Civ Pro 2 Notes 9/10/04


Joinder of parties


Say you’re backing out of a driveway and an Upper Arlington garbage truck hits you.  You call a friend who picks you up and takes you to class, but then you and your friend get hit by an Upper Arlington school bus.  Could you file both claims against the city of Upper Arlington together?  Does this arise out of the same set of facts?  Just because you have a common defendant doesn’t typically mean that you’ll be able to join your claims together.  There are some limits on joinder of claims and parties.  These transactional tests that were in force in the claim rules are more rigid when we look at the party side.  Here, we had two separate accidents.  Unless you’re alleging a city policy that they only hire negligent people, you would have to do two separate suits.


Mosley v. General Motors Corp.


How is the situation above, separate acts of negligence against a common defendant, different from this case?  They’ve joined together and they’re filing Title VII lawsuits against GM and their union.  Should these cases proceed together (the ten plaintiffs against one defendant) or should they be severed into ten separate causes of action?  The district court decides to sever.  Rule 20 is the permissive joinder rule, which tells us that all persons may join as plaintiffs if they assert the right to relief “arising out of the same transaction, occurrence, or series of transactions or occurrences”.  Why do we have rules like this?  It’s a convenience and efficiency rule.  Let’s not have ten separate lawsuits if they’re all really the same thing.  The court in Mosley reminds us of Gibbs: the rules want to bring the largest scope you can into a convenient trial package to maximize both fairness and efficiency. 


Why do the plaintiffs want to sue together? This is all a matter of trial strategy and civil rights litigation.  You want the claims joined so you can see a pattern of bad treatment by a common defendant.  You need multiple defendants to be able to testify!  Here, the plaintiffs ask for interlocutory appeal on the district court judge’s decision to sever the cases.  They don’t want to screw up and then have to try the whole case over again.  This is unusual, though.  The Court of Appeals doesn’t have to accept the interlocutory appeal.  But it did here.


The court in Mosley looks at both “transaction and occurrence” and “common question of law or fact” in looking at Rule 20.  They make an analogy to Rule 13(a).  The language is exactly the same, so we figure it must be able to guide us at least somewhat.  Plant used a bunch of different tests in a wishy-washy way.  The court here is willing to look at that as part of an explanation for why the plaintiffs ought to be able to proceed together. The Court of Appeals argues that the plaintiffs all suffered under the same public policy, and that’s why the plaintiffs are logically related to each other.  With the “common question of law or fact” part of the analysis, the court looks to Rule 23(a), the class action rule.  There’s a provision in that Rule that requires commonality of questions in a class.  This isn’t a class per se, but the court decides that the alleged discriminatory conduct becomes the common factual characteristic.


It’s all kind of complicated.  There are different classes of people with different kinds of claims against different divisions.  Does the umbrella of company-wide discrimination hold true?  Lots of civil rights cases proceed as class actions because the plaintiffs represent not just themselves but also others in the company who suffered the same harms.  But this isn’t a class action!  This isn’t a typical way you’d see courts be willing to treat ten plaintiffs with different types of complaints, each seeking relief only for themselves.  What could GM do if they didn’t like the fact that all the plaintiffs are being brought together?  Is there any way they can remedy having all this tried at one time?  Yes!  Rule 21 can bust up joined stuff…this is misjoinder.  Misjoinder doesn’t lead to the dismissal of the actions, but rather severing them and then letting them proceed separately.  The court can also use Rule 42 to do this: it allows for both consolidation and separate trials.  It’s best considered as an efficiency rule.


In general, Rule 20(a) isn’t that active a rule in federal litigation today.  It’s a very liberal rule that allows you to join people together.  There isn’t a lot of litigation over this rule.  There are a lot of tools to sort through the complexities of this rule without litigation.


Price v. CTB, Inc.


Impleader is not to be confused with interpleader or intervention.  The impleader rule, Rule 14, doesn’t have a lot of controversy either.  This case talks about who the defendant can bring in, and we usually think of this rule as a defendant’s rule.  Price hired Latco to build a chicken house.  Price later sues Latco, saying that the chicken house was defective.  Latco says: “It’s not my fault!  It’s the nail manufacturer’s problem!”  So they want to bring in ITW as a third party.  Latco says that to the extent their coop is bad, that liability should be shouldered by ITW.  Rule 14 allows you to do this!  A defendant, in Rule 14(a) can bring in someone “who is or may be liable to the third-party plaintiff”.  The key is that you can only implead them under Rule 14 if the liability is derivative.  You don’t have to admit that you’re liable, and Latco probably said they weren’t.  But they said that if they are liable, the liability goes to the third party.


This is most often seen in an insurance case.  If you’re responsible for an accident and get sued but you’re insured, you’ll implead the insurer.  This is so common that the insurance company usually comes in directly and controls the litigation because they’re the ones who will ultimately pay.  Can ITW implead into this case?  The court lets them in.  There’s a bunch of stuff about Alabama tort law, but we won’t get into that.


Andy gets assaulted by Blair, and Blair’s defense is that it wasn’t him that did it, but Blaine.  Can Blair implead Blaine under Rule 14?  This is not derivative liability.  This is no liability!  Blair claims a defense, and can put on evidence that the other guy did it, but you can’t implead him.  Blaine should be a co-defendant or alternative defendant.


Consider the original set of facts.  Could ITW implead the steel company that provided the steel for the nails?  Let’s check the Rule: is there any reason why we couldn’t do this?  The Rule is designed to bring in parties to whom you may be liable derivatively.  It’s an efficiently rule.  Is the “nail as to steel manufacturer” lawsuit any different than “chicken coop as to nail”?  No!  You can string these along for as long as you want as long as you have a derivative liability relationship.  But the court can still choose to sever these cases if they think that’s most fair and efficient.  But maybe “bad chicken coop, bad nails, bad steel” is an efficient trial package.


What if we have a counterclaim by Latco that Price never paid for the chicken coop?  Can they bring the counterclaim?  This is like Plant.  Is not paying for the chicken coop related to the cause of action for defective production?  We look at our logical relationship test, whatever that means, and it looks like it’s the same transaction.  The coop isn’t being paid for because it’s defective, so the counterclaim would probably be okay under Rule 13.  It’s debatable, though.  Could the farmer turn around and implead the bank for failing to pay the bills?  Sure, it can be done under Rule 14(b)!  It’s a lot shorter than 14(a), but a plaintiff can bring in a third party when a counterclaim is asserted against the plaintiff.  It’s basically just a reciprocal rule.  That’s a perfectly good example of derivative liability.


Some of these claims will get in under supplemental jurisdiction, but others will fail due to poor drafting, oversight, or both!  These situations are pretty much the same, really.  If we erase the defective coop claim and have Latco sue on the unpaid bill as to the plaintiff, Price is acting the same way in that lawsuit as the defendant as he is here as the plaintiff bringing in a third-party defendant related to the counterclaim.


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