Complex Litigation
Lear
Fall 2015
Joinder
A. Permissive Party Joinder—R. 20
· When the P sues multiple ∆s AT THE OUTSET or decides to join w/ other Ps BEFORE FILING
· The purpose of the rule is to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits
· Joinder determination by TCs is subject to abuse of discretion review
· Two requirements for party joinder:
(a)(1)(A)—Assert any right to relief jointly, or arising out of the same T/O, AND [this is same T/O test as R. 13, 15]
(a)(1)(B)—Any question of law OR fact common to all Ps
· Committee note to R. 18(a)—18(a) deals only with pleading, so a claim properly joined as a matter of pleading need not be proceeded w/ together w/ the other claims if fairness or convenience justifies separate treatment
o R. 18 is about claim joinder, and has different elements than R. 20
· Copyright infringement (p. 22, n. 7)
o If a copyright holder sues a number of ∆s, like the distributors and bookstores for selling the same copyrighted book, joinder has typically been rejected when the ∆s are unrelated
· File sharing (p. 22, n. 7)
o Bit Torrent peer-to-peer sharing breaks a large file into pieces while tagging each piece w/ a common identifier (swarm)
o The argument for joining all BT users who downloaded the same file bc they are the same “swarm” is that they all participated in the same series of transactions, and they may be actively sharing the file w/ one another
o LCC v. Does rejected this argument—copyright holder sued 1058 Does who allegedly downloaded the same porn video over a five month period. DC said there was no reason to think the Doe ∆s were participating in the same swarm at the same time
§ Two individuals who downloaded the same file five months apart are truly unlikely to have had any interaction w/ one another—their only relationship is that they used the same protocol to access the same video
§ Used blackjack player analogy—two different people may have sat at the same table, won the same money, and used the same strategy—but they both engaged in separate transactios
§ Simply committing the same type of violation in the same way does not link ∆s for joinder
o But the courts are split on the R. 20 issue in file sharing setting—Patrick Collins v. Doe, E.D.N.Y. 2012, denying joinder; Malibu Cinema v. John Does, S.D.N.Y. 2012, allowing joinder
· IF JOINDER IS IMPROPER: R. 21 severance
· IF JOINDER IS PROPER BUT FOR CONVENIENCE, ETC.: R. 42 separation
· Differences between R. 20 and 42:
o Separate complaints will be filed against both Ds
o Each ∆ files its own pleadings, motions, verdicts, judgments, etc.
o In R. 20, each ∆ has the procedural advantages of a separate trial, including the right to peremptory challenges
· If a P joins under R. 20, that doesn’t prevent the newly-joined P’s claim against ∆ bc ∆ wasn’t himself joined under R. 20
Severance: separate trials and separate judgments
vs.
Separation: separate trials, single judgment
R. 20 Exam Strategy:
· Important: how do we define what the transaction is?
· Format:
(1) Give rule
(2) Tell what language of the rule is interpreted/at issue
(3) Argue
· Will probably be a short-essay question
· Just summarize the arguments of each side and talk about the law that supports them. Don’t need to conclude
Mosley v. GM—8th Cir., 1974, p. 15 [TITLE 7 EMPLOYMENT DISCRIM. CASES, joinder of multiple claims & parties]
Facts—10 Ps sued individually alleging race discrimination. All 10 EEOC complaints asserted same facts. In all 10, the EEOC found ∆s did engage in unlawful employment practices, and notified Ps of their right to file civil suits. 8/10 Ps filed the same complaints against ∆ GM, and the other 2 filed similar ones against ∆ Union.
(a)(1)(A) T/O—R. 13 commentary: “T is a word of flexible meaning; it may be a series of many Os, depending on their logical relationship and not so much upon the immediateness of their connection. So all “logically related” events compromise a T/O.” R. 20 should be interpreted the same way—permits all reasonably related claims for relief by or against diff. parties to be tried in a single proceeding—absolute identicallity of each event is not req. Here, all Ps alleged injury by same general discriminatory policy.
—Company-wide policy purportedly designed to discriminate against blacks arises out of same series of T/O
(a)(1)(B) Common Q—in R. 23 cases, for employment discrimination, the discrimination character of ∆s conduct is “basic to the class” and the fact that there may be different suffered effects is immaterial. Here, the right to relief req. a showing that each of the Ps was wronged by racially discrimination policies by ∆s, which is a common question of law.
NOTES:
Duke v. Uniroyal—4th Cir., 1991, p. 19 n. 2
—TC properly refused to sever two Ps’ cases who claimed age discrimination, bc both employees were fired on the same day as part of the same “reduction in force policy,” which was a uniform policy, and were fired by the same managerà same T/O = single reduction in force, which raised common questions of law/fact
—A variation of the circumstances of the individual of each P’s performance could easily be distinguished by a jury
Puricelli v. CAN Ins. Co.—N.D.N.Y., 1999, p. 20, n. 2
—TC found same T/O in two age discrimination Ps finding a common course of conduct reflecting a “new and aggressive mgmt. style.” It may be relevant that each of the Ps claims and the evidence of discrimination is relevant to every other P’s core allegations of systemic discrimination.
Grayson v. K-Mart—N.D. Ga. 1994, p. 20, n. 3
—Differences in time, location, and persons involved can prevent joinder of discrimination claims.
Facts—different fired managers from around the country sued for age discrimination. Citing Mosley, the court said it was a “somewhat close questions” whether joinder was proper under R. 20, but deciding factor that it wasn’t was that the decisions were made by different managers. Each store had a different manager, and there were 3 regional managers making the decisions.
Randleel v. Pizza Hut—N.D. Ill. 1998, p. 20, n. 3
Facts—black customers were refused service in 2 stores in different states, one for not having a reservation and one arriving when dining room was closed.
—TC denied joinder stating that the claims were “factually discrete and unrelated incidents occurring 2 months apart I different states, involving different management teams and workers.”
Baughman v. Lee County, Mississippi—N.D. Miss. 2008, p. 21, n. 4
Facts—27 Ps alleged § 1986 claim for unlawful strip-search.
Rule—similarity of conduct which Ps are subjected to won’t always insure joinder. “This case involves Ps who assert what are superficially similar claims but will require different fact witnesses and individualized proof re: damages.” The complaint alleged searches between 2005-07, each of which requires individualized proof of the facts of the search. Also, they claimed ED, which requires a showing of “specific discernible injury to his emotional state.”
—“It is not a goal of the federal judiciary to implement justice on the cheap by compromising the basic integrity of the judicial process,” rejecting an argument that it would be costly in time and money to try the suits individually
Tele-Media v. Antidormi—D. Conn. 1998, p. 21, n. 5
—Denied joinder in a single suit against 104 ∆s alleging they all used an altered converter to get free cable. Case failed T/O requirement. The advantages of a single action may still be achieved through consolidation.
PPV Connection v. Nieves-Sosa—D.P.R. 2010, p. 22, n. 5
Fatcs—Ps sued many ∆s under fed. Communications Act for intercepting TV programming in violation of Ps exclusive right to broadcast the programming. Most of the ∆s were bars/restaurants.
Rule—Though the cases concerned the same anti-piracy laws, the same T/O req. isn’t satisfied w/o claim that ∆s acted in concert. Intercepting the same live TV show doesn’t satisfy the sort of connection needed to establish transactional connectedness. Only shared fact was that the TV show at issue was broadcasted at the same time, bc it was a live event. Also, ∆s would likely assert different defenses and evidence.
Barber v. America’s Wholesale Lender—M.D. Fla. 2013, p. 22, n. 6
Facts—18 mortgage borrowers sued 9 lenders claiming they were duped into thinking they were getting traditional borrower/lender relationships when their loans were really sold to third parties in a securitization process.
Ruling—R. 20 not satisfied; Ps claims involved conduct by different ∆s, different loan docs, different dates, and different operative factual scenarios. Also, proof of each claim would require individualized attention.
Dolan v. Safeco Ins.—E.D.N.Y., 2014, p. 23, n. 9
Facts—3 homeowners damaged by Sandy sued Safeco for failing to pay their damages, and the court refused to join.
Ruling—Their policies were virtually identical and the same storm (T/O) caused all the damage. BUT, it was the same storm that led to their “distinct claims under separate policies,” so joinder didn’t stand since “∆ will likely have different justifications for denying/limiting each Ps’c claim.”
In re Stand and Seal Products Liability Litigation—N.D. Ga., 2009
Facts—Ps alleged the users of ∆s product suffered respiratory problems; ∆ recalled the product. 7 Ps bought and used the product in Ga., and sued for strict PL, breach
substance and probably sold to the same buyers
NOTES:
Poster v. Central Gulf Steamship—E.D. Pa., 1960, p. 31, n. 1
Facts—a seaman sued 2 steampships that he worked on for negligent maintenance causing poor sanitary conditions. He got sick on the first, then again on the second. The 2 occurrences were obviously different and there was no relationship b/w the two ships.
Ruling—Court upheld joinder bc the first ship could be liable for the aggravation flowing from the original sickness; so claim arose out of both exposures.
Insolia v. Phillip Morris—E.D. Wis., 1999, p. 32, n. 3
Facts—three Ps sued five tobacco companies and two industry trade associations alleging a conspiracy to suppress adverse health reports and hide the dangers of smoking.
Ruling—the Ps claims didn’t arise from the same T/O—they started smoking at different ages, bought different brands of cigs throughout their years as smokers, they quit for different reasons and under different circumstances.
Rule—R. 20 demands more than the bare allegation that all Ps are victims of a fraudulent scheme perpetrated by one or more ∆. There must be some indication that each P has been induced to act by the same misrepresentation.
P. 33, n. 4 ProblemàBridgeport Music v. 11C Music
(a)(2)(A)—same T/O
P arguments: each song’s download was a series of T/O from the ∆s together; evidence would all be to prove the same issues; cost issues
∆ arguments: each song is separate infringement so separate T/O; same harm to P from each ∆ isn’t enough to create a relationship b/w the otherwise unrelated ∆s; jury confusion as to evidence
(a)(2)(B)—
Common Q of fact to each ∆
P arguments: all the ∆s took the music from Bridgeport
∆ arguments: Didn’t all occur at same time/in same manner
Common Q of law: [easiest argument]
P argument: whether sampling the songs would amount to copyright infringement
(b)—Protective measures
If there are more than one Ps, possibility that one has no claim against any of the ∆s.
Example: Ps 1-3 sue ∆s 1-15 jointly, even though P2 has no real claim against ∆s 6-9
Hall & Chance v. Du Pont—E.D.N.Y., 1972, p. 33
Core allegation: the practice of the explosives industry during the 1950s of not placing any warning on individual blasting caps and failing to take other safety measures created an unreasonable risk of harm resulting in Ps’ injuries.
Chance Case: 13 kids from 10 states sued 6 blasting cap manufactures and the IME for negligence, common law conspiracy, assault, and strict liability. The complaint alleged industry practice of not placing warnings from conscious agreement b/w ∆s.
—∆s argued they couldn’t be held responsible as a group under any theory of liability, but that wasn’t true: concert of action, enterprise liability, alternative liability. ∆s also argued the Q of which state’s law would govern couldn’t be ignored. But, R. 20 requires only a Q of law OR fact.
Common Q of fact: whether ∆s exercised joint control over the labeling of blasting caps and operated as a joint enterprise w/ respect to such labeling.
Ruling: fairness to the parties may be maximized by allowing Ps to litigate the issues of joint activity in one court, then transfer the Qs which turn on the particular facts of each accident to the districts where the accident occurred.
Hall Case: 3 families sued 2 manufactures of blasting caps. 2 families claimed the bad cap in their case was from Hercules, and the other asserted it was from Du Pont, but regardless joined for single suit.
Ruling: the redundant naming of an additional manufacture results from the happenstance of joinder of claims by unrelated Ps. While evidence of joint action or responsibility may be relevant in the claims against each manufacturer, proof of such responsibility will not be necessary for recovery on each Ps’ claim. The claims of the three groups of Ps present sufficient diverse Qs of law and fact, requiring severance.
