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Permissive Joinder of Claims & Parties

Civil ProcedureNortheastern University School of Law

Professor Margaret Woo

Three themes:

• 1) notice

• 2) “transactional” test

• 3) party autonomy

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Joinder: Modern U.S. civil process as distinguished from earlier common law and

other systems

• Liberal pleadings

• Broad Joinder• Whole controversy as the aim

• The “transactional” test

• Broad discovery• State power in private hands

• Deep bite, broad scope

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Joinder & Jurisdiction

• Joinder rules allow multiple claims and parties be brought in one litigation but does not confer jurisdiction. They deal with the structure of the law suit but do not deal with the court’s jurisdiction.

• If joinder of claim– is there federal subject matter jurisdiction over added claim?

• If joinder of party--Is there personal jurisdiction over joined party?

Permissive Joinder of Claims – Rule 18

• A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party

• Note: Why permissive? Is it really permissive?

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Rule 20 – Permissive Joinder of Parties

• Rule 20– Allows joining more plaintiffs & defendants

from (A) same t/o and (B) common question of law or fact

Compare:• Rule 21 Misjoinder and Nonjoinder

• with

• Rule 42 Consolidation/Separate trials

• Who is likely to use these rules?

• When in the course of litigation are these rules useful?

• How are the effects of these rules different?

Lopez v. City of Irvington

• What rules are involved here?

• What are the threshhold considerations? What are the discretionary considerations? Any significance?

• What’s the test for joinder of parties? What’s the meaning of transaction? Commonality? Other factors?

• Compare: “same transaction”?

• - parking tickets received by same plaintiff on different dates; traffic tickets (one for speeding; the other for parking) received by same plaintiff on different days;

• - different traffic tickets received by different plaintiffs issued by same officer on different dates;

• - different traffic tickets received by different plaintiffs and issued by different officers on different dates

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Simple joinder as applied:Carpenter v. Dee

• Can Nancy Carpenter join her various causes of action?

• What if Dee owed Carpenter $1000 on a debt incurred three months ago on a second car?

• What if Dee had borrowed $1000 from Carpenter after the accident and now refuses to repay that debt?

• Can Carpenter join Randall Dee, his brother, Ultimate Auto, McGill’s garage, Inc. and the manufacturer of the tires in the same case?

• What if Scott was injured in a similar accident a week later by Keefe, who also bought tires and a suspension lift from Ultimate Auto? Can Scott and Carpenter join as plaintiffs?

• What if Dee and Keefe were racing their jeeps when each tipped injuring Carpenter and Scott? Can Dee and Keefe be joined as defendants?

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Strategic considerations:Carpenter v. Dee

• Cost?

• Efficiency?

• Jury?

• Control?

• Res judicata?

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The Defendant Strikes Back: Counterclaims

Rule 13. Counterclaims

(a) Compulsory Counterclaims

(1) A pleading must state as a counterclaim any claim that – at the time of its service – the pleader has against an opposing party if the claim(A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction. . . .

Compulsory Counterclaim Exceptions:

• Rule 13 (a)(2)

• (A) when the action was commenced, the claim was the subject of another pending action; or

• (B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.

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Counterclaims Recapitulated

• Failure to assert compulsory counterclaim results in waiver: defendant barred from bringing it in separate suit.

• If it’s a compulsory counterclaim, federal court will have subject matter jurisdiction to hear the claim (supplemental jurisdiction will attach)

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Cross claim: Rule 13(g)

• A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim…

• Compare: rule 20

Podhorn v. Paragon Group, Inc.

• How did defendant challenge this litigation?• What was plaintiff’s response to challenge?• Did trial court agree with plaintiff’s argument?• Compare: Podhorn’s claims in his present

complaint with:• - What if Podhorn had suffered serious injuries

because of the defect? Compulsory counterclaim?• - What about a conversion claim if the landlord

had entered the Podhorn’s apartment without their permission on June 15? Compulsory counterclaim?

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Wright, Miller & Kane: Federal Practice & Procedure

• “Transaction or occurrence” within rule 13(a):• - Are the issues of fact and law raised by the claim and

counterclaims largely the same?

• - Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule?

• - Will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s counterclaim?

• - Is there any logical relation between the claim and the counterclaim?

• Note: the term may have different shades of interpretation depending on whether it appeared in res judicata, jurisdiction, or federal joinder rules context. 16

Permissive joinder in Carpenter v. Dee

• What if after accident, Carpenter calls Dee’s workplace and tells them that Dee is an alcoholic? Does Dee have counterclaim for slander? Compulsory or permissive?

• What if Carpenter were allowed to amend complaint to add other defendants, what plausible crossclaims are available to Dee?

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Cross claim possibilities:

• Plaintiff sues manufacturer and dealer for injuries from defective product. Case in federal court under diversity jurisdiction. Plaintiff asserted defect in vehicle’s steering wheel.- What if M wants to assert that Dealer was responsible for any fault?

• - What if M wants to sue Dealer for failing to pay for several other delivered vehicles?

• - What if M wants to sue Plaintiff for repairs done on another car?

• - What if M and D both want to assert that there was no defect in the car and that the accident was the result of plaintiff’s negligence?

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A Review Hypothetical(20 minutes)

Plaintiff files suit against her employer in federal district court, invoking Title VII as a basis of jurisdiction and alleging sex discrimination as the reason for her dismissal from her job. Employer denies discrimination. Discovery proceeds. The case is more than a year old and on the eve of trial when plaintiff seeks to amend her complaint to add a state-law claim based on the tort of wrongful discharge--a firing for an unjust or unlawful motive; unlike the Title VII claim, the state law cause of action carries punitive damages. The statute of limitations on the wrongful discharge claim has run.

Suppose:

• 1) Assuming the federal court has subject matter jurisdiction, does the joinder rule (rule 18) allow this state law claim to be joined to the Title VII action?

• 2) does rule 15 allow plaintiff’s amendment? What’s defendant’s strongest argument? Does the added claim relate back?

• 3) What if defendant wants to counterclaim for tort that plaintiff had destroyed some office equipment while employed? Is this a compulsory counterclaim or permissive counterclaim? What does it depend on?

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Adding Additional Parties:

Abrams buys a Ford from Parmet Used Cars, co-signing note with Hackney. Car doesn’t work. Abrams & Hackney don’t pay loan:

- Suppose Abrams brought suit against both Ford and Parmet, can Parmet bring suit against Ford for refusing to pay for warranty work to repair Abram’s car? Compare rule 13(g)

- Abrams sues Parmet’s Used Car Sales only. Parmet counterclaims Abrams for remaining balance. Can she join Hackney as an additional party on the counterclaim as a matter of pleading? Compare 13(h)

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And there’s more

• Suppose Abrams only brought suit against Parmet, and there is a warranty agreement with Ford and Ford refuses to pay Parmet for warranty work to repair Abrams’s car? Can Parmet bring in Ford as a party in this litigation? See rule 14