Concept
Raising Nonjoinder
Required joinder and failure to join
Raising Nonjoinder
Rule 19 decides who must be in a lawsuit. Rule 12 decides how a party tells the court that someone is missing. This unit follows that second question through three stages: the motion that raises the defense, the rules that fix how long the defense lasts, and the consequences when the motion succeeds. All three depend on the sequence the earlier sections traced. A court that learns of an absentee first asks whether the person is required, then whether joinder is feasible, and only then whether the case can go forward without the person.
The defense carries its own timing rules because of what the court must decide to rule on it. To say who is “required,” the court must analyze the merits of the dispute.1 One branch of that analysis asks whether the absentee claims an interest relating to the subject of the action and whether deciding the case without the absentee may impair that person's ability to protect the interest2 or leave an existing party at substantial risk of double, multiple, or inconsistent obligations.3 No one can answer those questions without knowing what the plaintiff's claim asks the court to decide. That entanglement with the merits is why nonjoinder, unlike personal jurisdiction or venue, survives a defendant's silence.
The Rule 12(b)(7) Motion
Rule 12(b)(7) lists “failure to join a party under Rule 19” among the defenses a party may raise, and a motion to dismiss on that ground is the ordinary way an absentee's status reaches the judge.4 Rule 12(b) tells a party to assert every defense in the responsive pleading when one is required, but it also permits the listed defenses to be raised by motion.5 The Federal Rules encourage the parties to focus on the absence early by allowing a defendant to raise it even before answering the complaint.6
A party who objects to an absentee's omission has two tools: a motion asking the court to join the person under Rule 19, or a motion to dismiss under Rule 12(b)(7).7 The motion to dismiss promises more than it usually delivers. When the absentee is required, the court's first duty is to order the person made a party, and a person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.8 Dismissal arises only when joinder is not feasible. The court then determines whether, “in equity and good conscience,” the action should proceed among the existing parties or be dismissed,9 and the first factor it weighs is the extent to which a judgment rendered in the absentee's absence might prejudice the absentee or the existing parties.10 A single motion thus carries the whole sequence to the judge: whether the absentee is required, whether joinder is feasible, and, if it is not, whether the case should end. The earlier sections supply the analysis at each step, and the motion only delivers the questions.
The same motion ends differently when joinder fails. In Torrington, the court concluded that INA was indispensable and dismissed the case entirely, and Torrington remained free to sue Yost and INA together in state court, where diversity is unnecessary.11
The motion also serves a strategic purpose. For a defendant, Rule 19 operates as a second motion to dismiss, available when the defendant objects to the way the plaintiff structured the case.12 The plaintiff, who fashioned the complaint to suit her own interests, seldom complains about who is missing. The defendant may fear conflicting injunctive orders or some strategic disadvantage when only some of the interested persons are before the court.13 Torrington shows the gap between a stated reason and a motive. INA may have known of Yost's agreement when it hired him, and it may even have provided his defense. Yost, and INA with him, may have preferred state court. By persuading the court that INA was indispensable, Yost won dismissal from federal court and left Torrington to sue in state court.14 The court nevertheless decides the motion on the Rule 19 factors. On an exam, analyze whether the absentee is required and whether the balance favors dismissal, and treat a suspected preference for another forum as background.
Any party may press the absence of a required person, and the court may take it up without a motion from anyone.15 Republic of the Philippines v. Pimentel shows how far the first point reaches. The parties who moved to dismiss under Rule 19(b) there were Arelma and PNB, not the absent Republic and Commission. Arelma and PNB had been denied the interpleaded assets, and dismissal would benefit them by vacating that judgment. The Supreme Court held that a party that seeks to have a judgment vacated in its entirety on procedural grounds does not lose standing merely because it did not petition for certiorari on the substance of the order.16
Rule 12(i) governs when the court decides the defense. If a party so moves, any defense listed in Rule 12(b)(1) through (7) must be heard and decided before trial unless the court orders a deferral until trial, whether the defense appears in a pleading or in a motion.17 A defendant who pleaded nonjoinder in its answer can therefore still demand a pretrial ruling. The court may defer, and the Advisory Committee's comment discussed below explains when it should.
A movant who points only to another person who might share the blame has not made out a Rule 19 problem.
The motion should fail. Complete relief is available without Kelleher, and Rule 19(a)(1)(A) does not require a party who might be liable to the plaintiff instead of the defendant to be joined.18 Nothing in the hypothetical suggests that Kelleher claims an interest a judgment would impair or that Nashoba faces inconsistent obligations.
Timing and Waiver
A defendant who omits personal jurisdiction from its first Rule 12 response loses that defense; a defendant who omits nonjoinder does not. Rule 12(h)(2) preserves the nonjoinder defense: failure to join a person required by Rule 19 may be raised in any pleading allowed or ordered under Rule 7(a), such as an answer; by a Rule 12(c) motion; or at trial.21
The ordinary pattern is harsher. Rule 12(h)(1) provides that a party waives the defenses listed in Rule 12(b)(2) through (5): lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process.22 A defendant must assert them in its first response to the complaint, whether that response is a pre-answer motion or an answer, and a defendant that omits one loses it.23 Rule 12(g)(2) enforces the same discipline for motions. A party that makes a Rule 12 motion must not make another raising a defense or objection that was available but omitted from the first, except as Rule 12(h)(2) or (3) provides.24 That exception keeps nonjoinder alive, because silence about Rule 19 in an earlier motion does not trigger the bar. Even a waivable defense that appears in the answer must be pursued in timely fashion, since it can be lost “by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct.”25
Rule 12 treats nonjoinder differently because deciding who is “required” takes an analysis of the merits. Failure to state a claim gets the same special treatment, in part because both defenses are more closely tied to the substantive merits of the lawsuit. If a party could waive them by omitting them from a pre-answer motion, the action might continue without a required party or, anomalously, on a claim that has no support in applicable law.28 For nonjoinder the stakes also reach the absentee, since proceeding without that person risks impairing substantive rights. A party therefore does not waive the objection by failing to raise it at the outset.29
Preservation has an end point: a party loses the defense if it fails to assert it before the close of trial.30 The usual summary of Rule 12 timing sets the two groups side by side. Personal jurisdiction, venue, process, and service are waived if not raised in the first motion or answer, while failure to join may be raised any time before trial or at trial.31 Students make two opposite mistakes here. Some carry the personal jurisdiction waiver trap over to nonjoinder. Others conclude that nonjoinder costs nothing to hold back. Three qualifications correct the second mistake.
Delay cannot destroy the defense, but it can weaken the motion. The Advisory Committee's comment on Rule 19, quoted in Haas v. Jefferson National Bank of Miami Beach, says that a motion to dismiss for nonjoinder may be made as late as the trial on the merits. It adds that when the movant seeks dismissal to protect itself against a later suit by the absent person, and not to protect the absent person against a prejudicial judgment, the movant's undue delay can properly count against it as a reason for denying the motion.32 A defendant that truly feared a second suit would be expected to say so promptly, and one that waits until the eve of trial invites doubt about the prejudice it claims. The Supreme Court reasoned in a similar way after trial in Provident Tradesmens Bank & Trust Co. v. Patterson. A defendant may properly wish to avoid multiple litigation, inconsistent relief, or sole responsibility for a liability shared with another, but after trial, if the defendant failed to assert that interest, it is proper to treat it as foreclosed.33
The court may also decide later than the movant would like. A joinder question should be decided with reasonable promptness, but the same comment recognizes that decision may properly be deferred when adequate information is not yet available. The absentee's relationship to the action, and the practical effects of a judgment on that person and on others, may not be visible at the pleading stage, and in that case it is appropriate to wait until the action is further advanced.34 Whether an absentee claims an interest, and whether a judgment would impair it or expose a party to inconsistent obligations, are questions about the facts of the dispute, and a court that has seen only a complaint may not yet be able to answer them. Preserving the defense and deferring the ruling work together, so that neither side loses anything while the facts develop.
The court need not wait for a motion either. A person may be added as a party at any stage, on motion or on the court's own initiative,35 and a court with proper jurisdiction may consider sua sponte the absence of a required person.36 The appellate stage shows the same asymmetry. After trial a defendant's own interest in joinder may be foreclosed by silence, but a court of appeals should, when necessary, act on its own initiative to protect an absent person who had no opportunity to plead and prove an interest below. The judgment under review may also turn out not to affect any outsider's interest, even though before trial a judgment affecting that interest was possible.37 The defendant controlled whether and when to speak, and the absentee did not, so the absentee's interest continues to count.
Effect of Dismissal
A court dismisses under Rule 19(b) only after it finds that, “in equity and good conscience,” the action should not proceed among the existing parties.40 The older vocabulary shows how narrow that finding is. Courts divided absent persons into “necessary” parties, who must be joined if feasible but whose nonjoinder does not end the case, and “indispensable” parties, whose joinder is compelled even at the cost of dismissal. Those categories mark points on a continuum, set by the significance of each absentee's interest in the litigation. Under modern procedure the court orders joinder “if feasible.” If joinder is not feasible, the action may have to be abated, but only if “in equity and good conscience” it cannot proceed without the absentees.41
Because the finding is equitable, dismissal does not mean the court lacked jurisdiction. Some decisions speak as if the absence of an indispensable party were a jurisdictional defect, a view that authoritative cases have rejected over and over. The court has no jurisdiction over the absentee and cannot enter a judgment that binds the absentee, but it has jurisdiction over the existing parties and the power to make a judgment affecting their interests. It declines to proceed for discretionary reasons.42
A dismissal on that ground ends the federal case and leaves the claim alive. In Torrington, the dismissal left the plaintiff free to sue Yost and INA together in state court, where diversity is unnecessary.43 In Pimentel, the Supreme Court concluded that the present action could not proceed, yet observed that Merrill Lynch or other parties could commence further litigation in light of changed circumstances. They would not have to file in the district where the action arose, so long as venue and jurisdictional requirements were met elsewhere.44 A defendant who wins a Rule 12(b)(7) motion at the end of the Rule 19 sequence therefore gets less than the word “dismissal” suggests. Rule 21 reflects the same corrective attitude: the remedy for nonjoinder is to join the omitted person, and dismissal is called for only if that person cannot be served or the person's presence would destroy diversity.45
Treating the defect as equitable also protects judgments that have already been entered. In Provident Tradesmens, the Supreme Court faulted a court of appeals for a rigid approach to the absence of Dutcher. The lower court, the Court said, could have avoided all difficulties by phrasing the decree with care: payment on the Cionci judgment could have been withheld pending the suits against Dutcher and any relitigation by him, and counsel for petitioner had represented that the tort plaintiffs would accept limiting all claims to the amount of the insurance policy. The Court described what the court of appeals should have preserved as, subject to the appellant's other contentions, “a perfectly valid judgment” as to the parties.46 Were the defect jurisdictional, nothing could save a judgment against the existing parties. Because it is equitable, the court asks whether the case can fairly stand, and after trial the answer can be yes.
A separate tool handles the absentee whose joinder would destroy diversity. District courts may drop a dispensable nondiverse party to cure a diversity defect, but they may not drop an indispensable party to preserve federal jurisdiction, and the Rule 19(b) factors decide which kind of party the person is.47 A party whose joinder is improper may be dropped on motion or on the court's own initiative at any stage of the action and on such terms as are just, even after the verdict.48
The outcome changes when the nondiverse person cannot be spared, and Hearts with Haiti, Inc. v. Kendrick shows what late discovery costs. On remand from the First Circuit, the district court found that diversity had not existed when the action began, and it then considered what the absence of jurisdiction over Geilenfeld meant for the judgment HWH had won.49 The court held Geilenfeld indispensable. The HWH judgment could affect Kendrick's ability to defend himself in a later state-court suit by Geilenfeld, even though the federal court never had jurisdiction over Geilenfeld, and the court found no satisfactory way to lessen or avoid that prejudice to Kendrick. It acknowledged an extraordinary prejudice to both Geilenfeld and HWH from being deprived of the fruits of their victory, and called that a “markedly unfortunate but necessary consequence” of trying a case to completion in a court without proper jurisdiction.50
Provident and Hearts with Haiti were both decided after trial, and they came out differently. In Provident, a carefully phrased decree could protect the absent Dutcher.51 In Hearts with Haiti, no measure could lessen the defendant's exposure to a second suit.52 That contrast is why the Rule 12(b)(7) motion and the early identification of absentees matter. Raised early, the defect costs a refiling; raised after the trial, it can cost the judgment.