§19.7SIGNIFICANT AUTHORITIES
Whether an absent party should be joined if feasible is a factual determination and the result will differ from case to case. Examples of CR 19's application in some specific cases follow.
(1)Ability to raise rule 19 issues on appeal
The rule in Washington is that appellate courts will not consider CR 19 issues for the first time on appeal. Draper Mach. Works, Inc. v. Hagberg, 34 Wn.App. 483, 488, 663 P.2d 141 (1983). In some cases, joinder of interested parties may be necessary to the court's subject matter jurisdiction or otherwise demanded by the interests of justice. In these situations, the court may consider issues of joinder for the first time on appeal. Joinder of parties necessary for a "complete determination of a controversy" is a jurisdictional requirement in a declaratory judgment action. Treyz v. Pierce Cnty., 118 Wn.App. 458, 462-63, 76 P.3d 292 (2003) (internal quotation marks omitted), review denied, 151 Wn.2d 1022 (2004); see also RCW 7.24.110. Cases decided under the declaratory judgment statutes have permitted consideration of issues of joinder for the first time on appeal, Williams v. Poulsbo Rural Tel. Ass'n, 87 Wn.2d 636, 643, 555 P.2d 1173 (1976), overruled on other grounds by Chem. Bank v. Wash. Pub. Power Supply Sys., 102 Wn.2d 874, 886-89, 691 P.2d 524 (1984) (holding motion to intervene under CR 24 untimely), and for the first time by posttrial motion, Henry v. Town ofOakville, 30 Wn.App. 240, 243, 633 P.2d 892 (1981), review denied, 96 Wn.2d 1027 (1982). These decisions are consistent with the general rule that questions of subject matter jurisdiction may be raised at any time. In In re Parentage ofL.B., 121 Wn.App. 460, 491, 89P.3d271 (2004), aff'd in part, rev'd in part on other grounds, 155 Wn.2d 679, 122P.3d161 (2005), cert, denied sub nom. Britain v. Carvin, 547 U.S. 1143 (2006), the court held sua sponte that a child was a "necessary party" in a common-law parentage action, citing constitutional considerations requiring that children be parties to actions to determine their parentage. See also State v. Santos, 104 Wn.2d 142, 146-47, 702P.2d1179 (1985). However, in the absence of questions about subject matter jurisdiction or other compelling circumstances, considerations of economy will ordinarily make Washington courts reluctant to consider CR 19 arguments for the first time on appeal.
On rare occasions, federal appellate courts have considered Fed. R. Civ. P. 19 issues not raised below, especially when the interests of an absent party have been prejudiced. See, e.g., Provident TradesmensBank & Trust Co. v. Patterson, 390 U.S. 102, 88 S. Ct. 733, 19 L. Ed. 2d 936 (1968). In Shimkus v. Gersten Cos., 816 F.2d 1318 (9th Cir. 1987), the U.S. Court of Appeals for the Ninth Circuit applied Fed. R. Civ. P. 19 to invalidate a class certification at the trial court level, holding that non-African-American minorities were necessary parties to a housing discrimination action. Although not specifically discussed, the rule 19 issue apparently arose for the first time on appeal. Id. at 1321-22; see also CP Nat'l Corp. v. Bonneville Power Admin., 928 F.2d 905, 912 (9th Cir. 1991) (the court may consider absence of a necessary party at any stage in the proceedings and may address the issue sua sponte if the parties fail to raise the issue).
(2)Agency procedures—public rights exception
When a party sues a government agency to change or construe government procedures, parties with a collateral interest in the enforcement of the procedures generally are not necessary parties. See Nat'l Licorice Co. v. N.L.R.B., 309 U.S. 350, 363, 60 S. Ct. 569, 84 L. Ed. 799 (1940) ("In a proceeding so narrowly restricted to the protection and enforcement of public rights, there is little scope or need for the traditional rules governing the joinder of parties in litigation determining private rights."); Conner v. Burford, 848 F.2d 1441,1458-60 (9th Cir. 1988), cert, denied sub nom. Sun Exploration & Prod. Co. v. Lujan, 489 U.S. 1012 (1989) (public land lessees were not indispensable parties in suit to require enforcement of environmental regulation despite probable effect of ruling on lessees); N.Alaska Envtl. Ctr. v. Hodel, 803 F.2d 466 (9th Cir. 1986) (miners did not have legally protected interests in suit concerning Department of Interior's mining claims regulations).
(3)Allocation of limited fund
Generally, when a suit determines substantive rights to allocation of a limited or fixed fund, each beneficiary of the fund is an indispensable party. Thus, other tribes were indispensable parties in litigation seeking reallocation of a share of the Columbia River salmon run. Makah Indian Tribe v. Verity, 910 F.2d 555, 558-59 (9th Cir. 1990). However, under the public rights doctrine, discussed above, the other tribes were not necessary or essential to claims requiring the government to alter its procedures in the future with regard to salmon allocation. Id. at 559.
(4)Bond holders
In an action to invalidate municipal bond authorization statutes, the holder of the bonds at issue was a necessary party. See Henry, 30 Wn.App. 240. In City ofFerndale v. Friberg, 107 Wn.2d 602, 610, 732 P.2d 143 (1987), however, the court held that a lawsuit to foreclose assessment liens did not require joinder of all holders of bonds for Utility Local Improvement District (ULID) improvements because (1) complete relief could be afforded between parties to the action; and (2) although bond holders could have a potential interest, the exemption of certain parties from assessment for ULID improvements did not preclude the bond holders from seeking redress for any complaints against the city.
(5)Boundary disputes
Generally, only persons with property adjacent to a disputed boundary line are necessary parties in the dispute. Reitz v. Knight, 62 Wn.App. 575, 585-86, 814 P.2d 1212 (1991). Exceptions threaten to swallow the rule, however, and in cases in which the parties seek to allocate an excess or deficiency of property or when the property lines are uncertain for all owners in a specific area, all potentially affected owners will be necessary parties. Id.
(6)Condemnation actions
All parties having the requisite interest must be joined in condemnation proceedings. However, joinder of their legal representative is sufficient. Port of Grays Harbor v. Bankr. Estate of Roderick Timber Co., 73 Wn.App. 334, 339, 869 P.2d 417 (1994).
(7)Consortium claims
RCW 4.08.030 governs questions concerning joinder of husband and wife. In Lund v. Caple, 100 Wn.2d 739, 675 P.2d 226 (1984), the court held that the statute did not require joinder of the primary injured spouse as a "necessary" party to a consortium claim. The court ruled that a "deprived" spouse may sue for loss of consortium either by joining in a lawsuit with the spouse who sustained primary injuries or by bringing an independent action. Id. at 744.
(8)Contracting parties
Generally, courts leave the joinder of obligors to the plaintiff's discretion, and the plaintiff may select defendants without being concerned about dismissal because of nonjoinder. 7 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure §1613 (3d ed. 2001 & Supp. 2013). In Freestone Capital Partners v. MKA Real Estate Opportunity Fund I, 155 Wn.App. 643, 669, 230P.3d625 (2010), lenders sought declaratory relief that a borrower was in default and money damages against guarantors. The court held that a holder of senior debt was not a necessary party when the claims for declaratory relief against the borrower and damages against the guarantors could not affect any actual interest of the senior debt holder. The court held that "[njonparty interests that are merely speculative and secondary to the issue at hand are insufficient to warrant dismissal under the [Uniform Declaratory Judgments Act]." Id. at 671 (internal quotation omitted). Similarly, in Martire v. Borjessan, 19 Wn.App. 556, 577P.2d596 (1978), sublessees were not indispensable parties in an action on the lease between the lessor and lessee. However, the court held that a casino operator could not challenge a contract between the Puyallup Tribe and the state when the tribe could not be joined due to tribal sovereign immunity and was found to be an indispensable party. Mudarri v. State, 147 Wn.App. 590, 605, 196P.3d153 (2008), review denied, 166 Wn.2d 1003 (2009).
(9)Contractors and subcontractors
In Farrell Construction Co. v. Jefferson Parish, La., 896 F.2d 136,142-43 (5th Cir. 1990), the Fifth Circuit held that a subcontractor was not an indispensable party in a delay dispute between the primary contractor and the owner, because the subcontractor was not in privity with the owner and could enforce no substantive right of its own. Id. at 142-43.
(10)Corporations
In securities litigation based on RICO allegations, a federal court ruled that a subsidiary corporation was not indispensable in a suit against its parent corporation. A "mere, theoretical possibility" of multiple or inconsistent obligations was not sufficient to require joinder. Pyramid Sees. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1122 (D.C. Cir.), cert, denied, 502 U.S. 822 (1991). The court also based its decision on the rule that joint tortfeasors are not indispensable in an action against other joint tortfeasors. Id.
(11)Cotenants in property
Generally, all tenants in common must join in an action for damages to the property. Mayo v. Jones, 8 Wn.App. 140,147,505 P.2d 157(1972). In the context of condominiums, however, one owner can bring suit when the owner has exclusive possession and control over a limited common area and brings the action for the protection of the rights associated with the use of that area. Rouse v. Glascam Builders, Inc., 101 Wn.2d 127, 677 P.2d 125 (1984). In Rouse, the court observed that because the other cotenants...
