I. Indispensable Party: A. "Whether a non-party is 'indispensable' is determined by the application of [FRCP] Rule 19.

"1 The analysis under Rule 19 "is heavily influenced by the facts and circumstances of each case."2 A Rule 19 analysis poses three successive inquiries. 3 1. First the court must determine whether a nonparty should be joined under Rule 19(a). a. That nonparty (or absentee) is referred to as a person required to be joined if feasible. 2. If an absentee meets the requirements of Rule 19(a), the second stage is for the courts to determine whether it is feasible to order that the absentee be joined. 3. Finally, if joinder is not feasible, the court must determine at the third stage whether the case can proceed without the absentee or whether the action must be dismissed.4 II. Test for Required Party under Rule 19(a): A. A person is required to be joined if feasible: 1. under Rule 19(a)(1)(A) if, in that persons absence, the court cannot accord complete relief among the existing parties; or 2. under Rule 19(a)(1)(B) if that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the persons absence may: a. as a practical matter impair or impede the persons ability to protect the interest or b. leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the

Virginia Surety Co. v. Northrop Grumman Corp., 144 F.3d 1243, 1247 (9th Cir. 1998)(citing Confederated Tribes of the Chehalis Indian Reservation v. Lujan, 928 F.2d 1496, 1498 (9th Cir. 1991)). 2 Id. at 1248 (citing Pit River Home and Agric. Co-op Ass'n v. United States, 30 F.3d 1088, 1098 (9th Cir. 1994)).
3

EEOC v. Peabody Western Coal Co. (Peabody II), 610 F.3d 1070, 1078 (9th Cir. 2010)(citing EEOC v. Peabody Western Coal Co. (Peabody I), 400 F.3d 774, 779 (9th Cir. 2005)).
4

Id.

interest.5 If a nonparty satisfies either if these alternative tests, it is necessary to the litigation.6 B. There is no precise formula for determining whether a particular nonparty should be joined under Rule 19(a). 7 C. A legally protected interest or claimed interest must be more than speculation about future events. 8 III. Test To Determine Whether Joinder Is Feasible: A. Once the court has determined that the nonparty is a necessary party, it will then consider whether the nonparty can feasibly be joined as a party. 9 A nonparty can be joined as a plaintiff or a defendant. 10 B. Generally, this involves a determination whether any immunities or other defenses apply that would prohibit the nonparty from being joined.11 IV. Test for Dismissal In Equity and Good Conscience: A. If a required party under Rule 19(a) cannot be joined as a plaintiff or a defendant, the courts look at the factors provided in Rule 19(b) to determine whether in equity or good conscience, the action should proceed among the existing parties, or should be dismissed.12 Pursuant to Rule 19(b), the four factors a court must consider in making this determination are: 1. The extent to which a judgment rendered in the persons absence might prejudice that person or the existing parties;
5

Id. at 1081; Dawavendewa v. Salt River Project Agricultural Improvement and Power Dist., 276 F.3d 1150, 1155 (9th Cir. 2002). 6 Dawavendewa, 276 F.3d at 1155 (citing Clinton v. Babbitt, 180 F.3d 1081, 1088 (9th Cir. 1999)). 7 Peabody II, 610 F.3d at 1078. 8 Dawavendewa, 276 F.3d at 1155 n.5 (citing McLaughlin v. Intl Assn of Machinists & Aerospace Workers, 847 F.2d 621 (9th Cir. 1988)). 9 Dawavendewa, 276 F.3d at 1159. 10 Peabody II, 610 F.3d at 1083. 11 See Dawavendewa, 276 F.3d at 1159 (holding that The Navajo Nation is a necessary party that cannot feasibly be joined to the litigation because it enjoys sovereign immunity from suit); Peabody II, 610 F.3d at 1083 (holding that the EEOC cannot join the Secretary of the Interior as a defendant because it is prevented by statute from filing suit against the Secretary on its own authority); Young v. Regence Blueshield, 389 Fed.Appx. 692, 693 (9th Cir. 2010) (holding that district court did not abuse its discretion in finding that the required parties, some 22,000 entries could not feasibly be joined)(citing Eldredge v. Carpenters 46 Northern California Counties Joint Apprenticeship & Training Comm., 662 F.2d 534, 536 (9th Cir. 1981) (discussing how joinder of 4500 employers proved impossible)). 12 Peabody II, 610 F.3d at 1083 (citing FRCP Rule 19(b)).

2. The extent to which any prejudice could be lessened or avoided by shaping the judgment or the relief; 3. Whether a judgment rendered in the persons absence would be adequate; and 4. Whether the plaintiff would have an adequate remedy of the action were dismissed.13 a. The Dawavendewa court identifies the fourth factor, as whether there exists an alternative forum,14 noting that [i]f no alternative forum exists [the court] should be extra cautious before dismissing the suit.15 B. The heart of this inquiry is the question of equity and good conscience.16 Furthermore, the inquiry is a practical one and fact-specific and designed to avoid the harsh results of rigid application.17 C. The Dawavendewa court notes that the prejudice test under Rule 19(b) is essentially the same as the inquiry under Rule 19(a). 18

13 14

Id. Dawavendewa, 276 F.3d at 1163 (citing Kescoli v. Babbitt, 101 F.3d 1304, 1310 (9th Cir. 1996)).
15
16

Id. (citing Makah Indian Tribe v. Verity, 910 F.2d 555, 560 (9th Cir. 1990)). Id. (citing Provident Tradesmens Back & Trust Co. v. Patterson, 390 U.S. 102, 125, 88 S.Ct. 733 (1968); also Dawavendewa, 276 F.3d at 1161). 17 Peabody II, 610 F.3d at 1083 (citing Makah, 910 F.2d at 558).
18

Dawavendewa, 276 F.3d at 1162 (citing Clinton, 180 F.3d at 1090).