Chapter §21.7 Significant Authorities

• Jurisdiction: Washington

§21.7SIGNIFICANT AUTHORITIES

This section identifies Washington and federal authorities addressing misjoinder and nonjoinder issues.

(1) Washington

RPPP 2(3), the predecessor of CR 21, allowed the court to add or drop parties as the ends of justice might require. Cady v. Kerr, 11 Wn.2d 1, 12-13, 118 P.2d 182 (1941); Capital Nat'l Bank of Olympia v. Johns, 170 Wash. 250, 253-54, 16P.2d452 (1932) (purpose of RPPP 2(3) was to bring all parties before the court, to avoid multiplicity of suits, and to determine all issues in one action).

The focus of the modern CR 21 has shifted toward remedying joinder defects and preserving as much of the action as is properly before the court. Carle v. Earth Stove, Inc., 35 Wn.App. 904, 908, 670 P.2d 1086 (1983) (purpose of joinder is to protect the "right to have the entire controversy adjudicated in a single action").

Because the two rules are virtually identical, Washington courts applying CR 21 consider federal cases applying FED. R. CIV P. 21 persuasive. Carle, 35 Wn. App. at 907.

The trial court has broad discretion to apply CR 21. Betchard-Clayton, Inc. v. King, 41 Wn.App. 887, 894-95, 707 P.2d 1361, review denied, 104 Wn.2d 1027 (1985); see Adams v. Allstate Ins. Co., 58 Wn.2d 659, 364P.2d804 (1961); Bruneau v. Grant Cnty., 58 Wn.App. 233, 792P.2d174 (1990).

Absent a manifest abuse of discretion, the trial court's decision on misjoinder and nonjoinder of parties will not be disturbed on appeal. Shelby v. Keck, 85 Wn.2d 911, 918, 541P.2d365 (1975).

Generally, misjoinder or nonjoinder of parties cannot be used to defeat an action. Capital Nat'l Bank v. Johns, 170 Wash. 250, 253-54, 16P.2d452 (1932) (construing RPPP 2(3)); Rinke v. Johns-Manville Corp., 47 Wn.App. 222, 227, 734P.2d533, review denied, 108 Wn.2d 1026 (1987).

CR 21 is closely related to CR 19, which allows for the joinder of potential parties who are subject to the court's jurisdiction and who should (or must) be joined as parties. See Shelby, 85 Wn.2d at 918.

The trial court properly 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." Shelby, 85Wn.2dat918.

The court may not order the plaintiff to join unnecessary parties. James S. Black & Co., Inc. v.F.W. Woolworth Co., 14 Wn.App. 602, 544P.2d112 (1975), review denied, 87 Wn.2d 1003 (1976); Ladd & Tilton Bank v. Rosenstein, 122 Wash. 301, 201 P. 677 (1922).

When the court severs claims under CR 21, it divides a single action into two discrete actions. The severance provision of CR 21 is different from the relief of "separate trials" provided by CR 42(b). Zamora v. Mobil Corp., 104 Wn.2d 211, 221-22, 704 P.2d 591 (1985).

Severance preserves the "identity of an action" while dropping a party terminates the action as to that party. The severed action can be considered a "continuation" of the original action. Mehlenbacher v. DeMont, 103 Wn.App. 240, 245, 11 P.3d 871 (2000).

Plaintiff movedfor voluntary dismissal of defendant county employees to perfect jurisdiction against defendant county. The trial court refused and dismissed the entire action because of the jurisdictional defect. The Court of Appeals reversed, holding that the court should have construed the plaintiff's motion to dismiss as a motion to drop parties under CR21. Dismissal of the entire action was inappropriate. Bruneau, 58 Wn.App. 233.

After trial had begun, defendant moved for dismissal, arguing that plaintiff was not the real party in interest, had no pecuniary interest in the outcome of the case, and was merely an agent of the real party in interest. The trial court denied the dismissal motion and ordered joinder of plaintiff's principal as an additional party-plaintiff. The Washington Supreme Court held that joinder was proper. Wash. Fish & Oyster Co. v. G.P. Halferty & Co., 44 Wn.2d 646, 269P.2d806 (1954).

Although CR 21 expressly states that misjoinder is not a ground for dismissal, failure to join an indispensable party is grounds for dismissal. Mudarri v. State, 147 Wn.App. 590, 196P.3d153 (2008), review denied, 166 Wn.2d 1003 (2009); Matheson v. Gregoire, 139 Wn.App. 624, 161P.3d486 (2007), review denied, 168 Wn.2d 1020, cert, denied, 555 U.S. 881 (2008); see Burt v. State Dep't ofCorr, 168 Wn.2d 828, 231P.3d191 (2010); In re Johns-Manville Corp., 99 Wn.2d 193, 660P.2d271 (1983); Aungst v. Roberts Constr. Co., Inc., 95 Wn.2d 439, 625P.2d167 (1981).

The addition or subtraction of parties or the severance of claims under CR 21 may occur either "on the motion of any party" or by the court "of its own initiative." See Mehlenbacher, 103 Wn.App. at 245; Carle, 35 Wn.App. 904.

CR 21 authorizes the court to add or drop parties at any stage of the action. Adams, 58 Wn.2d 659; Bruneau, 58 Wn.App. 233.

CR 15(c) may be used to stretch the statute of limitations in certain circumstances through relation back. See Watson v. Emard, 165 Wn.App. 691, 267P.3d1048 (2011); Segaline v. Dep't of Labor & Indus., 169 Wn.2d 467, 477, 238P.3d1107 (2010).

An order severing a claim under CR 21 is different than an order dismissing a party, which is equivalent to a dismissal without prejudice. For purposes of the statute of limitations, a severed claim is a continuation of the original action. Therefore, the statute of limitations does not bar a severed claim if it was timely filed as part of the original action. Mehlenbacher, 103 Wn.App. at 245.

The court may drop a party under CR 21 while trial is in progress. Shelby, 85 Wn.2d 911 (dropping defendant on the day of trial); Fisher v. Simmons, 71 Wn.2d 777, 431 P.2d 176 (1967) (court dismissed new defendant at close of plaintiff's case).

During trial, the court dropped a party that lacked authority to bring the lawsuit and required plaintiff's counsel to obtain written authority from the real parties in interest before proceeding. Plaintiff's counsel narrowly avoided defendants' motion to dismiss by obtaining the required authorization after testimony had closed but before the court submitted the case to the jury. James S. Black & Co., 14 Wn.App. 602.

In exceptional circumstances, Washington courts may allow the addition or dropping of parties even if it delays trial. See,...