Joinder Is Permissive

Joinder Is Permissive

Rule 18(a) says that a party asserting a claim “may join, as independent or alternative claims, as many claims as it has against an opposing party.”¹ The verb is “may.” It grants permission and imposes no duty, so joinder of claims is never required by Rule 18(a) and is left to the claimant's option.² The standard illustration has P suing D for assault and battery. P may add a claim that D owes P money on a contract entirely unrelated to the tort, and P may equally leave that contract claim out.³

Take Okafor, who holds two unrelated contract claims against Delgado Roofing: it botched a repair for her, and it never paid for a truck she sold it on credit. She may sue on both in one action. She may just as well sue on the repair claim now and save the truck claim for a second action, in whatever order suits her. Rule 18 does not make the first suit defective for omitting the second claim, because it permits joinder and does not compel it.⁴ If she does file twice and the two actions share a common question of law or fact, the court may still consolidate them. It may consolidate the entire actions, or it may combine them only for the pretrial phase or for a joint hearing or trial of the common issues.⁵ Joinder is the claimant's choice, and consolidation is the court's power.

The permissive rule departs from an older and more restrictive tradition. The common law tied many procedural rules to the goal of reducing litigation to the fewest possible issues, a limit that equity courts never imposed. Procedural reform and the merger of law and equity then extended equity's joinder procedures, especially those that let complex cases resolve in a single action.⁶ The statutory classes that tried to list which claims could be joined worked badly. They were arbitrary and little used, and the “same transaction” class was so vague that it defied definition.⁷ Rule 18(a) drops the classes and lets a party join as many claims as it has. The initial pleader, in turn, has the first say in structuring the lawsuit.⁸

Other rules do compel joinder, and the contrast marks the edge of Rule 18. Rule 13(a) generally requires a pleader to put forward any claim it has against an opposing party if the claim “arises out of the transaction or occurrence that is the subject matter of the opposing party's claim.”⁹ A party that omits such a compulsory counterclaim loses it if it does not assert the claim in timely fashion.¹⁰ That forfeiture comes from Rule 13(a) and not from Rule 18. A party served with a claim has no choice about a same-transaction counterclaim, while a claimant under Rule 18(a) chooses freely which further claims to add. Forcing an additional claim between parties already before the court also raises fewer problems than forcing in a new party, and supplemental jurisdiction ordinarily covers a compulsory counterclaim.¹¹ Absent persons are protected differently: if a person is left out in violation of the compulsory joinder rules, a defense is available under Rule 12(b)(7) and (h)(2), or the court may raise the nonjoinder itself.¹²

Together, the compulsory and permissive rules set inner and outer limits on a pleader's autonomy, and between those limits the pleader decides what to assert.¹³ The outer limits include jurisdiction. Supplemental jurisdiction probably does not reach a claim joined under Rule 18(a), so the joined claim must satisfy subject-matter jurisdiction on its own. The problem seldom arises, because joinder does not disturb diversity and the claimant may add all of its claims together to reach the $75,000 amount in controversy.¹⁴ The inner limit for claims between the same parties is thin. Commentators have urged compulsory joinder of all claims one litigant has against another, but the rules do not go that far.¹⁵ A rule that writes a compulsory provision into its own text warns claimants of the hazard and simplifies the second court's inquiry into whether a later action should be barred.¹⁶ Rule 18 contains no such provision. The check comes instead from the defending party, who may raise a defense in the nature of res judicata when a claim that should have been asserted earlier surfaces in a later action.¹⁷

Permission to leave claims out does not make leaving them out safe. The rules on former adjudication, especially the rule against splitting a cause of action, may cost a claimant the ability to bring an unasserted claim in a later suit.¹⁸ Claim preclusion treats all of a plaintiff's rights to remedies against the defendant, on any theory, with respect to the transaction from which the action arose as a single claim.¹⁹ Okafor's repair and truck claims arise from separate dealings, so she may take them in either order. A plaintiff who sues for negligence over a collision and later sues the same defendant on another theory arising from that collision risks a bar, because the second suit tries to split one claim. The usual exam error is to read “may” in Rule 18(a) as a guarantee that any omitted claim can be brought later. The next section takes up that pressure.