§20.6 Analysis

• Jurisdiction: Washington

§20.6ANALYSIS

This section analyzes issues involving permissive joinder of parties under CR 20.

(1)Preliminary considerations

In interpreting and applying CR 20, there are a few basic principles to consider.

(a)"Permissive party" versus "necessary party"

Persons who may be permissively joined under CR 20 should be distinguished from "necessary" or "indispensable" parties under CR 19. Necessary parties are those needed for a just adjudication as denned by CR 19(a). See Estate of Bunch v. McGraw Residential Ctr, 174 Wn.2d 425, 431, 275 P.3d 1119 (2012). Indispensable parties are those without whom the action cannot proceed, considering the factors listed in CR 19(b). See Gildon v. Simon Prop. Grp., Inc.,158 Wn.2d 483, 494-95, 145 P.3d 1196 (2006).

(b)Liberal construction of permissive joinder rule

Courts liberally construe CR 20 to fulfill its purposes of trial convenience and avoidance of multiple suits. League to SaveLake Tahoev. TahoeReg'l Planning Agency,558 F.2d 914,917 (9th Cir. 1977); Wells v. Aetna Ins. Co.,60 Wn.2d 880, 882, 376 P.2d 644 (1962).

Caveat: A party seeking joinder should be careful of the potential consequences. See J.R. Simplot Co. v. Vogt,93 Wn.2d 122605 P.2d 1267 (1980) (joinder of additional defendant preserved that defendant's right to file counterclaim despite expiration of statute of limitations during pendency of action). Although the advantages of joining all proper parties usually will outweigh the disadvantages, consider carefully all possible effects of joinder. For example, the possible addition of unrelated claims may unnecessarily complicate an otherwise straightforward case. Further, plaintiffs may decide that their case will be hurt more than helped by joining a defendant who will engender significant jury sympathy and whose role in the matter was extremely limited in comparison to other potential defendants. Given the allocation of fault required by the Tort Reform Act, RCW 4.22.070, a plaintiff should carefully balance the above considerations against the desire for a full recovery, the possibility of comparative fault, "empty chair" defenses whereby a nonparty is alleged to be at fault, etc.

Practice Tip: In deciding whether to join all proper parties, consider the following: the possible savings of time and expense and avoidance of duplicative efforts during discovery and trial; the pooling of resources if additional parties are included on the same side; the possibility thatjoinder will provoke cross claims, counterclaims, or third-party claims; the possible confusion of issues and parties versus the possible benefits of showing the full extent of the alleged wrong; the possible dilution of a claim or defense by the presence of other, weaker parties; and the effect of additional parties on the prospects for a negotiated settlement. Plaintiffs may also consider the value and/or risks of shifting the burden to the defendant to prove that another, unnamed entity bears a higher percentage of fault

Liberal joinder of plaintiffs

As long as the requirements of CR 20 are satisfied, plaintiffs are freely allowed to join in one lawsuit.

Mangham v. Gold Seal Chinchillas, Inc., 69 Wn.2d 37,416 P.2d 680 (1966). Six plaintiffs alleged that the defendants—a corporation and its two controlling shareholders—entered into separate sales contracts with each of them over a period of several years (a "series of transactions" under the joinder rules). The defendants sought to sever the claims into six separate actions. The court found a common question of fact as to whether the defendants had authorized the various salespersons' representations and warranties, as well as a common question of law as to whether the representations and warranties were fraudulent. Therefore, the court allowed the six plaintiffs to pursue multiple claims against multiple defendants in a single action.

Practice Tip: When considering whether to join with other plaintiffs, first try to gain full knowledge of the merits of the other plaintiffs' actions and their abilities to participate in preparation of the case. Also consider the possible advantages of bringing an action using only the "best" plaintiff and then seeking a judgment that will provide other plaintiffs with collateral estoppel benefits. This approach, of course, risks potentially significant delay if the "best" plaintiff fails to obtain a judgment or settles only its interest before a final judgment is reached. It also may present statute of limitations problems.

Although plaintiffs have great freedom in deciding to join defendants and coplaintiffs, defendants have little, if any, right to force plaintiffs to join a permissive party. Jensen v. Arntzen,67 Wn.2d 202, 207, 406 P.2d 954 (1965). A defendant cannot compel a plaintiff to join additional defendants simply because they are proper parties. Brown v. Spokane Cnty. Fire Prot. Dist. No. 1,21 Wn.App. 886, 586 P.2d 1207 (1978) (concurrent tortfeasor who was sued for joint tort could not compel plaintiff to sue other tortfeasors).

Practice Tip: Defendants who desire joinder should carefully consider whether the proposed additional parties are, in fact, necessary or indispensable rather than simply proper parties, in which case defendants may demand that the court compel joinder or dismiss the action. See CR 19. Defendants should also consider the possibility of third-party practice, if appropriate.

Just as defendants cannot force the joinder of other defendants, they cannot compel plaintiffs to join separate actions despite arising from the same transaction or series of transactions. See Trahan v. S. Pac. Co.,209 F. Supp. 334, 337-38 (W.D. La. 1962). Despite this limitation, defendants may still apply for the consolidation of separate suits under CR 42.

Counterclaims, cross claims, and third-party claims

Once a defendant asserts a counterclaim or cross claim, it may use the joinder provisions of CR 20 to the same extent as plaintiffs. Seventh Elect Church in Israel v. First Seattle Dexter HortonNat'l Bank,162 Wash. 437, 444, 299 P. 359 (1931). CR 20 also allows a defendant to join an additional party as a third-party defendant as long as the original defendant has a substantive right to independent relief from the third-party defendant. See Hefley v. Textron, Inc.,713 F.2d 1487, 1498-99 (10th Cir. 1983).

Liberal joinder of defendants

The liberal construction of CR 20 allows joinder of any defendant upon the showing of a common link among the defendants and the claims asserted. One rationale for this type of joinder is that, in situations in which a plaintiff is in doubt as to which of two or more defendants is liable, the plaintiff should submit the entire controversy to one court at the same time to avoid inconsistent or unfair results. See Block Indus, v. DHJ Indus.,495 F.2d 256, 258-59 (8th Cir. 1974); United States v. Carolina Warehouse Co., 4 F.R.D. 291,292-93 (W.D.S.C. 1945). Similarly, where liability is divided among multiple defendants, a single adjudication is more likely to produce the correct result. Of course, in Washington, consideration must be given to the law of joint and several liability and consideration of the allocation of fault to "empty chairs." See RCW 4.22.070. Ordinarily, this law militates for joinder of all defendants who are proper parties under CR 20.

Smith v. Rodene,69 Wn.2d 482, 418 P.2d 741 (1966), amended,423 P.2d 934 (1967). Plaintiff sued for injuries incurred when defendants' vehicle struck plaintiff's vehicle and for injuries incurred when codefendants' truck struck plaintiff's vehicle eight months later. Because there were two separate torts and liability was several and not joint, plaintiff had the burden of proving the amount of damages attributable to each collision. Joinder of both sets of defendants was proper given the need to allocate damages between them.

DeNike v. Mowery, 69 Wn.2d357,418 P.2d 1010, amended, 422 P.2d 328 (1966). Despite lack of joint liability or concurrent wrong, the original tortfeasor and the physician who later negligently treated the injured plaintiff were proper joint defendants so that fact finder could allocate their respective damages. See also Adams v. Allstate Ins. Co.,58 Wn.2d 659, 364 P.2d 804 (1961).

Principals and agents

Cases involving principals and agents are particularly susceptible to permissive joinder issues. In Mullaney v. Anderson,342 U.S. 415, 416-17, 72 S. Ct. 428, 96 L. Ed. 458 (1952), the leading United States Supreme Court case on permissive joinder, the Court ruled that, when an agent has been named as the original defendant, the principal may be joined as an additional defendant later because joinder merely puts the real party in interest in the position of his or her agent. Similarly, joinder of a defendant insurance company's agent has been upheld when there were common factual questions regarding the agent's authority and representations. Desert Empire Bank v. Ins. Co. of N.Am.,623 F.2d 1371 (9th Cir. 1980).

Although the permissive joinder rule allows a plaintiff to name both principal and agent as defendants, it does not require it. For example, when a plaintiff sues an agent, an undisclosed principal is only a permissive party, and the action cannot be dismissed for failure to join the principal. Jensen, 67 Wn.2d at 207. The court need not join the principal in these circumstances because the liability of an agent and the previously undisclosed principal is joint and several. See Crown Controls, Inc. v. Smiley,110 Wn.2d 695, 706, 756 P.2d 717 (1988). "Accordingly, a creditor may recover judgments against both the principal and the agent, may attempt to collect its judgment against either party, and, to the extent that the judgment remains unsatisfied, may subsequently pursue collection from the other party." Id.

Caveat: Ordinarily, both

...