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Complex Litigation
University of California, Hastings School of Law
Marcus, Richard L.

joinder of parties

1. Permissive Joinders (FRCP 20)

a. What the Rule governs:
i. Situations in which multiple Ps want to band together and sue one D (or multiple Ds), or
ii. Situations in which one P (or multiple Ps) may sue multiple Ds
b. Criteria Under Rule 20:
i. Ps assert any right to relief jointly, severally or in the alternative
1. this means that if one or more of the Ps have not sued one or some of the Ds, then that P cannot ask the court to join the other Ps who have sued all of the Ps
ii. Same transaction or series of transactions
1. Very flexible approach by courts
a. Logical relationship bwn Ps’ claims, and enough factual concurrences that fair for Ds to defend these cases jointly
i. Sufficient to show same behavior by the same D during the same time-frame
1. Misrepresentations by a particular company about stocks and assets in its public releases during the same timeframe
2. These misreps don’t all have to be the same to every P
ii. not sufficient when Ps complain of different conduct by the same D toward each of the Ps (D sexually harassed one P and racially discriminated against another P—but would have been okay if several Ps complained of sexual harassment by the same D)
1. Note that the Mosley court applied the same transaction case very broadly by holding that a general policy of discrimination would suffice to satisfy the rule but this is not generally followed by other courts
a. Typically, allegations of different specific conduct toward different Ps would be viewed as different transactions
2. Supreme Court’s holding in Falcone is more proper even though in the context of class actions—“across the board” allegations of discrimination or wrongful conduct is not
iii. Also not sufficient to show that D’s product is generally defective when each P could have used the product under different conditions, and in a different manner, at different locations and in different time periods
1. if several Ds and a specific part is malfunctioning that is made the same way by all Ds then could potentially raise a concerted action, enterprise liability type of claim which would satisfy the same transaction test—Hall v. EI Du Pont
2. If can’t ID which D of several Ds caused the harm, but it is clear that at least one of them is responsible, then a substantive link and same transaction test is satisfied under a rule similar to that of Summers v. Tice
a. Burden shifts to each D to prove it didn’t cause the harm alleged
b. Note that this also satifies the common question problem b/c the common Q is which D caused the harm to P (or Ps)
iii. Common question of fact or law
1. A single one would suffice
a. Doesn’t have to be a question that is the actual subject of the dispute ??
2. if evidence to be presented in all of the cases is the same, then there are common questions or at least one common question
3. generally much easier to satisfy than the same transaction or series of transactions test
a. Mosley: found common question by generally defining the Ps’ allegations as a general policy of discrimination even tho

the alleged wrongful conduct

2. Compulsory joinders (FRCP 19)
a. When applicable
i. Generally choice is w/ P to decide who to sue
1. doesn’t matter that P chooses a D that may not be able to satisfy the judgment when another D exists that could meet the judgment
a. this is important when determining whether complete relief could be granted as bwn present parties under the Rule b/c availability of a better D is immaterial in such cases
2. Exception: if the relief sought is of a kind that may impact other individuals’ legally protectable interests as a practical matter, then would want to join those individuals as either plaintiffs or defendants to ensure that the judgment binds all of them
a. Generally done by a party, usually D, but the court may raise the issue sua sponte in order to protect the absent individuals as well as those present from inconsistent judicial determinations or impairment of their interests
b. Most often arises in cases in which P is seeking equitable relief such as injunctions, declaratory judgment, etc.
c. This way won’t have to deal w/ collateral attacks on the first suit by third parties who claim interests later on
Generally such attacks are held to be impermissible UNLESS the parties in the