When Rule 20 Falls Short

When Rule 20 Falls Short

Rule 20(a) admits plaintiffs to one action only if they pass two tests at once. Each plaintiff's right to relief must arise out of “the same transaction, occurrence, or series of transactions or occurrences,”¹ and a question of law or fact common to all plaintiffs must arise in the action.² The tests are cumulative, so a shared question alone never suffices.³ Two patients who independently took the same drug and suffered the same side effect share a question about the drug but not a transaction, so Rule 20 does not join them.

The Federal Rules supply two other devices that ask for less. Permissive intervention under Rule 24(b) lets a nonparty enter a pending case when its claim or defense and the existing action share a question of law or fact.⁴ Consolidation under Rule 42(a) lets a court hear separate actions together when they involve one or more common questions of law or fact.⁵ Neither requires the same transaction or occurrence, which is why each reaches claims that Rule 20 cannot join.⁶

The lower threshold has a price: control passes to the judge. Rule 24(b)'s “may” gives the trial judge discretion to confine joinder to cases in which efficiency, consistency, and manageability favor it,⁷ and Rule 42(a) likewise leaves the decision to broad judicial discretion, with efficient judicial administration as its principal goal.⁸ A plaintiff shut out of Rule 20 may ask for these devices but cannot demand them.

Joinder, intervention, and consolidation share one feature: every player is actually a party and present before the court.⁹ The class action works differently. Named plaintiffs and class counsel adjudicate the claims for absent class members, and if the representatives are adequate and the other certification requirements are met, the absent members are bound by the adjudication of common issues, whether the result favors the class or not.¹⁰ Class actions mark the edge of the devices discussed here.

Intervention Under Rule 24(b)

Permissive intervention lets a nonparty enter a lawsuit that someone else began. The more common ground is a common question: the would-be intervenor's claim or defense and the existing action have a question of law or fact in common.¹¹ A second ground applies when a governmental officer or agency wishes to come into a case involving a statute or regulation.¹² Under either ground, the intervenor need not have a direct personal or pecuniary interest in the subject of the litigation.¹³

That last point separates permissive intervention from an application that rests on a stake in the case. In Jansen v. City of Cincinnati, 904 F.2d 336 (6th Cir. 1990), black applicants and employees of a city fire department sought to intervene in a reverse discrimination suit challenging the department's quota system. They were parties to an earlier consent decree setting goals for minority hiring, and the court found that they had a significantly protectable interest in the affirmative action under challenge.¹⁴ A common question demands no such stake.

Because only the common-question test applies, the intervenor apparently need not be someone who would have been a proper party when the suit began, since intervention borrows only one of the two tests for permissive joinder of parties.¹⁵ Take Weninger, who sues Apex over a side effect from the drug Sindox, and Garriega, who suffered the same side effect; suppose they took the drug independently. Garriega could move to intervene under Rule 24(b)(1)(B), because his claim against Apex shares a common question of fact with hers: did Sindox cause the side effect they both suffered?¹⁶ That showing meets the standard and gives the judge authority to admit a party whose claim resembles the original plaintiff's but does not meet the same-transaction-or-occurrence test.¹⁷

A common question brings the applicant before the judge, who then decides the request in discretion. The Sindox facts show why the judge needs that discretion. If many patients who took the drug sought to intervene, the central issue, whether Sindox causes the condition, would be litigated once instead of many times, a significant benefit to the system. But deciding Weninger's case would be delayed, and she never asked to litigate on behalf of others; she wants her own case decided. Management problems, jurisdictional issues, and other complexities would follow.¹⁸ A judge who finds that the costs outweigh the gains can refuse the applicant and leave the original suit as the plaintiff framed it.

Admission to the case does not settle jurisdiction. Federal jurisdiction is limited by the Constitution and must also be conveyed to the district courts by Congress in a jurisdictional statute.²¹ Assume a suit that rests on diversity alone. Halsey, a New Jersey citizen, sues MacArthur, an Arkansas citizen, for injuries in an accident, and Spruance, an Arkansas citizen, intervenes to assert his own claim against MacArthur for his injuries.²² The claims share a common question, but Spruance and MacArthur are both Arkansas citizens, so the diversity that supports Halsey's suit does not support Spruance's claim, and the supplemental jurisdiction discussed earlier for added plaintiffs does not close the gap. Rule 24(b) solves the joinder problem and leaves the jurisdictional one in place.

Consolidation Under Rule 42(a)

Rule 42(a) lets a judge combine actions already pending. “If actions before the court involve a common question of law or fact,” the court may join for hearing or trial any or all matters at issue in the actions, consolidate the actions, or issue any other orders to avoid unnecessary cost or delay.²⁶ The options run from a joint trial of some matters to full consolidation, which treats the actions together for most purposes.²⁷

The common question is the only condition, and even when it is met the judge acts in discretion, with efficient judicial administration as the principal goal.²⁸ That single condition places consolidation between two other powers. It is narrower than the parties' power to join claims against each other, which can reach claims that are entirely unrelated, and broader than the power to join parties, which requires both a common question and a claim arising out of the same transaction or occurrence.²⁹ A common question alone can therefore consolidate actions but cannot join parties.³⁰

Consolidation matters most where Rule 20 stops. Rule 20(a) does not allow a claim by one plaintiff against one defendant to be joined with a claim by a different plaintiff against a different defendant (P-1 v. D-1; P-2 v. D-2; P-3 v. D-3), even if the transaction is the same and common questions exist.³¹ The rule joins parties, not separate cases. The route for separate cases is to sue separately and then seek consolidation under Rule 42(a), which requires only a common question.³²

The judge's power to consolidate does not wait on the parties' choice of structure. The judge rules on challenges to joinder under Rule 20 but also holds independent power under Rule 42 to consolidate and sever claims.³⁵ Suppose the Mosley plaintiffs from the earlier discussion of joinder had filed ten separate lawsuits and the trial judge had concluded that the suits were closely related. Rule 42(a) would let the judge “join for hearing or trial any or all matters at issue in the actions.”³⁶ The power also cuts the other way: even if the parties are content with the party structure as it stands, a court acting under Rule 42(b) may sever claims.³⁷