In re the Mississippi Rules of Civil Procedure, No. 89-R-99001-SCT (Miss. 2/20/2004)

• Decision Date: 20 February 2004
• Docket Number: No. 89-R-99001-SCT.,89-R-99001-SCT.
• Citation: In re the Mississippi Rules of Civil Procedure, No. 89-R-99001-SCT (Miss. 2/20/2004) (Miss. 2004)
• Parties: IN RE: THE MISSISSIPPI RULES OF CIVIL PROCEDURE
• Court: Mississippi Supreme Court

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IN RE: THE MISSISSIPPI RULES OF CIVIL PROCEDURE

No. 89-R-99001-SCT.

Supreme Court of Mississippi.

February 20, 2004.

ORDER

EDWIN LLOYD PITTMAN, CHIEF JUSTICE, FOR THE COURT

This matter has come before the Court en banc on its own motion for consideration of amendments to Rules 20, 42 and 82 of the Mississippi Rules of Civil Procedure and the Comments thereto. Having considered the matter, the Court finds that the fair and efficient administration of justice in this state will be promoted by the amendments as set forth in Exhibits "A", "B", and "C" hereto.

IT IS THEREFORE ORDERED that Rules 20, 42 and 82 of the Mississippi Rules of Civil Procedure and the Comments thereto be and are hereby amended as set forth in Exhibits "A", "B", and "C" hereto.

IT IS FURTHER ORDERED that the Clerk of this Court shall spread this order upon the minutes of the Court and shall forthwith forward a true certified copy hereof to West Publishing Company for publication as soon as practical in the advance sheets of Southern

Reporter, Second Series (Mississippi Edition) and in the next edition of Mississippi Rules of Court.

SO ORDERED, this the 20th day of February, 2004.

EASLEY, J. OPPOSES ALL AMENDMENTS.

GRAVES, J. OPPOSES AMENDMENTS TO RULES 20 AND 82 AND THEIR COMMENTS.

DIAZ, J., NOT PARTICIPATING.

EXHIBIT "A" TO ORDER

MISSISSIPPI RULES OF CIVIL PROCEDURE

RULE 20. PERMISSIVE JOINDER OF PARTIES

(a) Permissive Joinder. 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 these persons will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief 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 defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.

(b) Separate Trials. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party he asserts no claim and who asserts no claim against the party him, and may order separate trials or make other orders to prevent delay or prejudice.

[Amended February 20, 2004 to make rule gender neutral.]

Comment

The purpose of Rule 20 is to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple law suits. The rule is permissive in character; joinder in situations falling within the rule's standard is not required unless it is within the scope of compulsory joinder prescribed by Rule 19.

Rule 20(a) permits joinder in a single action of all persons asserting or defending against a joint, several, or alternative right to relief that arises out of the same transaction or occurrence or series of transactions or occurrences and presents a common question of law or fact. The phrase " transaction or occurrence" requires that there be a distinct litigable event linking the parties. Rule 20(a) simply establishes a procedure under which several parties' demands arising out of the same litigable event may be tried together, thereby avoiding the unnecessary loss of time and money to the court and the parties that the duplicate presentation of the evidence relating to facts common to more than one demand for relief would entail.

Joinder of parties under Rule 20(a) is not unlimited as is joinder of claims under Rule 18(a). Rule 20(a) imposes two specific requisites to the joinder of parties: (1) a right to relief must be asserted by or against each plaintiff or defendant relating to or arising out of the same transaction, or occurrence, or the same series of transactions or occurrences; and, (2) some question of law or fact common to all the parties will arise in the action. Both of these requirements must be satisfied in order to sustain party joinder under Rule 20(a). See American Bankers Inc. of Florida v. Alexander, 818 So. 2d 1073, 1078 Comstock v. Rayford, 9 Miss. 423, 438-39 (1843) (unconnected parties having a common interest in the point at issue may unite in the same bill); accord, Richardson v. Brooks, 52 Miss. 118 (1876). However, even if the transaction requirement cannot be satisfied, there always is a possibility that, under the proper circumstances, separate actions can be instituted and then consolidated for trial under Rule 42(a) if there is a question of law or fact common to all the parties. See Fielder v. Magnolia Beverage Co. 757 So. 2d 925 (Miss. 1999) citing Stoner v. Colvin, 236 Miss. 736, 748, 110 So.2d 920, 924 (1959) (courts of general jurisdiction have inherent power to consolidate action when called for by the circumstances). See also Miss. Code Ann. §§ 11-7-21 and -23 (misjoinder and nonjoinder of parties) and 11-7-177 and -179 (1972) (judgments according to rights of parties). If the criteria of Rule 20 are otherwise met, the court should consider whether different injuries, different damages, different defensive postures and other individualized factors will be so dissimilar as to make management of cases consolidated under Rule 20 impractical. See Demboski v. CSX Transp., Inc. 157 F.R.D. 28 (S.D. Miss 1994.) cited with approval in Illinois Cen. R.R. Coj. v. Travis, 808 So. 2d 928, 934 (Miss. 2002).

The general philosophy of the joinder provisions of these rules is to allow virtually unlimited joinder at the pleading stage but to give the court discretion to shape the trial to the necessities of the particular case. Rule 20(b) gives furthers this policy by giving the court authority to order separate trials or make any other order to prevent another a party from being embarrassed, delayed, prejudiced, or put to unnecessary expense by the joinder of a party against whom the party he asserts no claim and who asserts no claim against the party him. Aside from emphasizing the availability of separate trials, Rule 20(b) has little significance inasmuch as the power granted the court therein also is provided by the much broader grant of discretion set forth in Rule 42(b). See 3A Moore's Federal Practice ¶¶ 20.01-.08 (1968); 7 Wright & Miller, Federal Practice and Procedure, Civil §§1651-1660 (1972).

In order to allow the court to make a prompt determination of whether joinder is proper, the factual basis for joinder should be fully disclosed as early as practicable, and motions questioning joinder should be filed, where possible, sufficiently early to avoid delays in the proceedings.

[Comment amended February 20, 2004.]

EXHIBIT "B" TO ORDER

MISSISSIPPI RULES OF CIVIL PROCEDURE

RULE 42. CONSOLIDATION: SEPARATE TRIALS

(a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any of all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

(b) Separate Trial. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counter-claim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counter-claims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by Section 31 of the Mississippi Constitution of 1890.

[Amended February 20, 2004 to correct scrivener's error.]

Comment

The purpose of Rule 42 is to give the court broad discretion to decide how cases on its docket are to be tried so that the business of the court may be dispatched with expedition and economy while providing justice to the parties. To this end, Rule 42(a) permits consolidation and a single trial of several cases on the court's docket, or of issues within those cases, while Rule 42(b) allows the court to order separate trials of particular issues within a single case.

Consolidation of actions presenting a common issue of law or fact is permitted as a matter of trial convenience and judicial economy. The court is given broad discretion to decide whether consolidation would be desirable; the consent of the parties is not required. It is for the court to weigh the savings of time and effort that consolidation would produce against any inconvenience, delay, or expense that it would cause.

Although the courts take a favorable view of consolidation, the mere fact that a common question is present, and that consolidation is therefore permissible under Rule 42(a), does not mean that the court must order consolidation. Consolidation may be denied if the common issue is not a central one, or if consolidation will cause delay, or will lead to confusion or prejudice. In exercising its discretion to consolidate cases or particular issues, the court must recognize that on some issues consolidation may be prejudicial. To avoid prejudice, consolidation should be invoked only where the issues of law or fact justifying consolidation predominate over individual issues which will be heard in the consolidated proceedings. The additional expense that consolidation may cost to some of the parties is a factor to be considered though it is not necessarily conclusive. A motion to consolidate may be made as soon as the issues become apparent, even though not yet formally joined. A motion is not required, however, since the court may order...