Joining Defendants

Joining Defendants

Everything that governs the joinder of plaintiffs applies to defendants in mirror image. Rule 20(a)(2) permits persons to be joined in one action as defendants if two conditions are met, and those conditions track the plaintiff-side requirements almost word for word.¹ The first is that any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences.² The second is that any question of law or fact common to all defendants will arise in the action.³ The first ties the defendants to one event or a related series of events. The second requires at least one question that a single trial can answer for all of them. Both must be met.

The one real difference between the two sides is who makes the choice. Plaintiffs who invoke Rule 20 usually have elected to sue together, but defendants generally are placed in that position involuntarily by the plaintiff.⁴ The plaintiff's control runs in both directions. A plaintiff may sue one tortfeasor alone, and the defendant cannot, over the plaintiff's objection, compel the joinder of others who may also be liable.⁵

Modern joinder rules rest on convenience, and they reach a long way. Joinder is permitted when the defendants acted in concert, when they acted independently to cause the same harm, and even when they acted independently to cause different harms, provided the same-transaction and common-question conditions are met.⁶ The familiar examples include a negligent servant sued together with the master under respondeat superior, defendants alleged to be jointly and severally liable for tortious conduct, parties alleged all to have infringed a patent, and parties who share a common interest in the property at issue.⁷ A bus passenger who sues the bus company and the driver of the colliding car, who are jointly and severally liable, may join them, although joinder is not compulsory.⁸ The usual requirements of jurisdiction and venue still apply.⁹

A single event usually supplies both conditions. When two plaintiffs are injured by the same defective pressure valve in one incident, that incident is the same transaction, the shared valve raises common questions, and joinder is warranted on both sides of the case.¹⁰ Rule 20(a) never says in so many words that several plaintiffs may sue several defendants. Rule 20(a)(1) authorizes the first kind of joinder and Rule 20(a)(2) the second, and it is a fair inference that both may be used in the same suit, whether the plaintiffs sue all the potential defendants or only selected ones, so long as both criteria are met.¹¹ A fire shows how little the common question must cover. Suppose two plaintiffs each sue two defendants on their own theories for losses from one fire. Every claim arises out of the fire, which satisfies the same-occurrence test. Each plaintiff must also prove that one person's acts caused the fire in order to recover from the defendants, which supplies a common question. Joinder is proper even though the damages each plaintiff suffered will differ.¹²

Similar conduct alone does not link defendants. Courts have sometimes refused to join defendants alleged to have engaged in similar wrongful conduct, such as similar anticompetitive business practices, when no conspiracy, concerted action, or other theory connects them.¹³ Close cases divide the courts. Federal courts have split over at least one joinder issue under Rule 20(a)(1), some finding the standard met and others not.¹⁴

A defendant need not be involved in every claim. Under Rule 20(a)(3), defendants may be joined even if they are not "interested in . . . defending against all the relief demanded," so a defendant sued on several claims may be joined with another defendant sued on only some of them.¹⁵

Rule 20 joins parties, not cases. It lets several plaintiffs sue one or more defendants against whom they all have claims, and it lets one or more plaintiffs sue several defendants against all of whom they have claims. It does not let one plaintiff's claim against one defendant ride along with a different plaintiff's claim against a different defendant, even when the transaction is the same and common questions exist.¹⁶

A defendant who wants someone else in the case needs a different device. Impleader, or third-party practice, allows but does not compel a defending party to assert a claim against an outsider who is or may contingently be liable to that party for all or part of a claim already made against it, and Rule 14(a) governs it.¹⁸ Rule 20 is a different instrument, because it is how plaintiffs assemble defendants, who generally find themselves joined involuntarily.¹⁹ A hospital sued for the negligence of a physician it employs, and entitled under the governing substantive law to reimbursement from that physician, may therefore bring the physician in by impleader. The hospital cannot instead compel the patient to sue the physician.²⁰