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Civil Procedure Fall 2014

Introduction to Joinder.


Looking Back: The Development of Permissive and Compulsory Joinder Rules.


In this course, we have already read multiple cases that involve the traditional model of a civil action: one plaintiff bringing one claim against one defendant. But, of course, the real world is not always so simple. For example, after an automobile accident, two passengers might seek to bring identical claims against the driver of the other vehicle. Alternatively, perhaps one company might be suing another company for violating a contract—and at the same time suing that company for stealing its trade secrets. This section will discuss how the Federal Rules of Civil Procedure address these situations, whether by compulsory or permissive joinder.


Historically, the common law model of pleading—which involved writs listing standard causes of action—restricted the issues that could be brought in one claim. As Yale Law School Dean (and later Judge) Charles Clark, author of the Federal Rules of Civil Procedure, explained:


“[V]arious claims falling within the legal limits of a certain form of action might be joined in different counts, even though based on widely separated groups of facts; while claims redressed in different forms of action could not be joined no matter how closely interwoven were the facts upon which they were based. It resulted that a kind of legal similarity of claim, rather than a unity of occurrence of the events relied upon, was achieved.”


Joinder and Splitting of Causes of Action, 25 Mich. L. Rev. 393, 394-95 (1927). By contrast, at that same time, the equity courts took a different approach: “Since in equity the aim was to settle an entire controversy at one time, it was permissible to bring in all closely related matters. The rule was a broad one, resting largely in the discretion of the court.” Id. at 395.


Writing in 1927, Judge Charles Clark believed that the code had begin to reflect “a combination of the common law and equity rules.” Id. As you read the relevant Federal Rules, consider how the merger of law and equity is reflected in the modern approach to joinder.


Packaging Devices: Rule 18’s Relationship With Other Federal Rules.


As you review the Federal Rules governing claim joinder, joinder of counterclaims, permissive party joinder, and compulsory party joinder, consider how these Rules interact to help the federal bench manage its overburdened docket. As many commentators have explained, “The resources devoted to any lawsuit, the efforts of judges, clerks, witnesses, and others, are scarce. Spending them in repeated examination of the issues raised by a single transaction is a waste.” John C. McCoid, A Single Package For Multiparty Disputes, 28 Stan. L. Rev. 707, 707 (1976). Because repetition can beget both the unnecessary expense of time and money and inconsistency among the courts, the Rules established so-called “packaging devices” for plaintiffs to group claims and parties. As Professor McCoid wrote, “[m]odern permissive joinder devices [such as Rule 18 and Rule 20] have allowed substantial packaging of multiparty interests in a single action.” Id.


State Approaches: Compulsory Joinder For All Related Claims?


Under Rule 18, a party asserting a claim may join any other claims it has against the other party. But the Federal Rules do not require the party to do so. By contrast, whether by rule or judicial decision, some states have made the joinder of certain claims compulsory. In New Jersey, a party is required to raise any claims it has against the other party that “arise from related facts or the same transaction or series of transactions.” DiTrolio v. Antiles, 662 A.2d 494, 502 (N.J. 1995). This is known as the Entire Controversy Doctrine. Further, there are consequences for failing to join the related claims: non-joinder results in preclusion of the claims later. N.J. R. 4:30A (1998). The New Jersey Supreme Court has justified the Entire Controversy Doctrine in three ways: “(1) the need for complete and final disposition through the avoidance of piecemeal decisions; (2) fairness to parties to the action and those with a material interest in the action; and (3) efficiency and the avoidance of waste and the reduction of delay.” DiTrolio, 662 A.2d at 502. New Jersey is not alone: Michigan Court Rule 2.203 follows a similar approach. How do these rules compare to the “packaging devices” in the federal system that Professor McCoid describes?