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Sculpting the Lawsuit

Figure 13-1. Volt joins Wright and Ellsworth as defendants under Rule 20(a)(2); Wright crossclaims against Ellsworth under Rule 13(g).

The various joinder rules may also work in tandem. For example, the counterclaim rules, Rules 13(a)(1) and (b), both authorize “a pleading” to assert a claim against an “opposing party.” Once again the rulemakers have chosen the language of the rule with care. This language authorizes any defending party—not just an original defendant—to assert counterclaims against a party who has claimed against him. In the last diagram, once Wright crossclaims against Ellsworth, she becomes an “opposing party” on Wright’s crossclaim. Rule 13 applies to any claim she may have against Wright. If she has a claim against Wright for her injuries in the collision, she must assert it as a compulsory counterclaim once Wright has asserted a claim against her. Fed. R. Civ. P. 13(a)(1). If she has any unrelated claims against Wright, she may assert them, but is not required to, under Rule 13(b).


Rule 18(a) is the broadest of the basic joinder rules. Unequivocally, it provides that a party seeking relief from an opposing party may join with his original claim any additional claims he has against that opposing party. Suppose, for example, that Volt exchanges words with Wright after the accident and a fight ensues. Rule 18(a) allows Volt to assert his claim for assault in the same action with the negligence claim. It would also allow Volt to add a completely unrelated claim against Wright for libel, trespass, or anything else. Unlike Rule 20(a), there is no common transaction or occurrence requirement in Rule 18(a).

Rule 18(a), like Rule 13, authorizes “a pleader” to assert as many claims as he has against an opponent. This applies not only to the original plaintiff, but also to any party seeking relief against another party, whether on a counterclaim, a crossclaim, or a third-party claim. Suppose, for example, that Volt sues Ellsworth and Wright for negligence, based on the collision at the construction site, and Ellsworth crossclaims against Wright for her damages arising out of the accident. Rule 18(a) authorizes Ellsworth, as a party seeking relief, to add on any claim, related or unrelated, that she may have against Wright:

Note that Ellsworth could not have asserted this unrelated contract claim as a crossclaim if it were the only claim she had against Wright: Rule 13(g) only allows crossclaims that arise out of the same transaction or occurrence as the main claim. However, once Ellsworth asserts a proper crossclaim against Wright, Rule 18(a) kicks in, allowing her to add on totally unrelated claims as well.

A cautionary note is in order here, however. The fact that the Rules authorize joinder of multiple claims, or claims against multiple parties, does not confer subject matter jurisdiction on the court to hear those claims. For every claim, subject matter jurisdiction must be analyzed separately; at times, the joinder rules will authorize the joinder of a claim, but the court will not have jurisdiction to hear it. These two requirements are compared and distinguished in Chapter 17, entitled “Joinder vs. Jurisdiction: The Difference between Power and Permission.”

In puzzling out the following examples, start by identifying the party asserting the claim as a plaintiff or defendant and then consider, given the particular posture of the claim, which of the rules applies. Assume that all suits are brought in federal court.

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