The Virginia Business Litigation Blog
In theory, Virginia follows a “one plaintiff per suit” rule: even if two plaintiffs are similarly situated, they should file their lawsuits separately and not jointly. There’s an exception for when there are at least six plaintiffs. The Multiple Claimant Litigation Act allows six or more plaintiffs to join together for purposes of filing a lawsuit if their claims involve common issues of fact and arise out of the same transaction or occurrence. (See Va. Code § 8.01-267.5). As a practical matter, however, multiple plaintiffs with similar claims often end up having their claims tried together regardless of the number of plaintiffs involved. If two cases are substantially similar and involve common issues of law or fact, trial courts can consolidate them for discovery and/or trial irrespective of the requirements of the Multiple Claimant Litigation Act.
Many trial courts take a pragmatic approach to litigation and will consolidate cases that involve identical claims and overlapping evidence. In the recent case of Rejuvenation Clinic, LLC v. Thang Van Dang, for example, two separate plaintiffs filed a lawsuit together in violation of the “one plaintiff per suit” rule. Having fewer than six plaintiffs, they did not meet the requirements of the Multiple Claimant Litigation Act that would have permitted them to file jointly. The Fairfax County Circuit Court acknowledged the procedural impropriety and severed the two cases, but immediately consolidated them for discovery and trial, recognizing the practicality and efficiency of trying these cases together.
The defendants argued for dismissal as a remedy for the procedural violation but the court held that severance, followed by consolidation, would be more appropriate. Any claim or issue can be severed and tried separately. (See Va. Code § 8.01-281(B)). Trial courts also have the inherent power to consolidate cases to be tried together. (See Allstate Ins. Co. v. Wade, 265 Va. 383, 392 (2003)). The court cited Clark v. Kimnach, 198 Va. 737, 745 (1957) for guidance on whether to consolidate two separate cases:
[T]he trial court has inherent power to order that several cases pending before it be tried together where they are the same nature, arise from the same act or transaction, involve the same or like issues, depend substantially upon the same evidence, even though it may vary in its details in fixing
responsibility, and where such a trial will not prejudice substantial rights of any party.
The Rejuvenation Clinic lawsuit involved numerous claims brought by two separate parties but the facts giving rise to each claim were identical. It was technically improper for the two separate plaintiffs to bring their claims in a single lawsuit, but the reality was that the claims should be tried together as the trial would involve the same issues and depend on substantially the same evidence. Had the claims been filed as separate lawsuits, the court would have agreed to consolidate them, so the court decided to consolidate the claims it had just severed.
Should procedural rules be followed? Yes, absolutely they should. Sometimes, though, objecting to a violation may accomplish nothing more than delaying the inevitable. In the Rejuvenation Clinic case, the court itself noted that “two to five plaintiffs almost always bring a single lawsuit when their claims are so substantially similar that they will be consolidated anyway” and that “[d]efendants almost never object because this predictable consolidation remedy makes objection pointless.”