Case 1:10-cv-01216-RWR -MG -JDB Document 20
Filed 01/20/11 Page 6 of 21
-6-
(B) that person 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: (i) as a practical matter impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. FED. R. CIV. P. 19(a)(1). Rule 19(a) further states that a person who comes within its provisions, and “who refuses to join as a plaintiff[,] may be made either a defendant or, in a proper case, an involuntary plaintiff.” FED. R. CIV. P. 19(a)(2). Rule 19(b) then lists factors for the court to consider in determining whether an action should be dismissed if a person to whom Rule 19(a) applies cannot be joined. FED. R. CIV. P. 19(b). Under an earlier version of the rule, persons falling within Rule 19(a) were described as “necessary” parties and those within Rule 19(b) as “indispensable” parties. See 7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE §
1604, at 35 (3d ed. 2001). Little insists that Attorney General Holder
is neither necessary nor indispensable. Opp’n to Holder Mot. to Dismiss 8. In support of his contention that he may nonetheless name the Attorney General as a “nominal” defendant, Little cites SEC v. Cherif, 933 F.2d 403 (7th Cir. 1991). In Cherif, the Seventh Circuit described “nominal defendant” status as a “rather obscure common law concept.” Id. at 414. According to Cherif, a “nominal defendant has no interest in the property that is the subject of the litigation.” Id. at 414 n.13. Nor is there a “claim against him.” Id. (quoted in Opp’n to Holder Mot. to Dismiss 8-9). Instead, he is “non-interested.” Id. He is typically a “trustee, agent, or depository . . . who has