Intervention Versus Required Joinder

Intervention Versus Required Joinder

Rule 24(a)(2) and Rule 19(a)(1)(B)(i) read so much alike that students often run them together. Rule 24(a)(2) entitles a nonparty to intervene who claims an interest relating to the property or transaction that is the subject of the action and is so situated that disposing of the action may as a practical matter impair or impede its ability to protect that interest, unless existing parties adequately represent the interest.¹ Rule 19(a)(1)(B)(i) describes a person who claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may as a practical matter impair or impede the person's ability to protect the interest.² The resemblance is no accident: both rules were substantially revised in 1966, the two were drafted together, and each lets absentees with important interests take part in litigation already before the court.³

That overlap suggests that a person who is a required party under Rule 19(a)(1)(B)(i) is also entitled to intervene under Rule 24(a)(2), because both provisions ask whether the judgment may as a practical matter impair the person's ability to protect an interest in the subject of the suit.⁴ A New Mexico uranium-mill operator illustrates the stake Rule 24(a)(2) protects. Kerr-McGee ran a mill in Grants under an NMEIA license whose renewal was pending, and the litigation it sought to join could have required an environmental impact statement before any uranium mill license issued in the state, or could have suspended or ended the agreement between the NRC and NMEIA. Either result would have reached Kerr-McGee, and a decision for the plaintiffs, the court observed, was not unlikely. Kerr-McGee therefore held an interest within Rule 24(a)(2).⁵ Courts keep some discretion under both rules, so the inference from Rule 19 to Rule 24 is a guide and not a guarantee.⁶

What separates the rules, then, is who sets them in motion. Rule 19 instructs the court to consider whether a person who was not made a party to the initial action should be made one, and it is the court or an existing party that suggests the absentee's interests deserve protection. Rule 24 authorizes an absentee who learns of the action to become a party on its own.⁷ The initiative matters. An absentee who moves to intervene has shown enough concern to act, and that choice should count for something.⁸

The shared wording does not make the two interests identical. As one court explained, the rules are entwined, but an 'interest' for one purpose is not precisely the same as for the other, and the occasions on which a petitioner should be allowed to intervene under Rule 24 are not necessarily limited to those in which the trial court should compel joinder under Rule 19.⁹ Intervention can therefore extend beyond the cases in which a court would compel joinder.

Rule 24(a)(2) also contains a screen that the quoted Rule 19 language lacks: an interest that existing parties adequately represent does not support intervention of right.¹⁰ A claimant to part of a tort settlement shows the screen at work. Paramount, which claims reimbursement out of the settlement in Maroney's case, wants exactly what Maroney wants, as large a recovery as possible. It offers no different point of view, claim, or relief; it wants only to be sure that Maroney's lawyer advocates well the position Paramount would itself assert. A court is therefore likely to find that an existing party adequately represents Paramount's interest, and routine intervention by every such claimant would give plaintiffs two lawyers where they now have one.¹¹

The rules part ways a third time over the absentee who does nothing. Rule 24(a) authorizes intervention of right but does not force even a person who meets its criteria to intervene.¹² In Martin v. Wilks, the petitioners argued that respondents, who knew the underlying suit might affect them and passed up a chance to intervene, were mounting an impermissible 'collateral attack' when they later challenged actions taken under a consent decree. Most courts of appeals had accepted that argument, but the Supreme Court agreed with the Eleventh Circuit's contrary view.¹³ The Court began with the principle that a person is not bound by a judgment in personam in litigation in which he is not designated as a party or to which he has not been made a party by service of process, a rule that reflects the tradition that everyone should have his own day in court.¹⁴ A person becomes bound, in other words, by being made a party; knowing of a suit and declining to join it does not do that. Rule 19 supplies the means of making a party of someone who has not volunteered.¹⁵

The two rules share one more feature, a jurisdictional limit in diversity cases. In an action founded solely on diversity, 28 U.S.C. § 1367(b) withholds supplemental jurisdiction over claims by persons proposed to be joined as plaintiffs under Rule 19 and by persons seeking to intervene as plaintiffs under Rule 24, as well as claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24, when exercising it would be inconsistent with § 1332.¹⁶ An absentee who meets the criteria for intervention of right may therefore still face a jurisdictional problem if complete diversity is lacking.¹⁷ The next section takes up jurisdiction over intervenors in full.

The matching language invites two errors on an exam. The first is to merge the two doctrines, when the question that separates them is who is asking: if the court or an existing party urges that the absentee be brought in, the issue is Rule 19, and if the absentee moves to enter, the issue is Rule 24. The second is to reason that an absentee who declines Rule 24's invitation has forfeited something. The absentee who stays out is not bound by the judgment for having stayed out; only being made a party binds.