Thursday, March 4, 2010

Joinder and Dispositive Motions

Though I have never blogged about it here, dispositive motions are currently my main legal interest. I recently published a student comment, for example, arguing that summary judgment has the capacity to be granted inappropriately in factually driven inquiries and that such decisions violate the Seventh Amendment. (Yes, I posted my comment on SSRN.)

I write today to float around an idea along these lines that I am considering addressing in some form:  whether increased use of party and claim joinder by plaintiffs, under Rules 13, 18 and 20 have led to an appreciable increase in granting 12(b)(6) motions and summary judgment. My (currently baseless) suspicion is that increased use of party and claim joinder may have played a contextual role in informing the Supreme Court's decisions in Celotex and its 12(b)(6) analogue in Twombly. While it is commonly understood that both decisions make it easier for defendants to prevail without going to trial, I wonder to what extent--if any--the decisions were designed as (or have been used as) tools for lower federal courts to simplify cases with multiple defendants and claims.

My current thinking is that this examination would be best conducted with an empirical analysis tracking the use of joinder over the last 30-40 years. I would be interested to hear our readers thoughts on the methodology, and the idea generally.


  1. How would limiting jionder affect dispositive motions? I think this idea is an indictment on the competence of district court judges, which have numerous other ways of handling their dockets, like say requiring tighter deadlines, etc. for the parties to expedite litigation.

  2. I don't mean that limiting it would affect dispositive motions; I mean that the number of dispositive motions may be related to the complexity the joinder rules can create. I'm not implying anything about the competence of district court judges who are, of course, the best and the brightest.

  3. Are you specifically leaving aside the debate surrounding Rule 23 (to focus on the defendant side) and its possible effects on judicial attitudes toward dispositive motions? If I remember correctly, Twombly was a class action suit.

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