Misjoinder and nonjoinder of parties

Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately. (dc) District court rule. Rule 21 applies in the district courts. Committee Comments on 1973 Adoption The rule principally relates to parties, not claims. Note that it addresses itself to two separate problems—misjoinder and non-joinder. The statement in the first sentence of the rule as to the impropriety of dismissal is relevant only to a misjoinder of parties. Of course, final dismissal may be appropriate in a case of non-joinder where Rule 19(b) applies. Non-joinder can be raised by a Rule 12(b)(7) motion to dismiss. Whether final dismissal is appropriate will turn upon consideration of the factors enumerated in Rule 19. A Rule 21 motion is also available in the non-joinder context in order to seek addition of the non-joined person. However, a misjoinder defect cannot be raised by a motion to dismiss but should be raised by a motion under this Rule. See, generally, 7 Wright & Miller, Federal Practice and Procedure, § 1684, p. 329 (1972). The practice under this Rule with respect to misjoinder differs from prior practice. Formerly, a misjoinder, unless waived, was fatal to recovery. Bell v. Allen, 53 Ala. 125 (1875); Patton v. Crow, 26 Ala. 426 (1855); Mosaic Templars of America v. Flanagan, 22 Ala.App. 377, 115 So. 860 (1928). Committee Comments Adopted February 13, 2004, to Rule 21