Claim Preclusion Pressure

Rule 18(a) says that a party asserting a claim “may join, as independent or alternative claims, as many claims as it has against an opposing party.”¹ The word is “may,” and so far as the Rules are concerned, joinder of claims is never compulsory.² The Rules, however, do not tell the whole story. Res judicata does not require a party to join separate claims against an opponent, but its subdoctrine of claim preclusion generally does require the party to put any one asserted claim entirely before the court. The eventual judgment extinguishes the whole claim, including matters within it that were or could have been litigated.³

Claim preclusion could be viewed as a common-law rule of compulsory joinder, but it has not traditionally been described that way. The plaintiff is not seen as holding several grievances that must be joined now; the plaintiff holds one claim that cannot be split without later consequences.⁴ The plaintiff's own interests push in the same direction, since a plaintiff will often want to join all claims, or at least all related claims, against a defendant for efficiency's sake. That preference and the threat of preclusion together give plaintiffs a powerful incentive to join claims even though no Rule requires it.⁵

Two questions decide how much pressure a claimant actually feels. The first is how far one claim reaches, because that fixes which omitted theories the first judgment swallows; the next subsection takes it up. The second is what happens when the claimant could not have asserted the omitted claim in the first action at all, which the subsection after that treats. Throughout, Rule 18(a) stays permissive. The pressure comes from the law of former adjudication, so an omitted-claim problem is solved under preclusion principles, and the joinder rule supplies only the permission.

Transactional Scope of Claims

Once a first suit has ended in a final judgment on the merits, preclusion principles and not Rule 18(a) decide whether a second suit may proceed. When Klipsch argued that Rule 18(a), the rule on permissive joinder of claims, was the proper tool for deciding whether its second action could be brought, the court looked instead to res judicata. It observed that the defense had been asserted after a final judgment on the merits in the prior action, so res judicata principles clearly applied.⁶

Res judicata in turn defines the unit that a judgment extinguishes. The modern approach treats a claim as including all of the plaintiff's rights to remedies against the defendant, on any theory, with respect to the transaction from which the action arose.⁷ Restatement (Second) of Judgments § 24 draws the same line by treating all grounds for relief arising out of a single transaction as one claim.⁸ A legal theory therefore describes a claim; it does not create a new one. The transaction decides how much a judgment covers.

That definition tells you what to ask in an omitted-claim problem. Asking whether Rule 18(a) would have allowed joinder gets nowhere, because the rule lets a claimant join as many claims as it has against the opponent, related or not. The question that decides the problem is whether the omitted claim belongs to the transaction already litigated.

The Roosevelt problems show the contrast. Roosevelt sues Kefauver for negligence and battery arising from an accident, and the suit ends in a judgment. Suppose she then sues Kefauver in a different court on another theory of recovery for the same accident. That suit is barred. Rule 18(a) let her choose, but the omitted theory is part of the single claim the first judgment extinguished, so in practice “may” became “must.” Filing in a different court changes nothing, because full faith and credit principles make the change of forum irrelevant.⁹

Now suppose instead that Roosevelt holds a contract claim against Kefauver that arose out of a separate incident, and she sues on it after the accident judgment. That suit is not barred. The contract claim was joinable in the accident suit, but it does not satisfy the res judicata definition of a single claim, so here the “may” of Rule 18(a) does not mean “must.” The accident judgment bars all later suits against Kefauver based on that accident and leaves suits based on separate events alone.¹⁰ The fact that moved the result is the incident, since joinder was equally available for both omitted claims.

The same reasoning governs a differently named theory built on the same events. Elbers sues for his injuries and leaves out a strict liability claim. He cannot assert it later, because it is simply another theory of recovery for the same injuries already sued upon, and any claim arising from that occurrence that he did not join in the first action is barred.¹¹

The bar is fair because of what the modern joinder rules make possible. Under these liberal rules, plaintiffs have broad power to join all their theories of recovery in the first suit, so they seldom can argue that they should be allowed to start a new action on the same occurrence because they were unable to assert an omitted claim.¹² Joinder and preclusion should track each other. If the rules did not let an accident plaintiff combine counts for property damage and personal injury, a system that barred the second suit would be rigid indeed.¹³ The breadth of modern joinder has a long lineage. Many multiparty-multiclaim devices began in equity, which, unlike the common law, did not aim to reduce litigation to the fewest possible issues, and procedural reform and the merger of law and equity extended those procedures.¹⁴ Claims from separate events stay separate, as Roosevelt's contract claim shows.¹⁵

Claims That Could Not Be Joined

The preclusion pressure rests on a premise: the claimant had a fair opportunity to bring the omitted theory in the first suit. In a sensible system the right to join claims in a first lawsuit and the scope of res judicata in later suits between the same parties should track each other.¹⁷ Despite Rule 18(a), a few situations exist in which initial joinder of a particular claim is unavailable. In those cases res judicata steps aside and lets the plaintiff re-enter the courthouse.¹⁸

Allen sues Moser in state court under a state unfair competition statute and might also recover against Moser for patent infringement, a federal claim over which the federal courts have exclusive jurisdiction. Allen could not have included the patent theory in the state action, so he will usually not be barred from asserting the patent claim in a later suit. See generally Restatement (Second) of Judgments § 26(1)(c).¹⁹ The obstacle was jurisdictional and had nothing to do with Allen's choice, so barring the claim would punish him for failing to do something the state court had no power to let him do.

Compare a claim that was available but joined too late. Smith sues Bryan for breach of contract, claiming Bryan used the wrong grade of cement. Three years into the suit, with discovery complete and trial imminent, Smith moves to add a negligence claim based on pouring the foundation in cold weather. The court denies the motion as untimely, reasoning that the claim could have been asserted earlier and that allowing it would delay trial and prejudice Bryan's defense.²⁰ The court's reason was that the claim was available earlier, which is the opposite of unavailability.

Allen's claim survives and Kessler's does not, even though both cases involve a first state forum, a single defendant, and related events. The difference is whether the first court could hear the omitted claim. The exception is also narrow. Because joinder rules are broad, plaintiffs seldom can say they were unable to assert an omitted claim, so only a few situations qualify.²¹ The usual exam error is to stretch the exception to a claim the claimant merely failed to plead, or to one that looks different in kind from the first. Ask instead whether joinder in the first action was unavailable, as it was for Allen because of exclusive federal jurisdiction over patent claims.