Concept
From Writs to Free Joinder
Joinder of claims
From Writs to Free Joinder
Rule 18(a) lets a party join, as independent or alternative claims, “as many claims as it has against an opposing party,” and its text never asks whether the claims are related.1 That silence breaks with the past. Earlier systems tried to sort claims into those that could share a lawsuit and those that could not, and the sorting passed through four stages: the common-law writ rule, the looser practice in equity, the Field Code’s attempt to merge the two, and the Federal Rules’ abandonment of pleading-stage restrictions. Following those stages explains why Rule 18(a) has no relatedness test and why control over a crowded lawsuit moved from the complaint to the trial judge.
At common law, joinder turned on the writ, not on the facts. A plaintiff could join only claims that used the same writ, but could do so whether or not the claims were factually related.2 Take two plaintiffs. Pat was assaulted and slandered by the same defendant in a single incident. Lee was assaulted by one defendant on one occasion and assaulted again months later. Lee could sue on both assaults in one action, because both used the same writ. Pat could not join assault with slander, even though both arose from one incident, because the two required different writs.3 A slander on one day and an act of negligence months later could likewise share a suit, because both used the same writ.4 The writ rule ignored relatedness in both directions: it separated claims that grew from one incident when their writs differed, and it combined claims that shared nothing but a writ.
Mistakes in joinder were costly. Misjoinder could lead to dismissal or even the upsetting of a verdict, and failing to object early did not waive the defect; courts were still throwing out verdicts for misjoinder in the early twentieth century.5 A misjoinder of claims could be challenged by demurrer, and the suit dismissed until properly pleaded.6
The restriction fit the common law’s larger aim. Many common-law procedural rules were tied to the objective of reducing litigation to the fewest possible issues, a limitation the equity courts did not impose.7 A joinder rule built on the forms of action kept each suit narrow in just that way.8
Equity allowed more. Its courts limited joinder only through a vague doctrine against “multifariousness,” leaving the matter largely to the court’s discretion, although chancellors said that joined claims should arise out of the same transaction or transactions connected with the same subject matter.9 In practice, joinder was generally permitted when claims shared a transactional relationship and raised common issues, though a bill that combined too many claims could be found objectionable for multifariousness.10 The standards were never made completely clear.11
Equity’s freedom stopped at the edge of its own court. Because law and equity were separate systems, neither court could hear a legal claim joined with an equitable one.12 A plaintiff who sued at law for trespass damages, for example, could not obtain an injunction against further trespasses in the same suit and had to go to an equity court for that relief.13 The plaintiff was forced to split the cause of action into two suits, whatever either court’s joinder standard would have allowed.14
The Field Code tried to combine the legal and equitable rules on joinder.15 The attempt failed on both counts: the specified classes of claims were arbitrary and little used, and the “same transaction” clause was so vague that it defied definition.16 A pleader cannot be guided by a standard that defies definition, and the stakes were high, because a misjoinder could still end in dismissal on demurrer.17
The Federal Rules proceed on an entirely different basis, in accord with later developments under more modern codes: they abrogate all restrictions on joinder of claims.18 Pat and Lee now stand alike. Pat may plead assault and slander together, and Lee may plead both assaults, because Rule 18(a) asks neither which writ each claim would once have required nor whether the claims are related.19 Procedural reform and the consolidation of law and equity had already extended the equity joinder procedures, especially those that let complex cases be resolved in a single action.20
Freedom at the pleading stage does not leave the court without control. Rule 18 must be read with Rule 42(b), which lets the court order a separate trial of any claim or issue, so joinder is no longer rigidly restricted at the pleading stage and becomes a matter of the court’s discretion in shaping the trial.21 A severed claim may be as distinct for pretrial and trial purposes as if the plaintiff had brought an entirely separate suit.22 Consolidation works in the other direction, allowing a court to amalgamate actions or issues that share at least one common question of law or fact, for the whole case, for a joint hearing or trial of the common issues, or only for the pretrial phase.23 Its virtue is productivity, because the court resolves issues or entire actions simultaneously.24
The rules of former adjudication developed alongside the joinder rules. Under the common-law system, the scope of former adjudication was correspondingly narrow.25 The trespass plaintiff shows why: forced by the separate court systems to split the cause of action, he was not barred from bringing the second action even though it arose out of the same occurrence as the first.26 Rule 18(a) removes that excuse, because it allows a plaintiff to join virtually all possible theories of recovery in a single action. It is hardly unreasonable, then, to hold that res judicata bars a later suit on any theory omitted from the first, and in that setting the rule’s “may” means “must.”27 The Rules do not compel joinder of all of a litigant’s claims against another, but claim preclusion prevents splitting a single claim and requires all grounds on which it is based to be asserted in one action, on pain of being barred in a later suit.28 An opinion in Ashe v. Swenson draws the same connection: a pervasive purpose of the Federal Rules is to require or encourage the consolidation of related claims in a single lawsuit, and Rule 13 makes compulsory, upon pain of a bar, all counterclaims arising out of the same transaction or occurrence as the plaintiff’s claim.29
A federal problem about joining claims against one opponent therefore calls for none of the old tests. Asking whether an assault claim and an unpaid-loan claim arise from the same transaction, or whether the claims belong to the same category or would once have required the same writ, borrows from the writ system, equity, or the codes, and Rule 18(a) adopts none of them.30 If the real worry is that trying the claims together will burden the case, the answer lies in the judge’s power to order separate trials under Rule 42(b), not in a motion to dismiss for misjoinder of claims.31