Legal Memorandum: Misjoinder and Non-joinder of Parties

Issue: Under the laws of Texas, when will a court determine that involuntary plaintiffs were not properly joined under Texas R. Civ. P. 41?

Cases are clear that the authority to join a party is vested in the district court; it does not reside in the plaintiff.  See, e.g., Sabre Oil & Gas Corp. v. Gibson, 72 S.W.3d 812, 816 (Tex. App—Eastland 2002).  Generally, the burden is on the plaintiff to plead and prove that joinder is necessary.  Dina Pak Corp. v. May Aluminum, Inc., 417 S.W.2d 419, 424 (Tex. Civ. App. 1967).  Plaintiffs have made no such showing here through their Petition or otherwise.

Furthermore, no case supports the notion that an unwilling party can be forced into litigation as an “involuntary plaintiff” against his or her will merely because the original plaintiff and defendant think it would be a good idea.  Involuntary plaintiffs may be brought into a case only pursuant to Tex R. Civ. P. 39(a) which provides:

A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the […]

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