6.4 - 6.4 6.4 PERMISSIVE-PARTY JOINDER 337 Permissive-Party...

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§ 6.4 PERMISSIVE-PARTY JOINDER 337 § 6.4 Permissive-Party Joinder The historical legal model is two-party litigation. However, modern transactions frequently embrace more than two individuals and when those transactions go awry or some injury occurs, it becomes necessary to decide what persons properly may be joined in a single lawsuit. Common-law procedure severely limited the permissive joinder of parties by tying it to the substantive rights of the parties to the action. The interests of plaintiffs were classified as either joint or several: if joint, they could sue in the same action; if several, they could not. Indeed, in most cases in which the rights contested were joint, joinder was compelled, so that there really was no permissive joinder of plaintiffs at all. The common-law rules governing joinder of defendants were somewhat more flexible. Under the rules relating to multiparty liability for torts, a plaintiff could join joint tortfeasors or sue them separately. A plaintiff had the same option with regard to defendants whose contractual obligations were both joint and several. If the defendant obligors were jointly liable, however, they had to be sued jointly. 113 The equity courts permitted joinder of parties more readily than did the law courts. Rather than resting their determinations on an abstract joint-several classification, equity resolved joinder questions on the basis of the objectives of rendering complete justice among all those whose interests were involved and avoiding multiplicity of 110 412 U.S. at 678, 93 S.Ct. at 2411. One reaction to the reasoning in the SCRAP case should be noted: “If these be thought gossamer distinctions, we can only rejoin that SCRAP’s ingenious law students have caused us to be translated into ethereal real ms, where we must function as best we are able.” Florida v. Weinberger, 492 F.2d 488, 495 (5th Cir.1974) (per Gee, J.). 111 Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). 112 Justices Brennan, Douglas, Marshall, and White dissented. 422 U.S. at 518, 95 S.Ct. at 2216. 113 See C. Clark, Code Pleading §§ 56, 59 (2d ed.1947). See also B. Shipman, Common Law Pleading §§ 226 28 (3d ed.1923).
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338 JOINDER OF PARTIES AND CLAIMS Ch. 6 actions. Thus, the chancellors permitted all persons having an interest in the subject matter of the action or in the relief sought to join as plaintiffs or defendants in a single action. Moreover, even this liberal formulation was regarded as merely a guide, not an absolute requirement governing party joinder in all cases. 114 Procedural codes imposed new tests for joinder of parties. Under the early codes some courts held that parties were proper and could be joined if their interests in the subject matter and in the relief sought were co-extensive. Thus, two owners of separate but adjacent property could not join to sue a tortfeasor who had injured their respective parcels by a single act because both the owners were uninterested in part of the relief sought.
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  • Spring '08
  • Bracha
  • Common Law, Pleading, Federal Rules of Civil Procedure

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