§21.6 Analysis
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§21.6 ANALYSIS
This section discusses the operation of CR 21 and examines the circumstances and consequences of misjoinder and nonjoinder of parties.
(1) Relief available under CR 21
As stated in the rule, CR 21 allows a court to add or drop parties for the purpose of correcting misjoinder or nonjoinder at any stage of an action without the necessity of dismissal. The rule also allows the severance of claims, regardless of any perceived joinder deficiency In most cases, CR 21 does not provide authority for complete dismissal of an action. See Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 522 (5th Cir. 2010); Rinke v. Johns-Manville Corp., 47 Wn.App. 222, 227, 734 P.2d 533, review denied, 108 Wn.2d 1026 (1987).
(a) Adding or dropping parties
CR 21 allows the court to add or drop parties in the interest of justice. Carle v. Earth Stove, Inc., 35 Wn.App. 904,907-08,670 P.2d 1086 (1983); see Cady v. Kerr, 11 Wn.2d 1, 118 P.2d 182 (1941) (construing RPPP 2(3)). The rule is closely related to CR 19, which allows for the joinder of parties who are subject to the court's jurisdiction and who should (or must) be joined as parties. See Shelby v. Keck, 85 Wn.2d 911, 918, 541P.2d365 (1975). When a party has been improperly joined under CR 19, a motion should be brought under CR 21 to drop the improper party or, in the alternative, to sever the claims into two proper actions. See Anrig v.Ringsby United, 603 F.2d 1319,1325-26 (9th Cir. 1978). Similarly, if a party is improperly joined under CR 20, the parties or the court should use CR 21 to remedy the misjoinder. See On The Cheap, LLC v. Does 1-5011, 280 F.R.D. 500, 506 (N.D. Cal. 2011).
Practice Tip: |
Given the interplay between the rules relating to joinder of parties, any motion to add a defendant should state whether the proposed defendant is a "necessary" or an "indispensable" party under CR 19 or a "permissive" party under CR 20. The motion should also state the grounds for asserting jurisdiction over the proposed defendant and for retaining venue in the original court. These considerations are important because the court uses its discretion in deciding whether to permit joinder under CR 20 but has no such discretion with respect to an indispensable party's joinder under CR 19. The court must add the party or dismiss the action. See Mudarri v. State, 147 Wn.App. 590, 196 P.3d 153 (2008), review denied, 166 Wn.2d 1003 (2009). |
The court may drop parties who have no actual or present interest in the controversy. See, e.g., Fetzer v. Cities Serv. Oil Co., 572 F.2d 1250 (8th Cir. 1978).
SHELBY V. KECK, 85 Wn.2d 911, 541 P.2d 365 (1975). The trial court granted a defense motion to drop a joint tortfeasor defendant after the plaintiff made a covenant not to execute against that defendant in exchange for a payment by the defendant's insurer. The Washington Supreme Court affirmed, noting that the only reason plaintiff sought to maintain the dropped defendant as a party was to make use of certain admissions made by the former defendant. The court recognized that, "[b]y utilizing CR 21, the trial court merely sought to avoid a possible misuse of the evidence by the jury." Id. at 918.
CR 21 may not be used by nonparties to join litigation. Nonparties seeking to join the action should move for intervention under CR 24. Spangler v. Pasadena City Bd. of Educ, 552 F.2d 1326, 1328-29 (9th Cir. 1977). CR 24 sets forth certain prerequisites to intervention, as discussed in Chapter 24 (Rule 24. Intervention) of this deskbook.
CR 21 also does not empower the court to order the plaintiff to join parties who are not "necessary" pursuant to CR 19. James S. Black & Co. v.F.W. Woolworth Co., 14 Wn.App. 602,544 P.2d 112 (1975), review denied, 87 Wn.2d 1003 (1976); see Fair Hous. Dev. Fund Corp. v. Burke, 55 F.R.D. 414 (E.D.N.Y. 1972).
The addition of a new party-plaintiff normally will not require service of the summons and amended complaint on the defendants personally as long as the moving party serves defendants' counsel. However, the addition of new party-defendants requires that the plaintiff obtain proper service of process as required by the rules. Blum v. Postal Tel., 60 F. Supp. 237,238 (W.D. Pa. 1945); Bowles v. MarxHide & Tallow Co., 4 F.R.D. 297, 298 (W.D. Ky. 1945); see CR 4.
Caveat: | If, instead of an addition, there has been a substitution of one defendant for another under CR 25, it is not necessary to serve a new summons and complaint on the person to be substituted. The motion to substitute, however, should be served upon the person to be substituted in the same manner as a summons. Mikkelborg, Broz, Wells & Fryer v. Bean, 97 Wn.App. 573, 985 P.2d 950 (1999). |
Once the court joins a party under CR 21, that party has the same rights and responsibilities as the original parties. For example, a new defendant must answer the plaintiff's complaint and may counterclaim, cross claim, join third parties, and take any other steps available to an original defendant.
Practice Tip: | Distinguish CR 21 from CR25, which permits the substitution of parties. CR 25 is available only in certain enumerated circumstances (death of a party, incompetence of a party, or transfer of interest in the subject matter of the litigation). See Chapter 25.(Rule 25 Substitution of Parties) of this deskbook. In circumstances not coveredbyCR25, parties may accomplish de facto "substitution" by the two-step process of dropping an original party and adding a new party under CR 21. |
For a list of factors that courts consider in the decision whether to add or drop parties, see §21.6(4), below.
(b)Severing claims
Under CR 21, the court has the authority to sever "any claim" at any time, whether or not joinder is otherwise proper. See Long v. Dist. of Columbia, 820 F.2d 409 (D.C. Cir. 1987); On The Cheap, LLC, 280 F.R.D. at 506. The court may even sever a compulsory counterclaim, although severance may later be found to be an abuse of discretion. United States v. O'Neil, 709 F.2d 361, 369-70 (5th Cir. 1983).
Several examples illustrate severance under CR 21. The right to a jury trial on some, but not all, of the claims in an action may make severance appropriate. Transmirra Prods. Corp. v. Monsanto Chem. Co., 27 F.R.D. 482 (S.D.N.Y. 1961). Severance is also proper if the court lacks jurisdiction or venue over one or more of the claims. Golden Scorpio Corp. v. Steel Horse Bar & Grill, 596 F.Supp.2d 1282 (D. Ariz. 2009). When multiple plaintiffs sue for damages, a defendant may properly seek severance of the plaintiffs' claims so that the defendant can then join one of the original plaintiffs as a third-party defendant in the other plaintiff's action. Sporia v. Pa. Greyhound Lines, 143 F.2d 105 (3d Cir. 1944); Henz v. Superior Trucking Co., 96 F.R.D. 219 (M.D. Pa. 1982).
Practice Tip: | Proceeding in the manner reflected by the Sporia line of cases,although technically correct, is a cumbersome use of CR 21 to convert a plaintiff or codefendant into a third-party defendant. The more efficient procedure is to assert counterclaims and/ or cross claims against the existing parties without seeking severance. See CR 13. |
When the court severs claims under CR 21, it creates two discrete civil suits from what had previously been a single action. Zamora v. Mobil Corp., 104 Wn.2d 211,221-22, 704 P.2d 591 (1985);see O'Neil, 709 F.2d at 368. The severance provision of CR 21 is different from the relief of "separate trials" provided by CR 42(b). Zamora, 104 Wn.2d at 221-22. Although CR 42(b) separates claims for trial, it does not allow for adding or dropping parties in those separate actions. See Chapter 42 (Rule 42. Consolidation; Separate Trials) of this deskbook. In contrast, CR 21 not only "separates" claims for trial, it also allows a change of parties. With misjoinder, a single adjudication of all claims may remain unfair...
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