Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19


Though Federal Rule of Civil Procedure 19 might appear to be one of the more esoteric of the Federal Rules, it is actually an exceptionally powerful device: It permits defendants to obtain dismissal of cases over which the court has valid jurisdiction, even when no other forum exists in which the action can be brought. This Article argues that, while Rule 19 was originally intended to facilitate the consolidation of litigation by requiring joinder of absent parties, it has evolved in an important subset of cases to serve a nearly opposite purpose. That is, in many cases in which a party may be affected by the litigation but cannot be joined because it is a sovereign possessing immunity from suit, courts have developed a near-categorical rule that the entire case may be dismissed—even if that means that the plaintiff is permanently denied a remedy. Further, the U.S. Supreme Court recently appeared to endorse this approach, holding that Philippine human rights victims’ claims to their former regime’s assets could not be litigated because two Philippine governmental entities could not be joined in the case.

In such situations, this Article argues, Rule 19 functions almost as an abstention doctrine, permitting courts to avoid decisions in cases that may raise sensitive intergovernmental or foreign-relations issues. This use of the rule is problematic for several reasons. It is not authorized by (or even discussed in) Rule 19’s text, and it appears at odds with the original purpose of Rule 19: to promote consolidated litigation of disputes, not to dispose of them entirely. Further, it permits the interests of the plaintiff—and the public interest in resolution of disputes—to be systematically slighted. Thus, although there may be situations in which an absent party’s sovereign immunity should be taken into account, courts have gone too far in their solicitude for absent sovereigns. This Article explores how this phenomenon has evolved and suggests ways in which courts’ analysis of Rule 19 factors should be modified to take account of the rule’s fundamental purposes.

About the Author

Assistant Professor of Law, University of California, Davis, School of Law.

By uclalaw