Joinder of Parties

Most federal litigators take Rule 20, governing joinder of multiple plaintiffs or defendants in a single complaint, more or less for granted. That’s because in the mill run of cases, the plaintiff or plaintiffs only include parties involved in the events that form the basis of the action. If you, as a lawyer, are crafting a complaint about a breach of contract, for example, you typically include only the parties to the contract or perhaps someone that, as a matter of law, has some rights or responsibilities under the contract. In situations like that, Rule 20’s limitations are not really implicated.

However, recent trends in federal litigation have brought Rule 20 to the forefront of the procedural battlefield. One category of these newly-popular actions is the “Schedule A” cases, so named because the owners of intellectual property rights name tens or hundreds of infringers as defendants in a single action, listing them on a Schedule A to the complaint rather than in the caption. Both the defendants and the courts have begun to question whether joinder of defendants who have allegedly engaged in similar conduct, but without any relationship or coordination among them, is proper.

Requirements of Rule 20

Rule 20 essentially imposes two identical requirements for joinder of multiple plaintiffs (found in Rule 20(a)(1)) or defendants (found in Rule 20(a)(2)). Using the defendants’ version to illustrate, it first requires that any right to relief is asserted against every defendant jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences. The phrase “jointly, severally, or in the alternative” is an all-encompassing phrase, intended to cover every type of liability—the substantive portion of this requirement is the “same transaction, occurrence, or series of transactions or occurrences” requirement.

The phrase “same transaction or occurrence” recurs throughout the joinder rules. It can be found in Rule 13(a) covering compulsory counterclaims, Rule 13(g) covering crossclaims, and Rule 14 covering third-party practice. Rule 20 is the only iteration of that concept that encompasses a “series of transactions or occurrences.” In that sense, it is broader than those other joinder rules.

Although it is a very broad and inclusive phrase, there are limits to the extent parties can extend the concept of a “series of occurrences.” Where claims against the named defendants are very similar, but each rises and falls on separate facts, courts might deem the claims not to be part of a series of occurrences. Independent acts by defendants satisfy the series of transactions or occurrences test of Rule 20 when there is a “logical relationship” between the separate causes of action. The logical relationship test is satisfied if there is substantial evidentiary overlap in the facts giving rise to the cause of action against each defendant. That test was implicated in Tushbaby, Inc. v. Corps., Ltd. Liab. Companies, & Unincorporated Associations Identified on Schedule A, 2024 WL 3741360 (S.D. Fla. 2024), where all nine of the claims involved infringement of the same product but there was no evidence of any coordination among the defendants.

Typically, the “transactionally related” requirement is more difficult to satisfy than the “common question of law or fact” requirement—if a plaintiff has asserted a claim against each defendant arising out of the same transaction, occurrence, or series of transactions or occurrences, there is likely to be a common question of law or fact as well. Indeed, it is not hard to find cases where a court has found common questions of law or fact but deems the claims too unrelated to satisfy Rule 20. Roadget Bus. Pte. Ltd. v. Individuals, Corps., Ltd. Liab. Companies, Partnerships, & Unincorporated Associations Identified on Schedule A Hereto, 2024 WL 3338942 (N.D. Ill. 2024), presents the extremely rare instance where a court has reached the inverse result—finding claims that arise out of a series of occurrences in satisfaction of Rule 20(a)(2)(A) but do not raise a single common issue of fact or law as required by Rule 20(a)(2)(B).

Roadget, then, illustrates the role of the “common question of law or fact” requirement—it serves as a limit on how far a plaintiff may extend the “series of transactions or occurrences” concept. Rule 20(a)(2)(B) prevents a plaintiff from joining multiple defendants based on a series of transactions or occurrences that are so tenuously connected that they don’t implicate a single common question of law or fact.

Rule 20 also includes an element of discretion for the court—even when the two requirements of Rule 20(a) are satisfied, the court may “issue orders—including an order for separate trials—to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party.” When evaluating how to use its discretion, courts typically consider the objectives set forth in Rule 1—the just, speedy, and inexpensive resolution of every dispute. See Third Degree Films v. Does 1-47, 286 F.R.D. 188 (D. Mass. 2012).

Rule 20(b) seems on its face to limit the exercise of its discretion to situations where the plaintiff includes a defendant but asserts no claims against that defendant (and the defendant asserts no counterclaims). However, the courts seem to ignore the last clause in Rule 20(b) and treat the discretion as broadly applying to parties joined under Rule 20.

Additional discretion to sever claims is found in Rule 21, titled “Misjoinder and Nonjoinder of Parties,” which lists the court’s potential remedies for joinder of parties that does not comply with Rule 20.  Rule 21 explicitly provides that dismissal of the action is not a permissible remedy for misjoinder. Rather, severance or dropping the misjoined parties is the normal remedy. In exercising this authority, courts will consider: (1) whether severance will serve judicial economy; (2) whether prejudice to the parties would be caused by severance; and (3) whether the claims involve different witnesses and evidence. See Nolan v. Int’l Bus. Machines Corp., 2025 WL 1078392 (S.D.N.Y. 2025).

Rule 21 on its face would seem only to apply when a party has been joined in violation of Rule 21, and does not appear to provide discretion to sever or drop parties who are properly joined. However, courts have construed Rule 21 to authorize courts to sever or drop parties who were properly joined as well.  See Acevedo-Garcia v. Monroig, 351 F.3d 547, 560 n.5 (1st Cir. 2003) ); Safeco Ins. Co. v. City of White House, 36 F.3d 540, 545–46 (6th Cir.1994). Thus, courts appear to have broad authority to sever or drop parties to advance the “just, speedy, and inexpensive” resolution of the action.

******

Steve is one of the authors of The Federal Litigator, a monthly publication from Thomson Reuters that reports on cases of general interest to those who practice in the federal courts. Each fall, The Federal Litigator reports on amendments to the federal court rules. This article is an excerpt from the April 2025 edition of The Federal Litigator that is reprinted with the publisher’s permission (© 2025 Thomson Reuters). Further reproduction of any kind is strictly prohibited. For further information about this publication, please click here, or call 800.328.9352. Individual case summaries can be accessed through Westlaw. Steve is also one of the authors of the Federal Civil Rules Handbook, an annual publication from Thomson Reuters containing detailed, practical commentary providing a blueprint for the application of the Federal Rules of Civil Procedure and related jurisprudential concepts. To purchase the Handbook, please click here.