Judicial Control After Joinder

Judicial Control After Joinder

Rule 20(a)(1) admits plaintiffs to one lawsuit on two cumulative conditions. Their rights to relief must arise out of the same transaction, occurrence, or series of transactions or occurrences, and a question of law or fact common to all of them must arise in the action.¹ Both conditions must be met.² The provisions for joinder are very broad, so a complaint can satisfy them and still describe a lawsuit that is hard to try. Plaintiffs who share an event and a question may differ in what they lost, in the relief they want, and in the individual proof their claims need. Those differences do not bar joinder. They surface in discovery and trial preparation, after joinder has already been allowed.

The rules answer that problem with a second stage. Entry is broad, but the judge may then order separate trials or make other orders that prevent delay or prejudice.³ The scope of a civil action thus becomes a matter for the judge's discretion, decided on practical considerations in the particular case, rather than a question governed by conceptual tests, as it was under some of the codes and at common law.⁴ Each half of the system needs the other. Narrow entry tests would push plaintiffs with related claims into duplicate trials that repeat the same proof. Broad entry without later control would leave a defendant exposed to jury confusion, added expense, or prejudice from being tried alongside claims that turned out to share little.

Two kinds of judicial response fit within this system, and they answer different questions. When joinder is proper but a joint trial would burden a party, the court uses protective orders and separate trials. When joinder was a mistake, Rule 21 lets the court sever a claim or drop a party, and the case continues in corrected form.⁵ Misjoinder calls for a cure that leaves the rest of the action standing. Keeping the two questions apart avoids a common examination error: treating every trial-management problem as improper joinder, or treating every improper joinder as a reason to dismiss the action.

Protective Orders and Separate Trials

Rule 20(b) protects a party after joinder has been allowed. The court may issue orders, including an order for separate trials, to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party.⁶ A protective order here is any order that shields a party from the burdens of the joint proceeding, and a separate trial is an order that part of the joined case be heard apart from the rest. The rule singles out the party who has no claim by or against the included person, such as a defendant with no dispute with a co-defendant, because that party has the weakest reason to bear the costs of someone else's case. Rule 20(a) admits parties on generous terms, and Rule 20(b) lets the judge repair the unfairness that generous admission sometimes leaves behind.

Rule 20(a) demands so little that a case can satisfy it and still contain pieces that do not belong before one jury at one time. Each harm the rule names has its own mechanism. A party tried beside a co-party whose conduct looks worse risks being judged on evidence unrelated to its own dealings, which is embarrassment and prejudice. A party with a simple claim may wait while others' claims are developed and tried, which is delay. A party must pay its lawyers to sit through proof about claims in which it has no stake, which is expense. A separate trial answers each harm by dividing the proof, so that what the claims share is presented once and what is individual is presented apart. That division is what lets courts read Rule 20(a) broadly, because the judge can protect a party from prejudice through separate trials or other orders without refusing joinder in the first place.⁷

Separate trials rest on the trial judge's discretion, and an appellate court asks whether the judge abused it.⁸ Rule 42(b) is an independent source of the power: a court acting under it may sever claims even when the parties are content with the party structure as it stands.⁹ The limits come from fairness to the jury. A separate trial of an issue cannot be ordered when the issue is so interwoven with the others that it cannot go to the jury independently of them without confusion and uncertainty amounting to a denial of a fair trial, and at least two appellate courts have held that submitting the same issue to two juries violates the Seventh Amendment.¹⁰ Splitting liability from damages in a personal-injury case is proper, even before separate juries, when the two issues are distinct and separate, though whether to do so as a routine matter is a different and highly controversial question.¹¹ Rule 42(a) works in the opposite direction by bringing separate actions together for trial, and a later section takes it up.

The blasting-cap litigation shows a court dividing one case by issue. In the Chance action decided in Hall v. E.I. Du Pont De Nemours & Co., ten plaintiffs injured in separate accidents rested their right to relief, to a significant but not complete extent, on alleged joint activity among the manufacturers, and the defendants sought severance.¹² Trying every accident in one court would strain fairness to the parties, while forcing each plaintiff to prove the alleged joint activity again in a separate action would repeat the same proof. The court maximized fairness by letting the plaintiffs litigate the joint-activity issues in that court and transferring the questions that turn on the particular facts of each accident to the districts where the accidents occurred, relying on Rules 20(b) and 42(a) and (b) and the transfer statute.¹³ It left open whether the procedure would involve full separate trials of different issues, special findings of fact in that court, or other procedures, until it had considered the choice-of-law problem and consulted the parties.¹⁴ The order fits each tool to a different kind of proof. Joint control over the labeling has one answer for every plaintiff and is costly to establish, so one proceeding serves all of them. How a particular accident happened depends on facts found where it happened, so that question goes to the place where the evidence is.

Declining to divide a case can be an equally proper use of the same discretion. In Hohlbein v. Heritage Mutual Insurance Co., four former employees sued one employer, and the employer asked for severance into four lawsuits, arguing that joint prosecution would serve no legitimate interest in judicial economy and that jury confusion was likely.¹⁵ The court denied the motion. It could not conclude, at that stage, that the specter of jury confusion was ominous enough to justify wholesale severance into four discrete lawsuits.¹⁶ It then kept in reserve the kind of order Rule 20(b) contemplates: as the case moved toward trial, the court might enter whatever pretrial orders were needed to present the plaintiffs' claims to the jury clearly and evenhandedly, and it would enlist counsel in identifying the litigable issues and sharpening their presentations.¹⁷

The two outcomes differ because the two cases divided differently. The blasting-cap proof separated cleanly into a shared issue and local issues, so a division by issue removed the unfairness. The Hohlbein plaintiffs' experiences fell within a two-and-a-half-year period and were similar enough that the court saw no need to divide the case at the outset.¹⁸ Each court weighed the risk of prejudice against the benefit of a single proceeding and chose an order proportioned to the risk it saw. A court that keeps a case whole at this stage forfeits nothing, because it may still enter pretrial orders as the case approaches trial if the claims prove harder to present together than the complaint suggested.¹⁹

Step three is where the decided cases do their work, because it asks whether the case has a natural seam. The blasting-cap court found one and divided the case along it. The Hohlbein court found the seam too thin to justify a split at that stage and relied on step five. A separate trial under these rules is a tool for trying a properly joined case fairly, and it presupposes that the joinder was permitted. Rule 21, taken up next, addresses a joinder that should not have been made.

Severance and Misjoinder

The previous section dealt with a joinder that satisfies Rule 20 but may still be hard to try fairly. A joinder that fails Rule 20 poses a different problem, and Rule 21 supplies the remedy. Misjoinder means joining parties whose claims fail one of Rule 20's two requirements, and in federal court both must be met.²⁴ In Hohlbein, the court agreed with the moving employer that Rule 21 prescribes the remedy for improper joinder, and it quoted the rule: "[a]ny claim against a party may be severed and proceeded with separately."²⁵ The rule likewise lets the court drop a party whose joinder is not proper, on motion or on the court's own initiative, at any stage and on just terms. Both tools are corrective: they repair the structure of a lawsuit and leave the claims inside it standing.²⁶

Misjoinder therefore does not end the case. The remedy is corrective action rather than punitive dismissal.²⁷ The defect lies in how the suit was assembled, not in whether any plaintiff holds a valid claim. A plaintiff whose claim does not fit with another plaintiff's still has a good claim, and dismissing it would waste the work done in the case and could expose the claim to timing problems on refiling. Severance gives the claim what it needed from the start, a lawsuit of its own.

Severance and dropping a party leave different things behind. When the court severs a claim, the practical effect is to turn what had been one action into two or more separate actions.²⁸ When the court drops a party, that party leaves the case and the plaintiff's claim against the party must be pursued separately. In a standard illustration, the plaintiff Nimitz joined two defendants, Patton and Bradley, in a way that created a joinder problem. The court may drop either defendant under Rule 21 and so eliminate the problem, and Nimitz will then presumably file a separate suit against the dropped defendant, perhaps in the same court, which will proceed independently of the original case.²⁹ The action against the remaining defendant continues, so the plaintiff gives up a joint trial and keeps both claims.

Three actors shape a joined suit. The plaintiff chooses the parties, within Rule 20(a). A defendant who objects usually moves to sever. The judge need not wait for a motion, because Rule 42(b) independently lets a court sever claims even when the parties are content with the party structure as it stands.³⁰ In Hohlbein, the employer moved to sever four plaintiffs' claims, arguing that joint prosecution would serve no legitimate interest in judicial economy and that jury confusion was likely.³¹ The court denied the motion. All the events fell within a two-and-a-half-year period, and the circumstances in which each plaintiff interviewed for, began, and ended the job were similar enough to overcome the temporal and factual dissimilarities that might otherwise have justified severance.³²

A motion to sever is committed to the trial judge's broad discretion, and the power to sever unrelated claims when doing so would promote the legitimate interests of some of the parties is well established.³³ The discretion is broad because the facts that bear on it sit in the trial court. Only the judge who has read the pleadings and supervised discovery can tell whether the claims will be tried more efficiently apart or together, and the answer can change as the case develops.

The standard is deferential without being toothless, as Mosley v. General Motors Corp. shows. The court of appeals there held that the district court abused its discretion in severing the joined actions, because the difficulties in ultimately adjudicating damages to the various plaintiffs were not so overwhelming as to require severance.³⁴ It added that separate trials could be granted if appropriate, which is the milder tool from the previous section, since it organizes the trial of a joined case without dissolving the joinder.³⁵ Differences in damages go to the extent of relief, not to whether the claims arise from the same transaction or share a common question. Mosley and the Nimitz illustration mark the two poles. In the Nimitz illustration the joinder failed Rule 20, so separating the defendants corrected a real defect. In Mosley the joinder was properly made, so separating the plaintiffs created a defect of its own, the repeated proof that joinder exists to avoid. The first question in any severance dispute is therefore whether the joinder satisfied both conditions of Rule 20(a).³⁶ A case that is merely hard to try is managed with the tools of the previous section.

The most common misjoinder problem in federal court involves a party who is proper under Rule 20 but whose presence destroys diversity. The preferred course is to drop that party and keep the case rather than dismiss the action for lack of subject-matter jurisdiction. Complete diversity is required between all the plaintiffs and all the defendants.³⁷ A single nondiverse party therefore defeats jurisdiction over the action as pleaded. The flaw sits in that party's presence, and removing the party removes the flaw while the claims among the remaining diverse parties stay exactly as they were. In Hall v. E.I. Du Pont De Nemours & Co., I.M.E., an unincorporated New York association, was named as a defendant, and on the plaintiffs' motion it was dropped under Rule 21 to retain diversity jurisdiction.³⁸

The power to drop a party to save diversity has a limit tied to the word dispensable. It applies to a party the court can do without. A person who ought to be joined under Rule 19 stands differently: the remedy for omitting such a person is to join the person, and dismissal comes only if the person cannot be served or the person's presence would destroy diversity.⁴⁰ A person with a looser connection, not so close as to be needed for a just adjudication under Rule 19(a), is a proper party whom the plaintiff has the option to join if Rule 20's tests are met.⁴¹ Had Hale been someone whose absence left the court unable to decide Okafor's claim fairly, dropping Hale would not have been available as a way to save jurisdiction.

Step one does the sorting work, because it separates the joinder that Rule 21 corrects from the joinder that Rule 20(b) and Rule 42(b) only manage. Step four is the one most often forgotten when a question describes a defendant whose citizenship destroys diversity: the drop is available only because the party is dispensable.