We have Dell, a computer seller, we have Intel, a chip seller, and then imagine a third company as a chip maker , a subcontractor that Intel uses. So imagine that Dell enters into a contract with Intel to create a chip that meets Dell's specifications, Intel designs and contracts with the subcontractor to manufacture the chip, but on delivery, Dell refuses to pay Intel because the chips don't meet the specifications. When Intel doesn't get paid, it sues Dell for non-payment and it sues the chip maker , the subcontractor. In that situation, either Dell or the chip maker is liable, but probably not both. Either the chip meets the specifications in which case Dell has to pay up or the chip doesn't meet the specifications, in which case the sub breached its contract to Intel. In the language of Rule 20, those defendants are joined in The alternative and Rule 20 explicitly contemplates that it's consistent with the broader idea of allowing joinder when the claims arise out of a single transaction or occurrence. As my parting words, remember this, just because Rule 20 is satisfied doesn't mean that the claims state a claim under 12 [inaudible] [inaudible] . It doesn't mean there's jurisdiction. It doesn't mean that there aren't other flaws in those claims. Rule 20 is only addressing the propriety of the joiner itself. So remember to keep that limited focus when you're doing the two-part test of Rule 20. That concludes this episode of the Civil Procedure Podcast. Thank you for your attention and have a good day.