ANATOMY OF BAD LAWYERING-PART III
Part II ended with Acme filing a motion to dismiss Smith’s complaint. Seems logical. The probem: In New York, there is no “mandatory joinder”. New York follows the “permissive joinder” rule, which can be found at CPLR § 1002:
(a) Plaintiffs. Persons who assert any right to relief jointly, severally, or in the alternative arising out of the same transaction, occurrence, or series of transactions or occurrences, may join in one action as plaintiffs if any common question of law or fact would arise.
(b) Defendants. Persons against whom there is asserted any right to relief jointly, severally, or in the alternative, arising out of the same transaction, occurrence, or series of transactions or occurrences, may be joined in one action as defendants if any common question of law or fact would arise.
(c) Separate relief; separate trials. It shall not be necessary that each plaintiff be interested in obtaining, or each defendant be interested in defending against, all the relief demanded or as to every claim included in an action; but 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 he asserts no claim and, who asserts no claim against him, and may order separate trials or make other orders to prevent prejudice.
The motion was denied. See Exhibit B, at 6/25/14. The result: 2 lawsuits remain. The problem: first, the risk of confusing the court (which did inevitably occur). Second, the two cases, were not exact mirror images. Acme (sloppily) had what amounted to ½ the case where it was the plaintiff, and ½ the case where it was the defendant.
So what should have been done: The only procedural mechanism available to reduce these two cases to one was for Acme (or Smith) to move to consolidate under CPLR § 602:
(a) Generally. When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.