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Rule 39. Joinder of Persons Needed for Just Adjudication (1971)

TEXT

(a) Persons to be Joined if Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involun­tary plaintiff.

(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a) (1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder.

(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a)(1)-(2) hereof who are not joined, and the reasons why they are not joined.

(d) Exception of Class Actions. This rule is subject to the provisions of Rule 42.

Amended by order of July 21, 1970, eff. Jan. 1, 1971: The rule has been completely rewritten to adopt, with minor changes, the provisions of Federal Rule 19 as amended.

ADVISORY OPINIONS

(No. 22) Question: Where the owner of a por­tion of a royalty under an oil lease brings suit against the lessee to recover damages because of the breach of implied contract of reasonable development, is it manda­tory that all persons who own portions of the royalty be joined?

Answer: This matter is dealt with by Rule 39 which provides that persons hav­ing a joint interest shall be joined in the suit. This rule is taken from Federal Rule 19, and under the annotations to the Fed­eral rule it has been held a number of times that the phrase, "joint interest," should be construed to mean those who would be necessary in the sense of indis­pensable parties under the previous prac­tice.

If under the previous practice all royalty owners were not necessary parties in such a suit, then it is the opinion of the com­mittee that it would not be necessary to join them because of the adoption of new rules. On the other hand, if joinder of all would have been necessary under the old practice, then it is still necessary under the new rules.

The subcommittee calls attention to pos­sible relaxations suggested by and under the conditions stated in Subdivisions (b) and (c) of Rule 39 and in Rule 42.

The subcommittee feels that the above general construction of the rule is as far as it can properly go in answering the question. In other words, the subcom­mittee feels that it should confine its interpretations to general explanation of the rules, and should not undertake to brief questions arising under the facts of specific cases.

In the above opinion the subcommittee consulted with and was aided by Roy W. McDonald.

5 Tex. B.J. 287 (1942) reprinted in 8 Tex. B.J. 19 (1945).