Ex parte Advanced Disposal Services South, LLC, [Ms. 1170320, Sept. 28, 2018] __ So. 3d __ (Ala. 2018). This splintered opinion by Justice Sellers (Sellers, J.; and Stuart, C.J., and Bolin, Main, and Mendheim, JJ., concur; Parker, Shaw, and Bryan, JJ., dissent; Wise, J., recuses) grants a petition for a writ of mandamus and directs the Circuit Court of Macon County to join the City of Tallassee as a necessary and indispensable party pursuant to Rule 19, Ala. R. Civ. P.
Twenty-seven actions were commenced in the Circuit Court of Macon County against Advanced Disposal and others seeking monetary damages and injunctive relief for exposure to allegedly contaminated water that had been illegally discharged into the Tallapoosa River, ultimately sold by the Utilities Board of Tuskegee for use by local citizens and businesses. Defendant, Advanced Disposal, moved to dismiss the action under Rule 12(b)(7), Ala. R. Civ. P., based upon a plaintiff's alleged failure to join Tallassee as a necessary and indispensable party as required by Rule 19, Ala. R. Civ. P. The trial court entered an order denying the motion to dismiss, concluding it could afford relief to the existing parties without the addition of Tallassee as a party. Advanced Disposal then filed the petition for a writ of mandamus seeking review of the denial of its motion to dismiss.
"Courts considering a Rule 12(b)(7) motion must look to Rule 19, which sets forth "a two-step process for the trial court to follow in determining whether a party is necessary or indispensable." Holland v. City of Alabaster, 566 So. 2d 224, 226 (Ala. 1990). In Ross v. Luton, 456 So. 2d 249 (Ala. 1984), this Court stated that mandamus review is a proper means by which to address whether a trial court has exceeded its discretion in refusing to join a party under Rule 19."
The opinion summarizes the essential principles of Rule 19 this way:
Next, if joinder of a necessary party is not feasible, then the trial court should proceed to determine under Rule 19(b) "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." Indispensable parties under Rule 19(b) are
"[p]ersons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience."
Shields v. Barrow, 58 U.S. (17 How.) 130, 139 (1854). Rule 19(b) sets forth the following factors for the court's consideration of whether a party is indispensable:
"[F]irst, to what extent a judgment rendered in the person's absence might be prejudicial to the person 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 nonjoinder."
"The determination of whether a party is indispensable under Rule 19(b) is based on equitable and pragmatic considerations." Ross, 456 So. 2d at 257. Finally, "[t]he absence of a necessary and indispensable party necessitates the dismissal of the cause without prejudice or a reversal with directions to allow the cause to stand over for amendment." J.C. Jacobs Banking Co., 406 So. 2d at 850–51.
The Court concludes the City is a necessary party because in its absence the plaintiff cannot be accorded complete relief. Relying upon facts arguably not found within the plaintiff's complaint, the Court concludes the City's presence in the lawsuit is required because "the majority of the effluent being discharged into the [Tallapoosa] river will continue to reach [plaintiff's] water supply even if an injunction is ordered for Advanced Disposal's leachate. ... And "because, the City, by entering into the [water treatment] agreement, pursuant to which it takes title to the leachate and treats the leachate, has a legally protected interest relating to the subject matter of this case that will be effected by the outcome of [plaintiff's] claims." Ms. *14-15.