Alves v. Emerald Correctional Management LLC
Filing
26
ORDER denying defendant's 23 motion to dismiss for failure to join an indispensable party without prejudice. Signed by Judge Frederick J Martone on 11/03/11.(ESL)
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
10
11
12
13
14
)
)
)
Plaintiff,
)
)
vs.
)
)
Emerald Correctional Management LLC,)
)
)
Defendant.
)
)
Grisell Alves,
CV 11-00509-PHX-FJM
ORDER
15
16
The court has before it defendant's motion to dismiss for failure to join an
17
indispensable party (doc. 23), plaintiff's response (doc. 24), and defendant's reply (doc. 25).
18
Plaintiff is currently married to Robert Alves. Plaintiff and her husband have been
19
living apart since 2008, although no divorce or separation proceedings have been initiated.
20
Robert Alves entered a rehabilitation facility in Oklahoma about two years ago to recover
21
from an addiction, and is currently living and working in Oklahoma. Plaintiff filed this action
22
on March 17, 2011, alleging that defendant wrongfully terminated her employment and
23
discriminated against her on the basis of sex in violation of Title VII of the Civil Rights Act
24
of 1964, 42 U.S.C. § 2000e et seq. Robert Alves was not named as a party.
25
After successfully moving to set aside entry of default, defendant answered the
26
complaint on August 1, 2011 (doc. 14). Defendant now moves to dismiss the complaint
27
28
1
pursuant to Rules 12(b)(7) and 19, Fed. R. Civ. P., for failure to join an indispensable party.1
2
Defendant argues that without Robert Alves as a plaintiff, the court cannot accord complete
3
relief among the parties. Given her estrangement from her husband, plaintiff would prefer
4
to prosecute her case separately, "without first obtaining her husband's permission or
5
cooperation." Response at 3.
6
Arizona is a community property state. Consequently, Arizona law requires that
7
spouses be sued jointly to reach community assets. A.R.S. § 25-215; Eng v. Stein, 123 Ariz.
8
343, 345, 599 P.2d 796, 798 (1979) (A.R.S. § 25-215 requires that actions to collect
9
community obligations "be brought against both the husband and wife"); Spudnuts, Inc. v.
10
Lane, 139 Ariz. 35, 36 (Ct. App. 1984) ("A judgment against one spouse does not bind the
11
community."). If defendant succeeds in this action, it might be awarded costs and attorney's
12
fees under Title VII. See 42 U.S.C. § 2000e-5(k). Defendant argues that unless plaintiff's
13
husband is joined as a party, defendant would not be able to enforce a judgment against the
14
marital community. See Weimer v. Maricopa Cnty. Cmty. Coll. Dist., 184 F.R.D. 309, 310-
15
11 (D. Ariz. 1998) (analyzing Arizona law and holding that spouse was a necessary party in
16
an action under 42 U.S.C. § 1983, because a judgment awarding attorney's fees to the
17
defendant if it prevailed would not be binding absent plaintiff's spouse). Thus, without
18
Robert Alves as a plaintiff, defendant argues that "the court cannot accord complete relief
19
among existing parties." Fed. R. Civ. P. 19(a)(1).
20
We disagree. If plaintiff prevails, the absence of her spouse from these proceedings
21
will not affect a judgment in her favor. And if defendant prevails, recovery of attorney's fees
22
is remote. Under Title VII, a defendant's attorney's fees are only recoverable when claims
23
are "frivolous, unreasonable, or groundless." Harris v. Maricopa County Superior Court, 631
24
F.3d 963, 971 (9th Cir. 2011) (citing Christianburg Garment Co. v. EEOC, 434 U.S. 412,
25
26
27
28
1
Rule 12(b), Fed. R. Civ. P. requires that a motion asserting a 12(b) defense "must be
made before pleading if a responsive pleading is allowed." Defendant's 12(b) motion was
filed two months after its answer to the complaint. Plaintiff has not objected to the timeliness
of the motion. Accordingly, we will not address the issue of timing.
-2-
1
422, 98 S. Ct. 694, 701 (1978)). We decline to conclude at this early stage of the case that
2
plaintiff's spouse is a necessary party based on a distant possibility that defendant might be
3
entitled to fees and costs.
4
Our decision today will not prejudice defendant. Rule 12(h)(2), Fed. R. Civ. P.
5
preserves the defense of failure to join an indispensable party, which can be raised as late as
6
trial. If summary judgment practice exposes plaintiff's claims to be frivolous, unreasonable,
7
or groundless, such that an award of attorney's fees to defendant is no longer mere
8
speculation, then defendant can renew its defense of Robert Alves' indispensability.
9
10
11
Therefore, IT IS ORDERED DENYING defendant's motion to dismiss for failure
to join an indispensable party without prejudice (doc. 23).
DATED this 3rd day of November, 2011.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?