Test for Joinder Is Satisfied When the Facts Giving Rise to the Cause of Action Against Each Defendant Substantially Overlap 11-M100 May 04, 2012 Emsley, Rachel L. Decision Last Month at the Federal Circuit - June 2012Judges: Rader, Dyk (author), Moore [Appealed from: E.D. Tex., Judge Schneider] In In re EMC Corp., No. 11-M100 (Fed. Cir. May 4, 2012), the Federal Circuit granted petitioners’ writ of mandamus, directing the district court to reconsider the defendants’ motions to sever and transfer in light of the correct test under Fed. R. Civ. P. 20(a) to determine whether the claims “aris[e] out of the same transaction, occurrence, or series of transactions or occurrences.” Slip op. at 3 (alteration in original) (quoting Fed. R. Civ. P. 20(a)).

In TecSec, several defendants moved to sever, and Judge Brinkema agreed to a point – she stayed the claims except those against IBM, but she did not reach the severance issue. Fed.R.Civ. P. 20(a)(2) states that defendants may be joined in one action if “(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to the same transaction or occurrence or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.” Since the rule is written in the conjunctive, the plaintiff must satisfy both subsections.

While such swarm joinder cases have significantly increased in popularity nationwide—with some plaintiffs filing against thousands of defendants in a single action on a single filing fee—there is no consensus on their propriety under the Federal Rules. Currently, the D.C. Circuit is the only Court of Appeals to have explicitly ruled on the issue, and in AF Holdings, LLC v. Does 1-1058, 752 F.3d 990, 998 (D.C. Cir. 2014) it concluded that swarm joinder does not satisfy FRCP 20(a)(2). At least twelve District Courts have agreed with the position of the D.C. Circuit, at least five District Courts outside the D.C. Circuit have disagreed (permitting swarm joinder), and eighteen others have taken a “middle ground” in which the District Court may exercise discretion to manage its docket and sever defendants even if swarm joinder might technically be permissible.

com, Civil Action No. 1:11cv309 (JCC/JFA), Coach, Inc., the well-known leather goods company, sought to enjoin 356 alleged cybersquatters – almost all of which registered domain names in Hong Kong or China – from using Coach’s registered trademarks as part of the alleged cybersquatters’ domain names. The problem from Magistrate Judge Anderson’s perspective, however, was that many of these 356 alleged cybersquatters were unrelated to each other, and therefore Coach could not meet the “transaction or occurrence” test for joinder under Fed. R. Civ. P. 20. Thus, when Coach filed a motion for entry of default judgment, Magistrate Judge Anderson issued Report and Recommendation on Nov. 25, 2011, that found joinder improper as to 345 alleged cybersquatters, and recommended severing those defendants from the action. As Magistrate Judge Anderson explained in a detailed, 28 page opinion: Simply put, the evidence presented is insufficient to establish that Coach’s claims against all of the defendant domain names are related, that they arise from the same transaction or occurrence, or that there is any joint action among all the defendant domain names that warrants relief under the ACPA in a single action.Id. at 15.

As for Haixing and Aszune, the Court found that under the Federal Rules of Civil Procedure, email service was appropriate because it was court ordered, was reasonably calculated to notify the defendants and was not prohibited by an international agreement.The Fifth Circuit rejected the defendants’ misjoinder argument, finding that there was no basis for misjoinder under Federal Rules of Civil Procedure 20 and 21. The Court found that the complaint sufficiently alleged that the defendants were all working together and that their conduct arose out of the same transaction, and therefore joinder was appropriate.

d Puerto Rico, distinguished the Supreme Court’s Bristol-Myers decision. It concluded that the Supreme Court’s reasoning in that case was based on the Fourteenth Amendment’s limits on state court’s exercising jurisdiction over state-law claims, not federal law claims. According to the First Circuit, a federal court’s jurisdiction over federal claims is governed by the Fifth Amendment, which “does not bar an out-of-state plaintiff from suing to enforce their rights under a federal statute in federal court,” provided the defendant maintains the “requisite ‘minimum contacts’ with the United States.”The First Circuit also disagreed that Rule 4(k)(1) limited a federal court’s exercise of personal jurisdiction in collective actions. The First Circuit examined the text of the Rule and its history and determined that Rule 4(k)(1) only concerns service of a summons, not limits on a federal court’s jurisdiction after a summons is properly served. As further support, the First Circuit pointed to Rule 20 of the Federal Rules of Civil Procedure, which allows for the joinder of parties whose claims arise from the “same transaction [or] occurrence” and present common “question[s] of law or fact.” The First Circuit also pointed to the FLSA and its legislative history to show that Congress created the collective action mechanism to allow all affected employees to bring a single suit against a single employer.What Should Employers Facing Collective Actions Do?With the recent split among circuit courts, it is expected that the Supreme Court will eventually take up the issue of Bristol-Myers’s applicability to FLSA collective actions. However, SCOTUS is notoriously unpredictable, and there’s no telling when – or if – it will take up this issue to resolve the circuit split. Its docket for the 2021-2022 term is already full, meaning we won’t see any substantial action on this question until Fall 2022 at the earliest.In the meantime, employers faced with FLSA collective actions will want to work with their legal counsel to understand

Importantly, the Court noted that fraudulent misjoinder requires “egregious” misjoinder, rather than “mere misjoinder.” Here, the defendants contended that the non-diverse plaintiffs’ joinder did not comport with the joinder standards of Federal Rule of Civil Procedure 20 because of the factual differences among the plaintiffs.In response, the plaintiffs noted that the Eighth Circuit had not applied fraudulent misjoinder and, even if it did, that in the instant case there was no egregious misjoinder The Court agreed, relying on another Essure device case, in which the joinder of numerous plaintiffs alleging injury from a single medical device was deemed not to be ‘egregious misjoinder.’

The plaintiff’s claims related to the mining and hauling of vermiculite, in which both BNSF and the State had roles. Pursuant to Federal Rule of Civil Procedure 20, “A plaintiff may properly join multiple defendants in a single action if the plaintiff’s claims against them arise from the ‘same transaction, occurrence, or series of transactions or occurrences’ or share a common question of law or fact.” The plaintiff’s choice to combine all defendants in one cause of action streamlined the litigation process.

This sort of polyglot complaint – prohibited in federal court and in almost every other state (we remember the Mississippi Supreme Court doing away with a similar regime) – is allowed under the current construction of Mo. R. Civ. P. 52.05(a), which provides: All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. The first part of this sentence, “the same transaction, occurrence or series of transactions or occurrences,” is simply the standard language of Fed. R. Civ. P. 20, which alone does not support joining unrelated plaintiffs simply because they claim similar product-related injuries. Additional Missouri language, however − beginning with “and” – imposes the requirement that “any question of law or fact common to all of them.”

The defendant moved to sever these claims into separate actions and also moved to transfer the cases to the plaintiffs' home states. Federal Rule of Civil Procedure 20 allows joinder of parties when their claims arise out of the same transaction or occurrence and when there are common questions of fact and law. Rule 21 governs a motion to sever the different plaintiff claims.