Civil procedure. Oh, how I've missed you during my sojourn on the East Coast. And how welcome it is to confront you once again upon my return. Landing gear touched down at 2:10 p.m. and blogging about civil procedure at 4:00. The undiluted joy of it all.
The good thing about Judge Noonan's opinion in this case is that it's short, short, short. Six paragraphs. That's it.
The bad thing about it is that it's wrong, wrong, wrong. At least IMHO. Amazing that you can make so many mistakes so quickly. (And, in precisely that regard, did I mention that I love civil procedure?)
The issue here involves Rule 19 (in particular, necessary and indispensable parties) as well as supplemental jurisdiction (28 U.S.C. sect. 1367). Judge Noonan quickly messes up both of them.
First, Judge Noonan essentially holds that a party isn't indispensable under Rule 19 when, absent collusion with the plaintiff, it simply declares that it is not indispensable. ("When, as in this case, collusion with the plaintiff is manifestly absent, a defendant intervenor’s declaration that it is not indispensable satisfies any concern that a decision in its absence would have prejudiced it."). Uh, with all due respect, no. Parties can (and do) make such claims tactically; for example, here, when the intervenor wants to be in federal court, so wants the Rule 19 analysis to come out in a particular way. The truth is the truth. You judge whether or not a party is indispensable not by what the party says, but rather by what the facts actually establish. Otherwise there's too great a risk of manipulation. Wrong rule. Messes up Rule 19. Sorry.
Second, Judge Noonan also holds that supplemental jurisdiction exists over claims against a nondiverse intervenor even though the statute expressly states that supplemental jurisdiction doesn't exist over claims made by a plaintiff (as here) against a party (as here) added pursuant to Rule 24. Judge Noonan holds that this is the case because Section 1367(b) 0nly removes supplemental jurisdiction when such claims would be "inconsistent with Section 1332" (i.e., the diversity statute), and because some common law precedent that predated Section 1367 allowed claims against a nondiverse (nonindispensable) Rule 24 intervenor, such claims are not "inconsistent with Section 1332" and hence are allowed under Rule 1367. Sorry, but with all due respect, wrong again. The last clause of Section 1367(b) does not incorporate the common law; rather, it refers to things like the complete diversity requirement, which is clearly violated by (as here) the assertion of a claim by a California P against a California D. Section 1367 was not intended to codify the common law, and instead displaces it in a number of places. The last clause of Section 1367 simply doesn't do what Judge Noonan believes it does.
Civil procedure. It ain't easy. But it's important. And, in this one, Judge Noonan messes it up a bit.
