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Civil Procedure 2022

Expanding the Lawsuit: Joinder of Claims and Parties, and Amendments

So far, we have read multiple cases involving the most basic configurations 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, one company might sue another company for violating a contract and simultaneously sue that same company for stealing its trade secrets. This unit focuses on how the Federal Rules of Civil Procedure address these situations. As we will see, some rules are permissive (they give a party the option) in how they structure the lawsuit, while others are compulsory. As I will emphasize in class, even that which seems permissive always has the “boogeyman” of preclusion in the background, sometimes influencing the parties’ decisions (Unit 15 of the course).

It is useful to begin with some terminology. We will use the term “joinder” loosely to refer to everything in this unit. One way of thinking about it is that any time we have a case involving something more than a single plaintiff bringing a single claim against a single defendant, we have a joinder rule that has permitted the parties to litigate the case in that way.

But the rules are more specific than that. They distinguish claim joinder (joining multiple claims) from party joinder (joining multiple parties, for example, co-plaintiffs or co-defendants). It gets even more complicated than that, as we will see, and a big piece of mastering this unit is understanding the “lingo,” i.e., how a counterclaim is different from a cross-claim.

Most of this unit focuses on teaching you the basic joinder rules of the FRCP, often taught through a combination of the relevant FRCP itself and seemingly simple hypotheticals showing you the rule in action. But, as is often the case with Civil Procedure, a trap lurks in the background for the unwary. The joinder rules of the FRCP will tell you whether you may bring an action with such a configuration of claims and parties under the FRCP. It does not, and cannot, alter the requirements for PJ, SMJ, and venue we have already seen. So every time one of these joinder rules is used to expand a lawsuit, you have to ask yourself if it violates the rules for venue, PJ, or SMJ that we have already discussed in this course.

SMJ will be the biggest problem—so much so that when you see a joinder issue, a good strategy is to ask: (1) Can you use the FRCP joinder procedures discussed in this section to add a claim or party? (2) If so, is there original SMJ over that party/claim? (3) If not, can you use supplemental jurisdiction to bring it in? PJ and venue will sometimes also be relevant.

Most of this unit focuses on the joinder rules, but at the very end we will discuss Amendments. The easiest map of how the two relate is to think of this as answering two different questions. First, can I start out with a lawsuit that looks this way? See the joinder materials. Second, after the lawsuit has progressed, can I add or change something? These are Amendments. It is a separate question whether I can amend now, given that I didn’t start this way. But if my Amendment adds parties or claims, I will still face the joinder questions alongside the Amendment questions.

Taking a step back, why do we want to permit litigants to expand a lawsuit by bringing parties and claims together? Because it is often more efficient. Many commentators have explained, “[t]he resources devoted to any lawsuit, the efforts of judges, clerks, witnesses, and others, are scarce. Spending them repeatedly examining 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). We want to try to resolve as much as makes sense to at once; one case burdens the justice system less than multiple cases. Moreover, by resolving as much as possible at one time, we avoid the possibility of inconsistent outcomes between cases. The FRCP system is sometimes referred to as having a “packaging” philosophy. But it doesn’t always make sense to do it in a single action; sometimes parties don’t want to be lumped in with others or have all their claims in the same civil action. The big philosophical tension here is between party autonomy in shaping the lawsuit versus efficiency gains to the system. Since we pay through tax dollars court system costs, you can also think of this as a conflict between the interests of litigants and the interests of society more generally.

The FRCP system, compared with its historical predecessors, is relatively open to joinder. The historical 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, the equity courts took a different approach at the same time: “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 begun to reflect “a combination of the common law and equity rules.” Id.

Now that you have that overview of what this unit seeks to teach you and the underlying philosophical tensions let me offer you a run-down of how we will proceed. Unlike other units of the course, much of this unit will be taught with hypotheticals.


8.2 Claim Joinder will teach you the rule for joining more than one claim together, FRCP 18. Importantly this rule is for joining claims going in the “same direction” between the “same parties;” e.g., if a particular plaintiff is suing a particular defendant for breach of contract and defamation, this is the rule that determines whether both the contract and defamation claim can be brought together in the same case. You will also learn about the rule for misjoinder (FRCP 21) and the flexibility for consolidating separate actions or having separate trials for different parts of the same action (FRCP 42). While FRCP 18 is permissive claim joinder, some states have experimented with compulsory claim joinder as discussed in a reading.


8.3 Permissive Party Joinder focused on FRCP 20, the rule that enables a plaintiff to sue with a co-plaintiff (or co-plaintiffs) or to sue two or more defendants as co-defendants. The federal rule is permissive, but you will also encounter states that experiment with compulsory party joinder. We will also discuss what happens when a plaintiff has an SMJ jurisdictionally sufficient claim against one of the Defendants, but an SMJ jurisdictionally insufficient one against the other; or alternatively when one plaintiff has an SMJ jurisdictionally sufficient claim against a defendant, but her co-plaintiff has an SMJ jurisdictionally insufficient claim against the same Defendant. The intersection between the joinder rules and supplemental jurisdiction will occupy us as we discuss the Supreme Court’s decision in Exxon Mobil Corp. v. Allapattah Services, Inc. Before you tackle this material, you may find it helpful to review Unit 4, especially the parts regarding supplemental jurisdiction.


8.4 Compulsory Party Joinder is entirely OPTIONAL material I do not teach in first-year Civil Procedure on FRCP 19 and compulsory party joinder. It is only there in case you are interested.


8.5 Counterclaims (Compulsory vs Permissive) involve bringing a claim against someone already bringing a claim against you. For example, Plaintiff sues Defendant for breach of contract, and Defendant sues Plaintiff in return for defamation. That latter claim, the defamation one, we call a “counterclaim”—although counterclaims can arise in other configurations as well. We briefly touched on this when we discussed the Answer in Unit 2 of the course since one thing a defendant can do in an Answer is bring her counterclaims. We will learn how the federal system distinguishes permissive and compulsory counterclaims and what happens if one fails to bring a compulsory counterclaim. Through the U.S. v. Heyward-Robinson Co. case we will spend some time on the same transaction or occurrence test (“T&O,” for short) that is relevant for this distinction and will recur for other rules in this unit.


8.6 Cross-Claims are claims bought by a plaintiff against a co-plaintiff or by a defendant against a co-defendant. We will discuss how the underlying rule (FRCP 13(g)) works and some complications related to SMJ.


8.7 Third-Party Practice (aka “Impleader”) occasionally also referred to as the “action over” most commonly occurs when a defendant (the “original defendant”) brings in another party (the “third-party defendant”) and claims that should the original Defendant lose to the plaintiff, the third-party Defendant would owe contribution or indemnification to the original Defendant as to any resulting damages. Other configurations are possible, but this is by far the most typical. We will discuss the requirements of the FRCP 14, as well as some complications related to SMJ.


8.8 Intervention is entirely OPTIONAL material I do not teach in first-year Civil Procedure. It is only there in case you are interested.


8.9 Interpleader is entirely OPTIONAL material I do not teach in first-year Civil Procedure. It is only there in case you are interested.


8.10 Amending the Pleadings and Relation Back introduces you to FRCP 15, the rule that sets out when a party may amend a pleading. We will be mainly focused on its subdivisions concerning Amendments that add a new claim or a new party. We will also spend some time on the following question: if a Complaint was filed before the statute of limitations expired, but at the time of an Amendment, the new claim you are adding would be past the statute of limitations, what happens? There is a doctrine called “relation back of Amendments” we will learn.