September 14, 2012

Rule 18 is the primary rule of federal civil procedure governing the joinder of claims by a litigant.  It is a permissive rule in that it does not require the joinder of any claims with leaves that choice up to the advocate and her client.  From a purely procedural perspective, if your client has a negligence claim against a party, in filing your negligence lawsuit you can also include a battery claim against that party or even a completely unrelated breach of contract claim arising out of a different event than the negligence claim.  The civil procedure rules permit such joinder because of reasons of efficiency and finality–if you are going to war against a particular litigant, you should face no procedural barriers to bringing all potential grievances at your disposal against that opponent and settling all quarrels in one proceeding.   While rule 18 seems broad on its face, there are some procedural checks that you should understand.

The first check on this seemingly broad permission to join unrelated claims against a litigant comes at the jurisdictional level–just because a court may have territorial power (personal jurisdiction) against the party or the jurisdictional power to hear one type of claim (subject matter jurisdiction), this does not necessarily mean that the additional claim can survive either jurisdictional scrutiny. The other check on rule 18’s failure to compel joinder of all related claims is the judge-created doctrine of res judicata or claim preclusion.   The claim preclusion doctrine essentially holds that when a litigant’s claim has been finally adjudicated, that litigant’s other related claims against the same party are considered to have been merged into the original claim and their relitigation is barred. What this means is that when a plaintiff sues a defendant for negligence, once a final judgment has been entered in that suit–whether by motion, trial, or settlement–that same plaintiff may not sue that same defendant for battery if that claim is considered to have arisen out of the same transaction or occurrence as the negligence claim.  This “one bite at the apple” doctrine promotes finality. The practical ramification for a claimant is that, while rule 18 does not require assertion of a battery claim along with the original negligence cause of action, the claim preclusion doctrine says that if you fail to join the two claims, you will be precluded from attempting to take that second bite of the judicial apple in a subsequent lawsuit.

From a strategic perspective, what are the advantages and disadvantages to filing multiple claims instead of just one?  The advantages seem fairly straightforward.  One of these is that if one of the claims fails another might still succeed, so adding as many claims as possible to your lawsuit increases your chances of prevailing on something.  Just because either the law, facts or moral theme surrounding one cause of action do not seem to apply very well does not mean that the defendant’s same conduct must also suffer the same fate under a different legal theory.  The substantive law provides for different causes of action because either judges or legislators believed that certain circumstances justified a recovery.

Another advantage to combining different claims against the same party is to overwhelm the defendant into submission.  It can be daunting to be sued on multiple claims and it can make the effort to extricate oneself from a lawsuit seem more difficult.  If a court is hesitant to dismiss as a matter of law any claim, will not the court be even more reluctant to dismiss many claims?  Perhaps.  Asserting multiple claims increases the litigation expenses for the defendant, all other things being equal, because doing so causes the defense advocate to spend more time engaged in legal research and obtaining discovery to try to defeat those theories.  Finally, because the limits of discovery are tied to the pleadings, the broader the allegations and the greater the claims, the more discovery that becomes available to the plaintiff.  It can also increase the chance that a jury at trial might find some legal theory persuasive in a particular factual context.  In my next blog post we will talk about some of the disadvantages of joinder.