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Indispensable Party

Ex parte Advanced Disposal Services South, [Ms. 1190148, Sept. 18, 2020] ___ So. 3d ___ (Ala. 2020). The Court (Bryan, J.; Parker, C.J., and Mendheim, Stewart, and Mitchell, JJ., concur; Sellers, J., concurs in the result; Bolin, J., dissents; Wise, J., recuses) denies Advanced Disposal’s petition for a writ of mandamus seeking to direct the Macon Circuit Court to dismiss the action for failure to join the City of Tallassee. In an earlier mandamus proceeding, the Court determined that the City of Tallassee was a necessary party but held it could not determine whether its joinder was feasible because once joined, the City might object to venue. Ex parte Advanced Disposal Services South, LLC, 280 So. 3d 356, 363 (Ala. 2018). Subsequently, after its joinder, the City objected to venue, and the trial court dismissed the City and denied Advanced Disposal’s motion to dismiss the action for failure to join an indispensable party.

The Court applied the factors in Rule 19(b) Ala. R. Civ. P. to determine if the City was indispensable:

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 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.

Ms. *15.

As to the first Rule 19(b) factor, the Court concludes “… considering the possibility of prejudice to both Advanced Disposal and the City, we cannot conclude that the potential for prejudice is so great or so certain that it weighs in favor of a finding that the action cannot proceed, in equity and good conscience, without the City.” Ms. *28.

As to the second factor, the Court holds that because Advanced Disposal could implead the City as a third-party defendant without destroying venue in Plaintiff’s chosen forum, Macon County, any prejudice to Advanced Disposal by the Plaintiff’s failure to join the City is materially reduced. Ms. **32-33, citing 7 Charles Alan Wright et al., Federal Practice and Procedure § 1608 (4th ed. 2019).

As to the third factor, the Court concludes that

Our review of the second amended complaint (filed by plaintiff Tarver after the first mandamus proceeding) convinces us that Tarver can obtain adequate relief in the City’s absence. The controversy involved in this action is the alleged pollution of Tarver’s water supply. The allegations in Tarver’s second amended complaint indicate that Advanced Disposal is the sole source of leachate in the City’s stabilization pond and that Advanced Disposal’s leachate is the only reason the City’s stabilization pond releases harmful by-products into the river. Thus, if Tarver is awarded his requested injunction against Advanced Disposal so that Advanced Disposal is required to pretreat the leachate before it is delivered to the City, which, according to Tarver, would allow the City to effectively treat the leachate before it is released into the river, we fail to see how the injunction would not settle the controversy at issue – i.e., prevent Tarver from being further supplied allegedly polluted water from the river.

Ms. **32-33.

As to “whether Tarver ‘will have an adequate remedy if the action is dismissed for nonjoinder,’” Ms. *39, the Court concludes this factor does not support dismissal because “Tarver has an interest in proceeding in his chosen forum, and Advanced Disposal has not demonstrated that any of the other interests subject to consideration under Rule 19(b) weigh so heavily in favor of dismissal that the existence of an alternate forum should be controlling.” Ms. *42.

The Court concludes its analysis by holding that “although the Court might prefer any potential claims related to this action to be addressed at one time in one forum, ‘judicial economy and convenience do not in themselves provide grounds for dismissal’ under Rule 19.” Ms. *43, quoting Boone v. General Motors Acceptance Corp., 682 F.2d 552, 554 (5th Cir. 1982).

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