Joinder by Court Order

Rule 19(a)(2) states the consequence of a required-person finding in the plainest terms: “the court must order that the person be made a party.”¹ The word must leaves the judge no discretion, and the sequence that leads to the order explains why. A court reaches the order only after finding that the absence would leave relief incomplete, would impair the absentee's practical ability to protect an interest, or would expose an existing party to inconsistent obligations. It reaches the order only when the absentee is subject to service and can be joined without destroying subject-matter jurisdiction.² Adding the person then cures a recognized harm at no jurisdictional cost, and a court free to refuse would be choosing to leave that harm in place for nothing.

Discretion enters only when joinder fails. Under modern procedure a court orders required persons joined “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.³ That choice belongs to Rule 19(b), which a later section takes up. Joinder is therefore the first remedy and dismissal the last. Once the court decides that joinder should be compelled and is feasible, the party seeking it usually gets a reasonable opportunity to serve the nonparty and bring it into the action, and dismissal for nonjoinder remains a last resort.⁴

Any party may press the absence of a required person, and a court with proper jurisdiction may also raise it on its own initiative, sua sponte. The court can act without a motion because the question of who may or must be parties reaches beyond the litigants. It affects the persons bound by the judgment, the judicial system's interest in the integrity of its processes and the respect owed its decrees, and society's interest in the fair and prompt resolution of disputes.⁵ A rule that waited for motions would leave those interests to the diligence of the parties. A plaintiff who omitted someone on purpose has no reason to object, and the absentee may not know the suit exists. A party's usual vehicle is the Rule 12(b)(7) motion, which asserts “failure to join a party under Rule 19” and which a later section develops.⁶

The court also need not wait for trial to issue the order. In one reported case the district court resolved Glueck's status on the pleadings and the parties' stipulations, and the appellate court saw no difficulty in that timing. With the vital factual issues joined, there was “no reason to postpone the resolution of the indispensability problem until after the commencement of trial.”⁷

Marta's joinder follows the usual route, in which the order starts the process and service completes it. Persons joined under Rule 19 are normally brought in as defendants by service of process, including persons who should have been plaintiffs but refused to join voluntarily.⁹ That route explains why the order is available only for a person who can be served. A court cannot sensibly command a joinder that it has no means to accomplish.¹⁰

Naming a person as a defendant does not fix that person's side for purposes of diversity. Courts realign joined parties according to the ultimate interest of each, and realignment may create or defeat jurisdiction.¹¹

Hypothetical Illustration

Ellis, an Ohio citizen, and Ngata, also an Ohio citizen, co-own a parcel in Texas. Ellis sues the neighboring owner, Dunmore, a Texas citizen, in federal court in Texas over the boundary. Ngata is a required person: a boundary ruling would reach Ngata's half, and Dunmore could face a second suit over the same line. Ngata can be served in Texas but declines to join and owes Ellis no obligation to lend her name. Ellis names Ngata as a defendant and serves process. Listed beside Dunmore, Ngata looks like an Ohio defendant facing an Ohio plaintiff, which would destroy complete diversity. Her interest on the boundary question matches Ellis's, however, so the court realigns her as a plaintiff and diversity is preserved. Had Ngata contested Ellis's claim to the line, she would have stayed on the defense side and her Ohio citizenship would have defeated jurisdiction.

Rule 19(a)(2) also permits a court to make a refusing person an involuntary plaintiff “in a proper case,” but only in very narrow circumstances. The device exists to circumvent the service requirement that normally governs the addition of a party. A proper case is one in which the recalcitrant absentee is not subject to service, yet equitable considerations require the absentee to accept the burden of lending his name as a plaintiff.¹² In practice courts approve it in one setting only: an exclusive licensee of a patent or copyright sues for infringement and names the owner, who refuses to join, as a coplaintiff.¹³ Everywhere else, including Ngata's situation, the route is to name the reluctant person as a defendant and serve process.

Exam Analysis Steps

Because the order rests on conclusions reached at earlier stages and then branches by the absentee's side of the case, it runs best as a short sequence:

Confirm that the absentee is a required person under Rule 19(a)(1), that the person can be served in the forum, and that joinder will not destroy subject-matter jurisdiction. If either gate fails, no order to join is available and the Rule 19(b) balance governs.
If both gates are open, order joinder, whether a party raised the point or the court noticed it. The rule leaves no discretion at this stage.
Bring the person in as a defendant by service of process, including a person who should have been a plaintiff but refuses.
Reserve the involuntary-plaintiff label for the exclusive-licensee setting, in which the owner of a patent or copyright is not subject to service.
For diversity purposes, realign the joined person according to ultimate interest.

Joinder by Court Order

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