Chapter 17 Joinder After decision on where to file the suit, plaintiff must make an important decision about the

scope of the suit. Plaintiff must decide: (i) who defendant will be (ii) whether sue alone or with other plaintiffs (iii) what claims to assert against the defendants. What claims and parties she is going to join in the action. This chapter is about combining claims and parties in fed court. Other joinder devices addressed in the next two chapters (i) intervention (ii) interpleader (iii) necessary parties (iv) class action. Look for issues or questions of joinder of claims and joinder of parties. Do rules allow this or not? Need to know rules for joinder of claims, joinder of defendants, and joinder of co-plaintiffs. Joinder of Multiple claims under the federal rules Various approaches to the problem: (i) Rules may confine plaintiff to asserting a single claim. Other claims for other theories. (ii) Rules could allow plaintiff to bring any claims against defendant, so long as she seeks the same relief on those claims. I.e. if both claims seek money damages only. (iii) Rules may allow plaintiff to sue the defendant on any theory/claim and for any relief so long as the claims arise out of the same event. (iv) Rules may allow (more liberally), the plaintiff to sue the defendant on any claims arising from unrelated events. Many approaches have been tried. Which does Rule 18(a) adopt? The fourth approach. Rule 18(a): 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. Joinder of claims are asserted as different counts or claims for relief in a complaint. In conjunction with Rule 8(d)(3) a party must set forth as many claims as he has against an opposing party. Why does 18(a) allow unrelated claims to be joined? Why not? Parties are already in court, already have counsel, so why no settle all of the claims without the bureaucratic hassle of multiple claims/suits. Also, if only limited to related claims, time and money would be spent on deciding what was related or not. But, unrelated claims can become confusing to the jury and to the litigants. So Rule 42 (b) authorizes judges to order separate trials. Rule: For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, or third-party claims. Thus, plaintiff can control the scope of the complaint but the judge controls the course of litigation. Judge may sever claims Rule 21 or order separate trials. Claim preclusion. Can plaintiff bring in another claim that could have been joined earlier? Based on the same injuries? Probably not. Doctrine of res judicata avoid multiple suits about the same facts and prevents litigants from harassing adversaries by suing again for events already litigated in a prior action. Under claim preclusion principles most courts would bar the plaintiff from suing a defendant a second time based on the same facts, because the second claim could have been asserted in the first suit. Yet, if the joinder rules did not allow the second claim to be joined to the first, then the plaintiff may sue on the second claim based on the same or previous facts.

Joinder of the parties to the original action Plaintiff choses the parties, but Rule 20(a) places some limits on the plaintiffs choices. Rule 20(a)(1) allows plaintiffs to sue together if they assert claims that arise out of the same transaction, occurrence, or series of transactions or occurrences; and if their claims involve any question of law or fact common to all plaintiffs... Rule 20(a)(2) defendants may be sued together if the same two criteria are met ***Above is the two part test for Joinder*** Other plaintiffs can join in if they want to, they don t have to. But plaintiff(s) can determine who the defendants are. Above rules only authorize joinder of the parties, it is not required, if it were, then would likely be unfair to the plaintiff on personal or federal question jurisdiction grounds. Additionally, a plaintiff can sue alternative defendant under Rule 20(a)(2). i.e. plaintiff assaulted by officers but does not know which one. Usually, under Rule 20(a)(1) plaintiffs sue for different remedies may be able to join. If all of the claims arise from the same source. ***Hohlbein v. Heritage Mutual Insurance Co. (Rule 20(a)(1) case)*** Facts: Four plaintiffs, each with three independent claims, under theories of false or reckless misrepresentation of fact, fraud, breach, of promise. The factual basis common to all is that they were (i) purportedly contacted and interviewed by the defendants representatives in connection with executive employment positions (ii) that the defendant made material misrepresentations of fact and failed to disclose other material information with respect to those executive positions during the course of the respective interviews (iii) plaintiffs were not advised that their employment would be subject to a probationary period. Circumstances of each plaintiff is different. Norbert Hohlbein interview in February of 1982 (VP of Sales). Company made material representations during negotiations. He charges they made representations knowingly or with reckless disregard for the truth. Also not informed about probation. Winston Howell interview in April of 1981 (VP of Sales). Company made material representations upon which he relied on. Then employment terminated because duties and authority was different from what had been represented. James R Beckey Interviews in August and September of 1983 (Regional Claims Manager). Material misrepresentations and not informed of probationary period. Relied upon promised and took employment offer. Edward White Interview in March of 1982 (Training and Education Specialist). Material misrepresentations. Relied upon promises. Issue: Whether the claims satisfied the arising out of the same occurrence or transaction or series occurrences and transactions and involves questions of fact and law common to all plaintiffs requirements under Rule 21(a)(1)? If not, whether a Judge can sever the claims under Rule 21. Rule: Rule 20(a)(1) allows plaintiffs to sue together if they assert claims that arise out of the same transaction, occurrence, or series of transactions or occurrences; and if their claims involve any question of law or fact common to all plaintiffs. Rule 21 a judge may sever claims.

Analysis: The ultimate purpose of this rule is to promote trial convenience and reduce cost. It is also held that Rule 20 should be liberally interpreted. Although the plaintiffs were interview at different times and for different positions (overall dissimilarities), the court found the plaintiffs characterization of the defendant s actions as demonstrative of a continuing pattern or practice with respect to its employment of admittedly unrelated individuals. The particular circumstances of each employee is sufficiently similar to overcome the particular factual dissimilarities that might justify severance. Also, each alleges that the defendant failed to disclose its probationary period. Furthermore, all the plaintiffs claim to have suffered similar damages (i.e. not receiving promised relocation fees). Thus, the court finds that the present complaint does arise out of the same series of transactions or occurrences and implicates questions of law or fact common to each of the named plaintiffs. Moreover, there is caselaw support in King v. Ralston Purina Co., (employees in separate places and divisions of the company can join their claims in a single action against age discrimination). Finally, the court cant determine that at this point there will be jury confusion. And the defendant s burden is far outweighed by the practical benefits. Conclusion: Defendant s motion to sever claims is denied. Counterclaims under the Federal Rules Rule 13(a)(1)(A) counterclaim is compulsory (it must be asserted in the same action) if it arises out of the transaction or occurrence that is the subject matter of the opposing party s claim. But some state rules take a different approach to counterclaims. ***Leiendecker v. Asian Women United of Minnesota - (Rule 13(a)(1) case)*** Facts: Leiendecker (Pl.) filed this present action alleging, defamation, breach of contract, tortious interference with contract, violation of the nonprofit corporations act, and wrongful termination in violation of the Minn. Whistleblower act. The lower court (district) granted AWUM s motion to dismiss. Issues: (i) Were the tort claims alleged in Leiendecker s complaint compulsory counterclaims within the meaning of Minnesota Rule 13.01? (ii) Were the non-tort claims alleged in Leiendecker s complaint barred by rule 13.01 because they were ripe when she answered respondent s third party complaint? I. Rule: Minn R. Civ. Pro 13.01 a pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction that is the subject matter of the opposing party s claim. Analysis: The state rule differs from its federal counterpart in that the word occurrence is omitted from the language. The advisory committee comments to the Minnesota rule deliberately omit the word occurrence to avoid making tort claims compulsory counterclaims House v. Hanson. Thus, Rule 13.01 does not embrace claims in tort. As a result, Leiendecker is not estopped from asserting her tort claim in an independent action. The word transaction, according to the court, does not embrace tort claims. Furthermore, the reason for this rule is that the committee fears that compulsory counterclaims in personal injury and other tort actions may work a hardship in cases where, for instance the defendant s injury is presently unknown or where he is not represented by an attorney who appears primarily for

him and thus counterclaims should be limited to counterclaims arising out of the contract or transaction which is subject to the opposing party s claim. Conclusion: Leiendecker s claims for defamation and tortious interference with contractual relations are tort claims and not subject to the compulsory counterclaim rule, but her other claims are. II. Rule: Counterclaim is compulsory on if the claim is ripe, i.e. if the claim is mature in the sense that a cause of action exists for which a lawsuit may be properly commenced and pursued. One cannot assert a counterclaim about something that may happen in the future. Analysis: a.) Whistleblower Claim Plaintiff contends that this claim did not become ripe until she was terminated as AWUM s director in 2004 and the court agrees. According to Minnesota s whistleblower statute, a prima facie case is established when (i) employee demonstrates statutorily protected conduct (ii) adverse employment action by the employer and (iii) and a causal connection between the two. To satisfy element two, employee must show that the employer s conduct resulted in a material change in the terms or conditions of her employment. Leiendecker did not suffer a decrease in salary, title, or benefits before she was terminated in 2004. Therefore, her claim was not ripe, because her claim for action is based on wrongful termination, and she could not counterclaim wrongful termination if she were not terminated yet. She was later terminated, thus constituting an adverse employment action causing a material change in her unemployment. b.) Breach of K and Minn. Non-profit corp. Act Claims the ripeness of these claims are predicated on the assertion that she was wrongfully terminated. Thus they were not ripe. Though AWUM contends that plaintiff could have claim wrongful termination when they passed the resolution, they in fact did keep her on as executive director, thus the claim was still not ripe when Leiendecker answered the complaint. Conclusion: Because appellant s tort claims were not subject to rule 13.01 and her other claims were not ripe when she answered the respondent s complaint, the court reverses and remands for proceedings consistent with its opinion. Notes Why do we care if a counterclaim is compulsory? Because if you don t join it, you waive it (use it or lose it). Forcing joinder makes litigating claims together more efficient and also avoids the possibility of inconsistent outcomes on common issues. Furthermore, we also care because of 1367 supplemental jurisdiction 1367(a) states that if a federal court has jurisdiction over a case, it may also hear certain other related claims in the action, such as compulsory counterclaim. Permissive counterclaims are not related to the main claims and often must have their own basis for subject matter jurisdiction. Tests for same transaction or occurrence. a.) Are the issues of fact and law raised in the claim an the counterclaim largely the same? b.) Would res judicata bar a subsequent suit on the party s counterclaim, absent the compulsory counterclaim rule? c.) Will substantially the same evidence support or refute the claim as well as the counterclaim? d.) Is there a logical relationship between the claim and the counterclaim? Crossclaims against co-parties 4

Rule 20(a) suit may involve more than one plaintiff and defendant. In this case, Rule 13 (g) allows others to assert claims against co-parties. Rule 13(g) a pleading may state as a crosclaims 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, or if the claim relates to any property that is the subject matter of the original action Test for crossclaims They must arise out of the same transaction or occurrence that is the subject matter of the original action. And crossclaims are not compulsory. Rule 13(h) one may add additional parties to a crossclaim. This new party is not a defendant of the original claim nor is he an opposing party of the plaintiffs. But if one DOES NOT assert a crossclaim, than the additional party (stranger) may not be brought into the suit under 13(h). He would have to bring in the other party by impleading under 14(a)(1). Joinder by defending parties: Impleader under Rule 14 Rule 14 allows a defending party to assert a claim against a stranger to the lawsuit. The standard for doing so is narrower than the transaction or occurrence test used in the other basic joinder rules: A defending party may, as third party plaintiff, serve a summons and complain upon a nonparty who is or may be liable to it for all or part of the claim against it. Rule 14(a)(1) basically claim by a defendant to pass on liability to another party. To implead a third party, the defendant must allege the new party is or may be liable to the defendant for all or part of any judgment the plaintiff recovers from the defendant. ..The party asserting the impleader is known as the third-party plaintiff. ***Erkins v. Case Power and Equipment Rule 14(a) case*** Facts: The plaintiff Erkins, representing the estate of decedent who was riding in the bucket of a backhoe and fell out of the bucket and under the wheels of the machine, brings their products liability action against the defendant Case Power, which manufactured the equipment in question. They seek to hold Case strictly liable for failing to provide adequate warnings regarding the dangers associated with riding in the bucket. The plaintiffs did not name Fitzpatrick or ECRACOM as defendants in this action. Fitzpatrick and ECRACOM were contractors in the construction of the original nursing home and Case seeks contribution from them based on their alleged negligence for failing to conduct safety meetings at the construction site. Because their actions (Fitz and ECRACOM, third party defendants) , Case seeks to implead them in one single action. Issue: Whether, from a substantive standpoint, New Jersey law permits a defendant in a strict liability action to seek contribution from a third-party under a negligence theory. Rule: 14(a) Its primary purpose is to avoid circuity of action and multiplicity of litigation. The court uses the following factors when deciding a motion under rule 14. 1. Timeliness of the motion 2. Potential for complication of issues at trial 3. The probability of trial delay 4. Whether the plaintiff may be prejudiced by the addition of parties A defendant may use rule 14 to implead a third party defendant where the third party defendant is or may be liable to the defendant derivatively or secondarily, and not to join a person who is or may be liable solely to the plaintiff. The basis for third party liability is generally contribution or indemnity. 5

NJSA 2A:53A-3 (New Jersey Tortfeasor Contribution Act) right of contribution arises when the injury or damage is suffered by any person as a result of the wrongful act, neglect or default of joint tortfeasors. In such cases a joint tortfeasor may recover contribution from another tortfeasor for any excess paid in satisfaction of a judgment over his pro rata share. A-1 The statute defines joint tortfeasors to mean two or more persons jointly or severally liable in tort for the same injury to person or property. Analysis: Each party would be liable in tort for plaintiff s injury: Case because of its failure to warn of the dangers of its product and Fitzpatrick and ECRACOM because of their negligence in failing to conduct safety meetings. Tortfeasors do not have to be liable in tort under the same theories of liability. Furthermore, Rule 14 provides the vehicle upon which they may seek contribution in a single proceeding rather than commencing a second action for contribution. After reviewing the equitable principle stated earlier, the court concludes to grant Case, leave to file third-party complaints. 1. The court finds the defendant s motion timely 2. Joinder of the third-parties will facilitate the resolution of liability issues without creating unnecessary complications 3. Though it will delay the trial, it won t be significant. Also, third party claims involve related claims that should be settled in a single lawsuit. No evidence that additional claims will unduly complicate this case. It will promote justice and judicial economy. 4. Finally, joinder of Fitzpatrick and ECRACOM present no prejudice to the plaintiff. Conclusion: Case s motion to file a third-party complaint against Fitzpatrick and ERACOM will be granted. Notes 625-8 Asserting additional claims under Rule 14 Once a party has been impleaded under 14(a), the rule allows other claims to be asserted. A third-party defendant may assert any claims she has against the plaintiff arising from the transaction or occurrence that gave rise to the main claim 14(a)(2)(D). The plaintiff may assert claims against the third-party defendant that meet the transaction-or-occurrence test 14(a)(3). If either of these parties asserts a claim against the other, they become opposing parties, triggering the counterclaim provisions of 13(a) and (b) as well. Then follow the other rules of Rule 13. Know Pennsylvania s broad joinder rules.