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Civil Procedure Fall 2014

State Approaches: Experiments With Compulsory Joinder.

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As we have seen in the FRCP 12(B)(6) context (see, supra, note on state court motions to dismiss), states may—and do—enact procedural rules to govern their courts that differ from the Federal Rules. While the federal government permits parties with shared questions of law or fact to join together in one action, two states experimented with mandatory joinder in such situations. One state (New Jersey) mandated that, where a plaintiff “fails to assert a related claim against a nonparty, that claim later may be precluded,” while the other (Kansas) limited application of its mandatory joinder rule to comparative negligence cases. Howard M. Erichson, Interjurisdictional Preclusion, 96 Mich. L. Rev. 945, 979-82 (1998). However, New Jersey has since repealed its sweeping mandatory joinder rule, deciding that only the plaintiff’s non-joinder of claims, and not non-joinder of claims and parties, could lead to preclusion. See N.J. R. 4:30A (1998) (see, supra for a discussion of New Jersey’s current compulsory joinder rule for related claims). How might conflicting federal and state approaches to party joinder impact forum shopping by plaintiffs? And why do you think New Jersey ultimately decided to repeal its rule?