I don't see a basis for objecting under Rule 19 to the plaintiffs' choice of defendants in an official capacity claim for injunctive relief. The plaintiffs sought the issuance of marriage licenses from the county official designated by state law as the official with a ministerial duty to issue them and sued her for refusing to issue them. As others have already noted, the supremacy clause supersedes any objection she might have had that complying with the constitution would cause her to violate state law, particularly given the order from the governor. In short, plaintiffs sued the defendant who could afford them all the relief they sought, so I cannot see why Rule 19(a) would authorize the court to order the joinder of others. Even if the plaintiffs might have had a claim against state officials (it is not obvious that they would have), Rule 19(a) does not empower a court to order the joinder of defendants simply because a plaintiff might have a viable claim against them. Although Temple v. Synthes Corp. arose in tort litigation for damages, its holding on the limited scope of power under Rule 19(a) would seem to dispose of a Rule 19 motion here too.
As to the third party complaint, Sam Bagenstos and Mike Dorf have already noted the limitation of the judicial power of the United States that arises from Pennhurst, a limitation that is not dependent on the particular source of statutory subject matter jurisdiction. There are also Rule 14 questions that lurk in the third party complaint arising from the frequently stated requirement that third party claims must be in the nature of derivative claims for indemnification should plaintiff prevail, not independent claims for relief against the putative third party defendant even if they arose from the same transaction. The claims of the clerk against the governor derive from her objection to the governor's order; they were ripe even before the plaintiffs sued. For that reason, they arguably are not proper third party claims. Of course even if they were, they would run into Pennhurst, but they are at least questionable attempts by a defendant to use Rule 14 to interfere with the plaintiffs' presumptive control over parties to litigation, the principle underlying Temple v. Synthes Corp. in the Rule 19 context. Mike Michael R. Masinter Professor of Law Nova Southeastern University 3305 College Avenue Fort Lauderdale, FL 33314 954.262.6151 masint...@nsu.law.nova.edu<mailto:masint...@nsu.law.nova.edu> -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin Sent: Monday, September 07, 2015 10:58 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>; Michael Dorf <miked...@gmail.com> Cc: Dellinger, Walter <wdellin...@omm.com>; Howard Wasserman <wasse...@fiu.edu>; Samuel Bagenstos <sba...@gmail.com> Subject: RE: More Davis strangeness The procedural discussion has been very helpful. One problem is that not all the right parties are in front of the court. I've been wondering why Rule 19 has not been more prominently discussed. It turns out that it has been invoked in various pleadings, and I'm wondering if it provides the best way out (and the best way to deal with similar problems should they arise in the future). Entry no. 32 on the district court docket is a motion to dismiss filed by Davis. One of the grounds is 12(b)(7): failure to join a party required by Rule 19. Briefing on this motion has been suspended pending disposition of the stay request and related matters. Rather than dismissal, the right response would seem to be a court order pursuant to FRCP 19(a)(2) requiring joinder of whichever state officials can get plaintiffs their marriage licenses. No Pennhurst problem and no supplemental jurisdiction problem with such an order. But this kind of order seems to be overlooked when the attention is on the PI, the stay request, the contempt proceedings, and the third-party complaint. ________________________________________ ________________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Monday, September 07, 2015 9:35 PM To: Michael Dorf Cc: Law & Religion issues for Law Academics; Samuel Bagenstos; Dellinger, Walter; conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>; Howard Wasserman Subject: Re: More Davis strangeness I've fixed the link to Davis's emergency motion to the CTA6 -- it's here: https://www.liberty.edu/media/9980/attachments/2015/090715_Emergency_Motion_for_Immediate_Consideration_and_Motion_for_Injunction_Pending_Appeal.pdf I've also added this UPDATE--please let me know if it's not correct: It's not clear that the Kentucky RFRA claim against a third-party would support "supplemental jurisdiction" under 28 U.S.C. 1367(a). And even if it did, the district court could decline such jurisdiction under 1367(c) because "the claim raises a novel or complex issue of State law." In any event, even if the court were inclined to hear the Kentucky RFRA claim, presumably it would be barred by the doctrine of sovereign immunity, see Raygor v. Regents, 534 U.S. at 531-32. On Mon, Sep 7, 2015 at 9:32 PM, Michael Dorf <miked...@gmail.com<mailto:miked...@gmail.com<mailto:miked...@gmail.com%3cmailto:miked...@gmail.com>>> wrote: I agree with Sam re Pennhurst. If Davis were invoking the state RFRA as a defense against the plaintiffs' PI motion-as she unsucessfully earlier-then she would have occasion to raise the state law point: She could say that an injunction against he is improper because full relief can be had against other officials w/o violating state law. But that door is closed and so now she really is simply asking a federal court to block the enforcement by the state of state law on state law grounds. -------------------------------------- Michael C. Dorf Robert S. Stevens Professor of Law Cornell University Law School 242 Myron Taylor Hall Ithaca, NY 14853-4901 Phone: 607-323-1492<tel:607-323-1492> Fax: 866-343-4688<tel:866-343-4688> miked...@gmail.com<mailto:miked...@gmail.com<mailto:miked...@gmail.com%3cmailto:miked...@gmail.com>> -------------------------------------- On Mon, Sep 7, 2015 at 9:13 PM, Samuel Bagenstos <sba...@gmail.com<mailto:sba...@gmail.com<mailto:sba...@gmail.com%3cmailto:sba...@gmail.com>>> wrote: But she's seeking to enforce a state law through the vehicle of an injunction against a state official sued in his official capacity. Why does 1331 versus 1367 matter for Eleventh Amendment purposes? I mean, in Pennhurst itself the plaintiffs brought both federal law and state law claims. On Mon, Sep 7, 2015 at 9:06 PM, Howard Wasserman <wasse...@fiu.edu<mailto:wasse...@fiu.edu<mailto:wasse...@fiu.edu%3cmailto:wasse...@fiu.edu>>> wrote: This isn't a situation in which a plaintiff is trying to enforce state law through § 1983 or Ex Parte Young, where that state law claim was the only basis for jurisdiction. Davis is here trying to bring a straight state-law claim, with jurisdiction coming not from § 1331 (as in Pennhurst), bur § 1367. Howard M. Wasserman Professor of Law FIU College of Law University Park, RDB 2065 Miami, Florida 33199 (305) 348-7482<tel:%28305%29%20348-7482> (786) 417-2433<tel:%28786%29%20417-2433> howard.wasser...@fiu.edu<mailto:howard.wasser...@fiu.edu<mailto:howard.wasser...@fiu.edu%3cmailto:howard.wasser...@fiu.edu>> Faculty Page: https://law.fiu.edu/faculty/directory/howard-m-wasserman/ http://ssrn.com/author_id=283130 ________________________________ From: Samuel Bagenstos <sba...@gmail.com<mailto:sba...@gmail.com<mailto:sba...@gmail.com%3cmailto:sba...@gmail.com>>> Sent: Monday, September 07, 2015 8:47 PM To: Howard Wasserman Cc: Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas Laycock; conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu%3cmailto:conlawp...@lists.ucla.edu>>; Law & Religion issues for Law Academics; Michael Dorf Subject: Re: More Davis strangeness I don't understand how the third-party complaint overcomes Pennhurst. On Mon, Sep 7, 2015 at 6:34 PM, Howard Wasserman <wasse...@fiu.edu<mailto:wasse...@fiu.edu<mailto:wasse...@fiu.edu%3cmailto:wasse...@fiu.edu>>> wrote: I would argue that there is jurisdiction over the third-party complaint under § 1367(a). Both the state claim and the plaintiffs Fourteenth Amendment claim arise from the dispute over the issuance of licenses and whether Davis is obligated to issue them (or allow them to be issued); that satisfies the "same case or controversy" requirement. Now, I could see Bunning declining jurisdiction under § 1367(c)(1), as this appears to be "a novel or complex issue of State law." The bigger problem is that the Sixth Circuit has no jurisdiction over this claim (or anything to do with Gov. Beshear), since there has been no district court decision on that claim. Howard M. Wasserman Professor of Law FIU College of Law University Park, RDB 2065 Miami, Florida 33199 (305) 348-7482<tel:%28305%29%20348-7482> (786) 417-2433<tel:%28786%29%20417-2433> howard.wasser...@fiu.edu<mailto:howard.wasser...@fiu.edu<mailto:howard.wasser...@fiu.edu%3cmailto:howard.wasser...@fiu.edu>> Faculty Page: https://law.fiu.edu/faculty/directory/howard-m-wasserman/ http://ssrn.com/author_id=283130<https://urldefense.proofpoint.com/v2/url?u=http-3A__ssrn.com_author-5Fid-3D283130&d=AwMFaQ&c=1QsCMERiq7JOmEnKpsSyjg&r=R8ji9-F7JABmqlfao3--vg&m=Sm2BB6HBo_AbWSwqTX1nE4Hz3b1zJ8Y50GwLkA8Gews&s=e8njAOCF-hUQdWl03UJc38JWCwYH8cgAu0tFv-mmV1c&e<http://ssrn.com/author_id=283130%3chttps:/urldefense.proofpoint.com/v2/url?u=http-3A__ssrn.com_author-5Fid-3D283130&d=AwMFaQ&c=1QsCMERiq7JOmEnKpsSyjg&r=R8ji9-F7JABmqlfao3--vg&m=Sm2BB6HBo_AbWSwqTX1nE4Hz3b1zJ8Y50GwLkA8Gews&s=e8njAOCF-hUQdWl03UJc38JWCwYH8cgAu0tFv-mmV1c&e>=>
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