§19.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§19.8STRATEGIC AND PRACTICAL CONSIDERATIONS

Strategic and practical considerations related to CR 19 and Fed. R. Civ. P. 19 are discussed below.

(1)Defense of failure to join a party under CR 19

CR 19 issues are most often raised by motion by a defendant seeking to require the joinder of an absent party or, alternatively, dismissal. The practitioner joining parties only tangentially related to the case faces two competing concerns. First, the Washington Tort Reform Act, which has abolished joint and several liability in cases in which the plaintiff is also negligent, has created the so-called "empty chair" defense, under which parties before the court may argue that other nonparty entities are actually at fault. The existence of this defense provides a substantial incentive for the plaintiff's attorney to join every person or entity that might conceivably have contributed to an accident or event injuring the plaintiff.

The second concern, however, is that CR 11 requires that a lawyer's good faith investigation to determine potential liability before suing be measured on an objective basis. Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992); see also Sanctions: Rule 11 and Other Powers 2 (Gregory Joseph, Paul M. Sandler & Charles M. Shaffer, Jr. eds., 2d ed. 1988); Cabell v. Petty, 810 F.2d 463 (4th Cir. 1987). Plaintiff's attorneys are faced with a number of challenging situations that require careful decision making before joinder of a particular party. For instance, the statute of limitations may be nearing expiration; it may be unclear prior to discovery who is at fault; or the culpable defendants may not be subject to service or jurisdiction. A challenging case might present a combination of these factors. In cases in which these factors are present, the lawyer is subject to intense pressure to file the case, yet risks violation of CR 11 by joining a party whose joinder lacks an objectively reasonable basis. A number of devices are available to avoid harsh results when a meritorious claim is present but difficult to discover. The lawyer should consider the following:

(1)	Serve one of multiple named defendants within 90 days of filing the complaint, which will toll the statute of limitations as to the remaining un served defendants. Sidis v. Brodie IDohrmann Inc., 117 Wn.2d 325, 815P.2d781 (1991).
(2)	Name "John Does" as defendants until facts concerning identity and culpability are known.

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