Plaintiffs commonly name numerous defendants in a single patent suit. Such defendants and their accused products often have nothing to do with each other and may even be direct competitors. Joining such unrelated defendants can create complications and expenses for the defendants.
A recent development tends to undermine this practice: the “rediscovery” of Fed.R. Civ.P.20(a)(2). This rule allows joinder of defendants in a single action where: “(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.” Several courts have recently found joinder of unrelated defendants to be improper, but some severed parties have ended up “rejoined” through consolidation. On the other hand, a ruling of misjoinder may open the door to an otherwise unlikely change of venue.
The Texas Approach
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