Lowry Economic Redevelopment Authority v. United States

71 Fed. Cl. 549, 2006 U.S. Claims LEXIS 148, 2006 WL 1644919
CourtUnited States Court of Federal Claims
DecidedJune 13, 2006
DocketNo. 06-75L
StatusPublished

This text of 71 Fed. Cl. 549 (Lowry Economic Redevelopment Authority v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lowry Economic Redevelopment Authority v. United States, 71 Fed. Cl. 549, 2006 U.S. Claims LEXIS 148, 2006 WL 1644919 (uscfc 2006).

Opinion

OPINION AND ORDER ON DEFENDANT’S MOTION FOR JOINDER OR CONSOLIDATION

WHEELER, Judge.

Before the Court is Defendant’s April 25, 2006 motion under Rule 19(a) of the United States Court of Federal Claims (“RCFC”) for joinder of the claims of the Plaintiff, Lowry Economic Redevelopment Authority (“LRA”), with the claims of four plaintiffs whose eases are consolidated under the lead case of Richmond American Homes of Colorado, Inc. v. United States, No. 05-280C (“Richmond”) 1, pending before Judge Law[550]*550rence M. Baskir. In the alternative, Defendant requests that this ease be consolidated with the Richmond cases as a “directly related case” under RCFC 40.2(a). Defendant filed its motion in this case, and provided a notice of its filing in the consolidated Richmond cases. Both the LRA and the four Richmond plaintiffs oppose Defendant’s motion. The plaintiffs in Lowry and Richmond do not have the same counsel, and the cases currently are at materially different stages.

Background

The Lowry and Richmond cases arise from the alleged failure of the Department of Defense and the United States Air Force to fulfill their obligations under Section 330 of the National Defense Authorization Act for 1993, and for breaching deed covenants made pursuant to Section 120(h) of the Comprehensive Environmental Responsibility Act (“CERCLA”), 42 U.S.C. § 9620(h). Plaintiffs acquired property at the former Lowry Air Force Base (“LAFB”), located in Denver and Aurora, Colorado, and claim that the property contained certain hazardous substances as a result of Defendant’s historic activities there. Plaintiffs claim damages for the costs of investigating and removing the hazardous substances, as well as lost profits and other economic losses.

Preliminarily, the Court observes that Defendant’s motion, while not technically untimely under the Court’s rules, comes at an advanced stage in the Richmond litigation. The intention of the rules is for the moving party to present the joinder issue at the earliest possible stage of litigation.2 As the LRA has noted, Defendant could have raised joinder as a defense in its Answer in the Richmond cases by filing a motion under RCFC 12(b)(7), or by raising its concerns in the Joint Preliminary Status Report filed in Richmond. (LRA Opposition at 3). At present, the parties in Richmond have completed discovery, and have agreed to a briefing schedule under which the first brief is due June 30, 2006. (Defendant’s Motion at 7). In contrast, Lowry is at a much earlier stage. The Joint Preliminary Status Report has just recently been filed, but no discovery has yet occurred. By waiting until now to assert that the LRA should be joined with the Richmond plaintiffs, Defendant has created a case management issue where either the Richmond plaintiffs would be delayed while Lowry catches up, or Lowry would be unfairly accelerated to meet an impending briefing schedule in Richmond.

Second, the Court notes that Defendant has filed its motion in the wrong ease. The undersigned, presiding over the Lowry case, cannot require the presiding judge in Richmond to add the LRA as a plaintiff in each of those cases.

Finally, even if Defendant had filed its motion on a timely basis and in the proper case, the Court is not convinced that the circumstances requiring joinder pursuant to RCFC 19(a) are present here.

DISCUSSION

A. Joinder Under Rule 19(a)

RCFC 19 “does not mandate that all claims relating to an action be resolved in one proceeding.” J.G.B. Enterprises, Inc. v. United States, 57 Fed.Cl. 415, 417 (2003) (citing Community Health Care Ass’n of New York v. Mahon, 106 F.Supp.2d 523, 530 (S.D.N.Y.2000)). Rather, the determination of whether to effect a joinder under that rule requires a two-step analysis. Id. at 416 (citing Brown v. United States, 42 Fed.Cl. 538, 563 (1998)). “First, this Court must determine whether [the party] is ‘necessary’ under RCFC 19(a). A ‘necessary’ party must be joined in the action if it is feasible to do so.” Id. (Citations omitted).

A party is deemed necessary if:

(1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the ac[551]*551tion in the person’s absence may (i) as a practical matter impair or impede the person’s 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 the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made an involuntary plaintiff.

Id. at 416 (citing RCFC 19(a)).3

If the party sought to be joined is deemed “necessary,” yet joinder is infeasible, the second step in the joinder analysis asks 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.” J.G.B. Enterprises, 57 Fed.Cl. at 416 (Citations omitted).

In this case, the Court must join the LRA to each of the individual plaintiffs in the consolidated Richmond cases if any of the following conditions apply:

1. failure to join the LRA would jeopardized the scope of relief, if any, to which the Richmond plaintiffs may be entitled in that case;
2. failure to join the LRA would prejudice the LRA’s ability to protect its own interests in the Richmond ease; or
3. failure to join the LRA would expose the United States to a substantial risk of multiple or inconsistent obligations following resolution of the Richmond case and the instant case.

Because none of the above circumstances is present in this case, Defendant’s motion for joinder is DENIED. The Court reviews each of the three factors below.

1. The Threat to Complete Relief for the Richmond Plaintiffs

Defendant’s stated concern regarding the completeness of relief for plaintiffs is misplaced. (See Defendant’s Motion for Joinder at 5). “[T]he term complete relief refers only ‘to relief as between the persons already parties, and not as between a party and the absent person whose joinder is sought.’” J.G.B. Enterprises, 57 Fed.Cl. at 417 (citing Arkwright-Boston Manufacturers Mutual Ins. Co. v. New York, 762 F.2d 205, 209 (2d Cir.1985) (quoting 3A J. Moore, Moore’s Federal Practice ¶ 19.07 — 1[1], at 19-96 (2d ed.1984))). Rule 19(a), therefore, focuses the Court’s concern for “complete relief’ upon the plaintiffs in the Richmond cases.4 Notwithstanding the fact that the consolidated Richmond cases are not before the undersigned, the Court does not foresee the specter of hollow recovery in Richmond.

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Related

JTG of Nashville, Inc. v. Rhythm Band, Inc.
693 F. Supp. 623 (M.D. Tennessee, 1988)
Community Health Care Ass'n of New York v. Mahon
106 F. Supp. 2d 523 (S.D. New York, 2000)
Brown v. United States
42 Fed. Cl. 538 (Federal Claims, 1998)
J.G.B. Enterprises, Inc. v. United States
57 Fed. Cl. 415 (Federal Claims, 2003)
Cienega Gardens v. United States
62 Fed. Cl. 28 (Federal Claims, 2004)
Lucent Technologies Inc. v. United States
69 Fed. Cl. 512 (Federal Claims, 2006)

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Bluebook (online)
71 Fed. Cl. 549, 2006 U.S. Claims LEXIS 148, 2006 WL 1644919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowry-economic-redevelopment-authority-v-united-states-uscfc-2006.