Applying the Tests

Applying the Tests

Two groups of employees sue the same company. The first group alleges that one company-wide policy of discrimination injured each member. The second group describes denied promotions, each decided by a different supervisor in a different department, and adds only that the denials were discriminatory. A court asked to keep each group in a single action will treat them differently, and the reasons are the subject of this unit.

Rule 20(a)(1) joins its two conditions with the word and: the plaintiffs must assert rights to relief arising out of the same transaction, occurrence, or series of transactions or occurrences, and a question of law or fact common to all of them must arise in the action.¹ The earlier sections taught each condition separately. A real dispute puts both before the court at once, because a defendant who moves to separate the plaintiffs will usually attack the transactional link and the common question together.

The labels plaintiffs attach to their claims carry little weight in that contest. Calling every claim discrimination, products liability, or fraud costs nothing and shows nothing about whether the plaintiffs' stories overlap. What matters is how the claims arise. Either one policy, decision, or course of conduct by the defendant stands behind every claim, or each claim rests on its own event and the plaintiffs share only a defendant and a legal theory. The difference shows up in the proof. If a single showing about the defendant's conduct would establish liability to every plaintiff, one trial saves real effort. If each claim needs its own evidence, a joint trial is separate trials stacked in one courtroom.

Two patterns produce most of the joinder fights, and the subsections below take them in turn. In the first, the plaintiffs say a general policy or practice injured each of them, so the policy supplies both the connecting events and the shared question. In the second, the plaintiffs were hurt in separate incidents and share a defendant and a legal theory, so the transactional condition is the contested point. Each pattern is taught through the decisions that define it, because their facts show where the line falls.

Policy and Pattern Claims

The hardest applications arise when plaintiffs were hurt at different times and in different ways but say that one defendant's policy or practice lay behind every injury. Three decisions show where the line falls. Two allowed joinder, the third refused it, and the facts that separate them are the lesson.

In Mosley v. General Motors Corp., ten employees sued General Motors and a union in a single action, alleging race discrimination.² The district court severed their claims. It reasoned that the joint actions presented a variety of issues having little relationship to one another, that the plaintiffs had only one common problem, the defendant, and that the actions as pleaded were completely unmanageable.³ On the plaintiffs' application, the district court certified the order for interlocutory appeal under 28 U.S.C. §1292(b), and the court of appeals took the case.⁴

The court of appeals reviewed the severance for abuse of discretion and found one.⁵ It began with the transactional condition. Each of the ten plaintiffs alleged injury from the same general policy of discrimination by General Motors and the union. In United States v. Mississippi, a state-wide system designed to enforce the registration laws so as to deprive Black citizens of the vote had been held to arise out of the same series of transactions or occurrences, and the court reasoned that a company-wide policy purportedly designed to discriminate against Black employees likewise arises out of the same series.⁶ The alleged system, not any single act, supplied the connection. The plaintiffs therefore met the first requirement for joinder.⁷

The same allegation answered the common-question condition. The court drew on Title VII class actions, where courts have found that the discriminatory character of a defendant's conduct is basic to the class and that differences in the effects individual members suffered are immaterial to commonality.⁸ The reasoning fits joinder. Each plaintiff's right to relief depended on showing that the alleged discrimination existed and was unlawful, a showing that ten separate suits would repeat ten times and might resolve ten different ways. What varied among the plaintiffs was the harm each suffered, and harm goes to relief rather than to whether the plaintiffs belong in one case.

Because both conditions were met, the court held that severing the joined actions was an abuse of discretion. The difficulty of adjudicating damages to the various plaintiffs was not so overwhelming as to require severance, and separate trials could still be granted if appropriate.⁹ That division of labor is the point to carry forward. Rule 20 decides whether claims may be heard in one action, and presenting different damages to a jury is a later management problem. The district court treated the defendant as the only thing the plaintiffs shared; the court of appeals treated the alleged policy as the thing that tied their claims together.

Hohlbein v. Heritage Mutual Insurance Co. applied the Rule 20(a)(1) standard to four plaintiffs who sued a former employer together.¹⁰ The defendant moved under Rules 20(a) and 21 to sever the action into four lawsuits, one per plaintiff. It argued that no claim arose out of the same transaction, occurrence, or series of transactions or occurrences and that no question of law or fact was common to all four.¹¹

The court conceded real differences. Each plaintiff had worked for the defendant at a different time, and all but two had held different positions in its corporate structure. Each had accepted employment after a separate application and interview process, and each had left, voluntarily or involuntarily, at a different time and apparently for a different reason.¹²

The court called the question a close one and denied the motion.¹³ It found persuasive the plaintiffs' description of the defendant's conduct as a continuing pattern or practice in its employment of admittedly unrelated individuals. Every development in the case fell within two and a half years, from April 1981, when one plaintiff first interviewed for Vice President of Sales, to October 1983, when another accepted what he thought would be the position of Regional Claims Manager. The circumstances under which each plaintiff interviewed for, began, and ended employment were, in the court's view, similar enough to overcome the temporal and factual dissimilarities that might otherwise justify severance.¹⁴

The court then weighed practical burdens. Any burden a consolidated trial placed on the defendant was, it said, far outweighed by the savings in judicial and party resources, and it could not conclude at that stage that the specter of jury confusion justified wholesale severance. As trial approached, pretrial orders could help present the claims to the jury clearly and evenhandedly.¹⁵ The opinion also drew on Mosley and on King v. Ralston Purina Co., which joined three employees from different divisions who alleged a company-wide policy of age discrimination.¹⁶

Hohlbein is the closer case, as the court itself said.¹⁷ The plaintiffs were admittedly unrelated individuals who differed in time, position, and manner of departure, and joinder rested on several smaller overlaps, a short time span and similar circumstances of hiring, work, and departure, that carried the day only in combination.¹⁸ Mosley rested on a single allegation, a company-wide policy, that did most of the work by itself.

A pattern label alone adds nothing, and Smith v. North American Rockwell Corp. shows the result when the facts beneath the label do not connect. The court there found neither Rule 20(a) requirement met. The complaint itself showed that the transactions and occurrences were several, not joint, and diverse, not the same, and even a cursory look at the factual and legal issues revealed no common ground among the plaintiffs.¹⁹ A general notion that promotions had been denied in at least three instances could not support joinder when different supervisors, in different union and work environments, had made the decisions about employees performing different types of work.²⁰

Mosley and Smith both involved employees challenging employment decisions, so subject matter cannot be what separates them. The separating fact is whether the complaint ties the separate decisions to a single source. Mosley alleged a company-wide policy standing behind every claim, so proof of the policy served all ten plaintiffs, while the Smith complaint offered only separate decisions by different decisionmakers.

Step two carries the weight in close cases like Hohlbein, because that is where the time span and the similarity of circumstances either give a pattern content or leave it a label. Steps three and four explain why the Mosley plaintiffs stayed together despite their different jobs and losses, and step five explains why a court that doubts manageability can still decline to sever at the start.

Separate Incidents, Shared Issues

Plaintiffs hurt in separate incidents who share only a defendant and a legal theory test Rule 20(a)(1) at its weakest point. The first condition asks whether their rights to relief arise out of the same transaction, occurrence, or series of transactions or occurrences,²⁴ and the second asks whether a question of law or fact common to all of them will arise in the action.²⁵ Separate accidents involving one product or one defendant often raise some shared question, such as whether the product was defective or the defendant careless, so the second condition seldom decides these disputes. The fight is over the first condition, and it comes down to a comparison: how much of each plaintiff's claim depends on conduct that every plaintiff would have to prove, and how much depends on that plaintiff's own incident. Where the shared conduct dominates, trying it once spares each plaintiff the cost of proving it again. Where the shared conduct is slight, a joint trial saves little and asks one jury to keep several unrelated stories apart.

The blasting-cap litigation supplies the model, because one opinion, Hall v. E.I. Du Pont De Nemours & Co., decided joinder in two related actions and reached different results.²⁶ In the first action, Chance, ten plaintiffs sued the manufacturers over injuries from separate accidents in different federal districts. They alleged joint activity by the defendants, including joint control over the labeling of blasting caps.²⁷ The defendants moved to sever the plaintiffs, arguing that the complaint failed both requirements of Rule 20(a), and asked that the severed claims be dismissed or transferred.²⁸

The court began from the premise that no rigid rule defines the same transaction or occurrence. The inquiry is whether there are enough ultimate factual concurrences that it would be fair to require the defendants to defend the several claims jointly.²⁹ It then described the dilemma candidly. Determining every relevant fact of every accident in one court would be neither fair nor convenient to anyone, yet requiring each plaintiff to prove the alleged joint activity in ten separate and repetitive actions would be unfair and burdensome.³⁰ The court rejected the wholesale severance the defendants sought, because the plaintiffs' rights to relief arose, to a significant though not complete extent, on alleged joint activity that constituted a single transaction or occurrence.³¹ Instead it proposed to let the plaintiffs litigate the issues of joint activity in that court and to transfer the questions that turn on the particular facts of each accident to the federal districts where the accidents occurred.³² It denied the motions for severance and transfer, with leave to renew them after the choice-of-law issues and the appropriate procedures for trying the case were considered.³³

The compromise matches each tool to a different half of the claims. Whether the manufacturers jointly controlled the labeling and operated as a joint enterprise for tort purposes has the same answer for every plaintiff and is costly to prove, so one determination serves all ten.³⁴ How a particular accident happened differs from plaintiff to plaintiff and depends on facts located where it occurred, so those questions go to the district of injury. A court that sees its case in two halves is never forced to choose between trying everything together and cutting the plaintiffs entirely apart.

The defendants also argued about the law that would govern liability. The court postponed choice of law, but it observed that Rule 20(a) requires only any common question of law or fact, so legal questions not shared by every plaintiff do not by themselves defeat joinder. It identified common questions of fact in whether the defendants exercised joint control over labeling and operated as a joint enterprise for tort liability.³⁵ That ruling explains why separate-incident disputes are decided on the transactional condition. One shared question satisfies the second condition, so the open issue is whether anything ties the incidents together.

The companion action, Hall, shows the same industry and the same kind of injury ending differently. The plaintiffs were the children of three families and their parents: the Halls of New York, the Balls of Ohio, and the Brieses of North Dakota. Each child claimed damages from two blasting-cap manufacturers, Du Pont and Hercules, on grounds of negligence, common law conspiracy, assault, and strict liability.³⁶ The court dismissed each plaintiff's claims against the non-producer defendants, because the plaintiffs had selected those defendants arbitrarily and no demonstrable need for joint liability existed in administrative or remedial terms. The claims that remained, against the individual manufacturers, presented questions of law and fact too diverse to support joinder under Rule 20(a). The court therefore severed them, transferred the claims arising in Ohio and North Dakota to their own federal districts, and kept the children's claims arising in its own district.³⁷

The two outcomes differ in one respect: whether alleged joint activity by the defendants remained in the case. In Chance the plaintiffs' rights to relief depended to a significant extent on conduct the manufacturers were said to have carried out together, so a single proof of that conduct served every plaintiff. In Hall the claims against the non-producers fell away, each family's claim then ran against the individual manufacturers, and little remained for the three families to prove in common. A shared legal theory such as negligence or strict liability could not hold the families together, because it joins claims only by legal label and not through any event or conduct they share.

Other decisions mark points along the spectrum between Chance and Hall. At the connected end, a court permitted two defendants to be joined even though the second defendant's activity did not occur until 18 days after the original injury. In a similar case, a passenger whose car was struck in the rear twice in one day, once on the way to work and once on the way home, was permitted to join both other drivers in one action. In both cases the apparent separateness of the torts was outweighed by the fact that, under the applicable substantive law, the initial tortfeasor could be held liable for the total injury.³⁸ Substantive law supplied the link, a point that returns when the unit on joining defendants takes up the same test. At the cautious end, passengers in a series of bus accidents who join in one suit may be seeking an unfair advantage by painting a picture of gross wrongdoing by the defendant, or simply trying to confuse the factfinder. Even so, the tests for such joinder receive flexible, if quite generous, interpretations.³⁹

Consumers of a single drug sit near the Hall end of that spectrum. Suppose two patients, Garriega and Weninger, each took a drug called Sindox, suffered the same side effect, and sued its maker. Their claims share one question, whether Sindox caused the side effect they both suffered, and that question satisfies the second condition.⁴⁰ Whether their separate uses form a single series is the doubtful half, and federal courts have split on whether the Rule 20(a)(1) standard is met on facts like these, with some courts denying joinder on similar facts.⁴¹ A patient in that position can still ask to intervene in the other's suit under Rule 24(b), which looks for a common question and does not require the same transaction or occurrence. A later section takes up that device.⁴²

Step three is where most stems about a defective product turn, because the common question is easy to spot and invites the conclusion that joinder is proper. The same step explains Hall: once the joint-activity theory left the case, the families stood where step three describes, and severance followed. Step four is the move most often overlooked, since it recognizes that a court facing a close case has options between keeping everything together and cutting everything apart.