Yoder, et al v. Town of Morristown, et al

Filing 85

MEMORANDUM, DECISION AND ORDER the Defendants[ 42] Motion to Dismiss Rule 12(b)(7) motion to dismiss the Complaint for the failure to join the State of New York or St. Lawrence County under Rule 19, and their alternative motion to join the State and County under either Rules 19 or 20, id., are DENIED in their entirety. Signed by Senior Judge Neal P. McCurn on 11/7/11. (mnm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

Levy Yoder, et al.,
Plaintiffs,
-v.-

7:09-CV-0007 (NPM/GHL)

Town of Morristown, et al.
Defendants.

APPEARANCES
PROSKAUER ROSE LLP
Attorneys for Plaintiffs
1585 Broadway
New York, NY 10036

DANIEL GOLDBERGER, ESQ.
(Pro Hac Vice)
JASON GERSTEIN, ESQ.
(Pro Hac Vice)
MICHAEL T. MERVIS, ESQ.
RUSSELL L. HERSCHHORN, ESQ.

THE BECKET FUND FOR
RELIGIOUS LIBERTY
Attorneys for Plaintiffs
1350 Connecticut Avenue, N.W.,
Suite 205
Washington, DC 20036

ERIN N. KNIFFIN, ESQ.
(Pro Hac Vice)
ERIC C. RASSBACH, ESQ.
(Pro Hac Vice)
LORI H. WINDHAM, ESQ.
(Pro Hac Vice)

LEMIRE JOHNSON, LLC
Attorneys for Defendants
P.O. Box 2485
2534 Route 9
Malta, NY 12020

GREGG T. JOHNSON, ESQ.
CHRISTOPHER R. LEMIRE, ESQ.
JACINDA HALL CONBOW, ESQ.
MARK J. LEMIRE, ESQ.
APRIL J. LAWS. ESQ.

1

NEAL P. MCCURN, Senior District Judge

Memorandum, Decision, and Order
I. Introduction
Presently before the court is a motion by the defendants to dismiss the
Complaint pursuant to Rule 12(b)(7) of the Federal Rules of Civil Procedure for
failure to join the State of New York (“New York” or the “State”) and St.
Lawrence County (the “County”) under Rule 19.1 Alternatively, the defendants
move to join the State and County as defendants under Rule 19 or Rule 20.
Plaintiffs oppose the motion in its entirety. Decision on the pending motion is
based entirely on the submitted papers, without oral argument. For the following
reasons, the motion is denied in its entirety.
Plaintiffs, Amish residents of Morristown, New York, are Levi Yoder, Jonas
Zook, Sam Zook, John L. Hershberger, Menno S. Hershberger, Urie Hershberger,
Menno L. Glick, Andy A. Miller, Dannie L. Swartzentruber, Mosie Swartzentruber
, Peter D. Swartzenruber, Bishop Harvey Miller, and Bishop Mose Miller
(collectively “Plaintiffs”). Defendants are the Town of Morristown (“Morristown”
or “the Town”), Morristown Code Enforcement Officer Lanetta Kay Davis
(“Davis”), Town Supervisor Frank L. Putnam (“Putnam”), Town Deputy
Supervisor Howard Warren (“Warren”), and Town Council Members David Stout
III (“Stout”), Mark Blanchard (“Blanchard”), Christopher Coffin (“Coffin”), and
Gary Turner (“Turner”) (collectively “Defendants”).
1

Plaintiffs argue that Defendants’ Rule 12(b)(7) motion is untimely. But a Rule12(b)(7)
to dismiss for failure to join a party under Rule 19 cannot be waived, and a party may make the
motion at any time up to and including trial. See FED. R. CIV. P. 12(h)(2). After pleadings are
closed, a defendant may also make such a motion in a motion for judgment on the pleadings so
long as it is early enough that it will not delay trial. See FED. R. CIV. P. 12(c). As such, the court
will consider the merits of the motion.
2

II. Factual Background
Plaintiffs live in Morristown, New York, and practice the Swartzentruber
Amish faith. Compl. ¶ 42, Dkt. No. 1. Their religious tenets include: “1) living a
simple life, free of waste or extravagance[;] 2) maintaining separation from the
world and worldly customs[;] and 3) maintaining faith in God, rather than man, to
protect and provide for the Amish community.” Id. ¶ 43. Their religious laws are
collected in the “Ordnung” (or Order) that is passed down through the generations.
Id. ¶ 46. The Ordnung’s rules on housing and construction “ensure that [their]
religious beliefs are followed” and that their homes “are built safely.” Id. ¶ 46.
In accordance with their beliefs and religious laws, the Swartzentruber Amish,
among other things, do not use electricity in their homes, and they build their
“houses to be simple, basic, and free of modern conveniences or any
ornamentation.” Id. ¶ 44.
In or about late 2005 or early 2006, the Town Board of Morristown (“Town
Board”) approved Putnam’s appointment of Davis as the Town’s Code
Enforcement Officer. Compl. ¶ 15. Shortly after the appointment, Defendants
enacted Local Law #4 of 2006 (“Local Law #4”), which incorporated portions of
New York’s Uniform Fire Prevention and Building Code (“the Building Code”).
Compl. ¶¶ 3, 60. The Building Code sets forth the minimum level of protection
from fire or other elements for all buildings throughout New York. Defs.’ Mem. of
Law at 4; see N.Y. EXEC. Law §§ 370-83. The Executive Law also provides a
scheme by which each level of government (state, county, and local) enforces the
Building Code. N.Y. EXEC. LAW § 381(2).2 Morristown, rather than opting out of
2

The New York Executive Law states in pertinent part:
[E]very local government shall administer and enforce the [Building
Code] . . . on and after [January 1, 1984], provided, however, that a
3

enforcing the Building Code on its own, enacted Local Law #4, which “provides
for the administration and enforcement” of the Building Code by the Town and the
“mechanisms and procedures by which the Town is going to enforce” it. Defs.’
Mem. of Law at 5; see also Local Law #4, Ex. A to Aff. of Jacinda H. Conboy
(“Conboy Aff.”), Feb. 5, 2010, at 4, Dkt. Nos. 42-1 and 42-2.
Under Local Law #4, with limited non-religious exceptions, every
“construction, enlargement, alteration, improvement, removal, relocation or
demolition of any building or structure or any portion thereof” requires a building
permit. Local Law #4 § 4(a)-(b). All building permit applications must be
accompanied by “at least [two] sets of construction documents (drawings and/or
specifications) [that must be] prepared by a New York State registered architect . . .
[and] substantiate that the proposed work [and homes] will comply with the
[Building] Code and the Energy Code[.]” Local Law #4 § 4(d)(5).
Plaintiffs contend that obtaining construction documents and building homes
in accordance with such documents violates the Ordnung, and their “belief that

local government may enact a local law prior to [July 1] in any year
providing that it will not enforce such code[] on and after the first day
of [the following] January . . . . In such event the county in which
said local government is situated shall administer and enforce such
code[] within such local government from and after the first day of
January [following] the effective date of such local law, in
accordance with the provisions of [N.Y. Executive Law section
381(b)] unless the county shall have enacted a local law providing
that it will not enforce such code[] within that county. In such event
the [New York Secretary of State (“Secretary”)] in the place and
stead of the local government shall, directly or by contract,
administer and enforce the [Building Code.] A local government or
a county may repeal a local law which provides that it will not
enforce such code[] and shall thereafter administer and enforce such
code[] as provided [in the Executive Law.]
N.Y. EXEC. LAW § 381(2).
4

they must maintain the simple ways approved by their forebears, avoiding any
modern extravagances.” Compl. ¶ 75. Plaintiffs claim that Defendants are
imposing this requirement on Plaintiffs even though Defendants know that the
requirement violates Plaintiffs’ religious beliefs. Id. ¶ 76.
Davis has allegedly told Morristown’s Swartzenruber Amish community
“that Amish homes will not be Building Code-compliant unless: (1) batterypowered smoke detectors are installed[;] (2) the homes are equipped with
‘hurricane tie downs’[;] and (3) the foundations of their homes are ‘frost
protected.’” Compl. ¶ 78. The Ordnung, however, prohibits the use of electricity,
including battery-powered devices like smoke detectors, in Amish homes. Id. ¶ 79.
Requiring hurricane tie downs would also violate “Plaintiffs’ belief that they must
trust only in God, and not in man, to provide for their safety and welfare.” Id. ¶ 80.
Likewise, frost-protected foundations “symbolize an impermissible reliance upon
man, rather than God, to ensure . . . health and safety,” and they are a “wasteful,
unnecessary extravagance that . . . induce[s] pride.” Id. ¶ 81.
Plaintiffs claim that complying with Local Law #4 would be detrimental to
their ability to practice their faith. The Swartzentruber Amish are divided into
districts based on geographic location and size of membership. Compl. ¶ 48 n.1.
A district’s bishop ensures that the district’s members are following the Ordnung.
Id. ¶ 48. A district that changes its Ordnung in a manner that is “materially
different from the traditional” Ordnung will be unable to join in fellowship with
other districts, preventing the young people from that district from marrying those
in other districts. Id. ¶¶ 49-50. Also, a home that is built in accordance with
architect-certified plans or with electronic smoke detectors will be unable to host
the members of other communities. Id. ¶ 51. Rather than building churches, the
Swartzentruber Amish gather in personal homes for communal worship. Id. ¶ 52.
5

Thus, a ban on building homes in accordance with the Ordnung will effectively ban
Swartzentruber Amish houses of worship. Id. ¶ 53.
Plaintiffs claim that prior to 2006, Morristown’s Swartzentruber Amish
residents “were granted building permits and permitted to build their homes
according to their traditional standards and customs without interference from any
Morristown official.” Compl. ¶ 10. But since 2006, thirteen of Morristown’s
Swartzentruber Amish residents were given citations for building or moving a
structure without a permit. Compl. ¶¶ 66-72.
Plaintiffs allege that “Defendants are selectively and discriminatorily
enforcing Local Law #4 and the Building Code against Plaintiffs because of
Plaintiffs’ religious beliefs.” Compl. ¶ 12. Plaintiffs claim that these actions
violate the First and Fourteenth Amendments to the United States Constitution;
article I, sections 3 and 4, of the Constitution of the State of New York; 42 U.S.C.
§ 3601 et seq. (the “Fair Housing Act”), and 42 U.S.C. § 2000cc et seq. (the
“Religious Land Use and Institutionalized Persons Act” or “RLUIPA”). Compl. ¶
2.
III. Procedural Background
Defendants first move to dismiss the Complaint under Rule 12(b)(7) of the
Federal Rules of Civil Procedure for the failure to join the State of New York and
St. Lawrence County as parties under Rule 19. Defendants submit that the
provisions of Local Law #4 to which the Plaintiffs object are all required by the
Building Code. Defendants argue that complete relief cannot be accorded among
the existing parties without the presence of either the State or the County because
those entities would enforce the Building Code if Morristown stopped doing so.
Moreover, they argue that any decision by the court will “necessarily implicate the
State and the [Building] Code itself” because Plaintiffs seek “a determination that
6

the [Building] Code violates Plaintiffs’ constitutional First Amendment rights,”
and that “New York is an [necessary]3 party” because a ruling that the Building
Code violated the Constitution would require New York to change its laws. Defs.’
Mem. of Law at 5, Dkt. No. 42-4.
Plaintiffs assert that they are making an “as applied” challenge to
Defendants’ enforcement of Local Law #4 and the Building Code, and that they are
not asserting a facial challenge to the laws. See Pls.’ Mem. of Law at 8 (“This
action has nothing to do with the facial constitutionality of Local Law #4 or the
Building Code, but rather Defendants’ application of those laws.”); Pls.’ Sur-Reply
at 1, Dkt. No. 51-2 (“Plaintiffs are not making a facial challenge to the Building
Code . . . . Rather, Plaintiffs are contending that the Building Code ‘as applied’ to
them by Defendants is unlawful, and that Defendants are discriminatorily
enforcing the Building Code against [Plaintiffs].”) (emphasis in original).
“A ‘facial challenge’ to a statute considers only the text of the statute itself,
not its application to the particular circumstances of an individual.” Field Day,
LLC v. County of Suffolk, 463 F.3d 167, 174 (2d Cir. 2006) (citations omitted).
“An ‘as-applied challenge,’ on the other hand, requires an analysis of the facts of a
particular case to determine whether the application of a statute, even one
constitutional on its face, deprived the individual to whom it was applied of a
protected right.” Id. (citations omitted).

3

In their memorandum of law , Defendants use the term “indispensable,” but the court
will assume they mean to use the term “necessary.” Throughout their motion papers, Defendants
use the terms “necessary” and “indispensable” interchangeably. These two terms, however, are
not synonymous. “A party cannot be indispensable [under Rule 19(b)] unless it is a ‘necessary
party’ under Rule 19(a).” Jonesfilm v. Lion Gate Int’l, 299 F.3d 134, 139 (2d Cir. 2002). An
argument that the State would be required to change its laws implicates Rule 19(a), and not Rule
19(b). See Point IV infra (defining “necessary party” and “indispensable party” in greater
detail).
7

A facial challenge to the constitutionality of Local Law #4 may implicate the
State because the Local Law #4 merely codifies—at the local level—the
requirements of the Building Code. But after reviewing the Complaint, and in light
of Plaintiffs’ repeated representations, the court finds that the Complaint
challenges Defendants’ application and enforcement of Local Law #4 and the
Building Code and not the constitutionality of either law. In addition to seeking
monetary damages from Defendants, Plaintiffs seek a permanent injunction (1)
directing Defendants to issue building permits to Plaintiffs; (2) from enforcing
Local Law #4, the Building Code, or other laws, in a manner that unlawfully
discriminates against Plaintiffs based on their religious beliefs; and (3) from
imposing other penalties on Plaintiffs for exercising their protected rights. Compl.
at 36-37. Plaintiffs also request a declaratory judgment “that: Defendants violated
Plaintiffs’ civil rights through the manner in which they have enforced their laws
against Plaintiffs.” Id. at 37. The requested injunctive and declaratory relief all
relate to Defendants’ enforcement of Local Law #4 and the Building Code, and not
to the facial validity of the laws themselves.
Accordingly, the court construes the Complaint as asserting only an “as
applied” challenge to Defendants’ enforcement of Local Law #4 and the Building
Code. The court’s analysis of the pending motion will reflect that understanding.
Absent a compelling reason to do so, Plaintiffs may not later claim in this action
that they are asserting a “facial” challenge to the laws.4
Defendants also make an alternative motion to join the State of New York

4

See In re PCH Assocs., 949 F.2d 585, 592 (2d Cir. 1991) (“Under the law of the case
doctrine, a decision on an issue of law made at one stage of a case becomes binding precedent to
be followed in subsequent stages of the same litigation.”); Doe v. New York City Dep’t of Social
Servs., 709 F.2d 782, 789 (2d Cir. 1983) (“[the court] will not depart from [the law of the case
doctrine] absent ‘cogent’ or ‘compelling’ reasons”).
8

and St. Lawrence County “pursuant to [Federal Rule of Civil Procedure] 20”
because the State and County “are necessary and proper parties since there are
questions of law . . . that are common to the rights and duties of [the State and
County] arising out of the series of transactions or occurrences at issue in this
action.” Defs.’ Mem. of Law at 7 (emphasis added). Defendants then conclude
that New York is a “necessary party” because “the State’s ability to require
Counties and/or local municipalities to enforce the [Building] Code consistently
across the State will be impaired and/or implicated.” Id.
The alternative argument conflates the compulsory joinder of “necessary
parties” under Rule 19 and the permissive joinder of “proper parties” under Rule
20. Compare FED. R. CIV. P. 19 (“Required Joinder of Parties”)5 with FED. R. CIV.
P. 20 (“Permissive Joinder of Parties”).
Under Rule 19, an absentee is “necessary” if:
(A) in [his] absence, the court cannot accord complete relief
among existing parties; or (B) [the absentee ] claims an
interest relating to the subject of the action and is so
situated that disposing of the action in [his] absence may:
(i) as a practical matter impair or impede [his] ability to
protect the interest; or (ii) leave an existing party subject to
a substantial risk of incurring double, multiple, or otherwise
inconsistent obligations because of the interest.
FED R. CIV. P. 19(a)(1).
On the other hand, under Rule 20, an absentee is a “proper” defendant if:
(A) any right to relief is asserted against [him] jointly,
5

The 2007 Amendments to Rule 19 replaced the term “necessary” with “required” and
eliminated the term “indispensable.” These changes were intended to be stylistic only. FED. R.
CIV. P. 19 advisory committee’s note. See also Phillippines v. Pimentel, 553 U.S. 851, 855-856,
128 S. Ct. 2180 (2008). The traditional terms continue to be used as terms of art by courts,
attorneys, and commentators. Accordingly, the court will continue to use the traditional terms to
avoid confusion.
9

severally, or in the alternative with respect to or arising out
of the same transaction, occurrence, or series of
transactions or occurrences [in the pending action]; and (B)
any question of law or fact common to all defendants will
arise in the action.
FED. R. CIV. P. 20(a)(2).
By arguing that “there are questions of law . . . common to the rights and
duties of both [the State and County] arising out of the series of transactions or
occurrences at issue in this action,” Defs.’ Mem. of Law at 7, Defendants invoke
the language of Rule 20. But by then concluding that New York is a “necessary
party” because “the State’s ability to require Counties and/or local municipalities
to enforce the [Building] Code consistently across the State will be impaired and/or
implicated,” id. (emphasis added), Defendants invoke Rule 19 despite citing to
Rule 20 in their memorandum of law. Defendants’ Notice of Motion, however,
states that they seek “an Order directing that St. Lawrence County and the State of
New York be joined as parties pursuant to [Rules] 19 and/or 20.” Defs.’ Notice of
Mot. at 1, Dkt. No. 42 (emphasis added).
In the interest of thoroughness, the court will analyze Defendants’ motion
for joinder under both Rule 19 and Rule 20.
IV. Discussion
A. Dismissal under Rule 12(b)(7) and Joinder under Rule 19
An action may be dismissed for failing to join an indispensable party under
Rule 19 of the Federal Rules of Civil Procedure. See FED. R. CIV. P. 12(b)(7).
The moving party must show that the absent person or persons should be joined
under Rule 19. See Associated Dry Goods Corp. v. Towers Fin. Corp., 920 F.2d
1121, 1123-25 (2d Cir. 1990). Rule 19 “sets forth a two-step test for determining
whether a court must dismiss an action for failure to join an indispensable party.”
10

Viacom Int’l, Inc. v. Kearney, 212 F.3d 721, 724 (2d Cir. 2000). The court must
first “determine whether [the absentee] belongs in the suit, i.e., whether [he]
qualifies as a ‘necessary’ party under Rule 19(a).” Id. See also Provident
Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 234 88 S. Ct. 733 (1968)
(“Persons having an interest in the controversy, and who ought to be made parties .
. . are commonly termed necessary parties[.]”) (internal quotation marks and
citations omitted).
As already noted above, an absentee is “necessary” where:
(A) in that [party’s] absence, the court cannot accord
complete relief among existing parties; or (B) that [party]
claims an interest relating to the subject of the action and is
so situated that disposing of the action in the person's
absence may: (i) as a practical matter impair or impede the
person’s ability to protect the interest; or (ii) leave an
existing party subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations
because of the interest.
FED R. CIV. P. 19(a)(1). If a party does not qualify as necessary under Rule 19(a),
then the court need not decide whether its absence warrants dismissal under Rule
19(b). Viacom Int’l, 212 F.3d at 724 (citing Associated Dry Goods Corp., 920
F.2d at 1123). But where a party is “necessary under Rule 19(a), and joinder . . . is
not feasible for jurisdictional or other reasons, . . . the court . . . must determine
whether the party is ‘indispensable’” under Rule 19(b). Id. (citations omitted).
Factors to consider include:
(1) the extent to which a judgment rendered in the person’s
absence might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or
avoided by: (A) protective provisions in the judgment; (B)
shaping the relief; or (C) other measures; (3) whether a
judgment rendered in the person’s absence would be
11

adequate; and (4) whether the plaintiff would have an
adequate remedy if the action were dismissed for
nonjoinder.
FED. R. CIV. P. 19(b). If the party is “indispensable, then the court must dismiss
the action pursuant to Rule 19(b). Viacom Int’l, 212 F.3d at 725 (citations
omitted).
The court will now proceed with the first step in evaluating Defendants’
Rule 12(b)(7) motion, which is to determine whether the State or County are
“necessary” under either subparagraph (A) or (B) of Rule 19(a)(1). An absentee is
necessary if the court cannot accord complete relief among the existing parties
without the absentee’s presence. See FED. R. CIV. P. 19(a)(1)(A). “[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.”
Arkwright-Boston Mfrs. Mut. Ins. Co. v. New York, 762 F.2d 205, 209 (2d Cir.
1985) (internal quotation marks and citations omitted). The “complete relief”
clause is “concerned only with those who are already parties,” and it is irrelevant
that there might be future litigation involving the absentee. Mastercard Int’l, Inc.
v. Visa Int’l Serv. Ass’n, 471 F.3d 377, 385 (2d Cir. 2006). Mere speculation as to
what the absentee may (or may not) do in the future, including filing a claim
against one or more of the existing parties, is irrelevant. See Health-Chem Corp. v.
Baker, 915 F.2d 805, 810 (2d Cir. 1990) (“The speculative possibility of future
litigation . . . furnishes no basis for compulsory joinder” under Rule 19.).
In this case, Plaintiffs seek monetary, injunctive, and declaratory relief
against—and only against—Morristown, Morristown Code Enforcement Officer
Davis, Morristown Supervisor Putnam, Morristown Deputy Supervisor Warren,
and Morristown Town Council Members Stout, Blanchard, Coffin, and Turner.
12

They have all been named as defendants in the instant action. Plaintiffs will secure
the relief requested if the court were to declare that those parties were enforcing
Local Law #4 and the Building Code in a discriminatory manner. Likewise,
Plaintiffs will also secure the relief requested if this Court were to order those
parties to cease their enforcement of Local Law #4 and the Building Code in a
discriminatory manner.
Defendants, however, submit that if the court were to grant injunctive relief
and order the Town to cease its enforcement of the Building Code, then the State
and County would be required to enforce it, making a grant of injunctive relief a
“nullity.” Defs.’ Mem. of Law at 4-5. See N.Y. EXEC. LAW § 381(4)(c)-(d).6
6

Section 381 of the Executive Law provides:
If the [Secretary] determines that a local government has failed to
administer and enforce the [Building Code] in accordance with the
minimum standards promulgated [by the Secretary], the [Secretary]
shall take any of the following actions, either individually or in
combination in any sequence:
a. The [Secretary] may issue an order compelling compliance by
such local government with the standards for administration and
enforcement of the [Building Code].
b. The [Secretary] may ask the [State Attorney General] to institute
in the name of the [Secretary] an action or proceeding seeking
appropriate legal or equitable relief to require such local government
to administer and enforce the [Building Code].
c. The [Secretary] may designate the county in which such local
government is located to administer and enforce the [Building Code]
in such local government.
d. The [Secretary] may, in the place and stead of the local
government, administer and enforce the [Building Code] in
accordance with the minimum standards promulgated [by the
Secretary].
13

Defendants also contend that the State could “impose penalties, subject
[Morristown] to litigation[, and/or] revoke Morristown’s election to enforce” the
Building Code if the Town were to stop enforcing the Building Code. Id. at 5. See
N.Y. EXEC. LAW § 381(4)(a)-(b). Therefore, Defendants submit that the State is a
“[necessary]7 party and ultimately it is the State who has a process for review and
can make a determination with respect to Morristown’s right to enforce the Code.”
Defs.’ Mem. of Law at 6.
Under the New York Executive Law, any action by the State is
discretionary. See N.Y. EXEC. LAW § 381(4)(c)-(d) (discussing the steps that the
Secretary “may” take). Thus, at this juncture, any action that the State may take
against either Plaintiffs or Defendants is speculative. Likewise, the possibility of
future litigation between the State and the Town is also speculative. Such
speculation is not a proper basis for joinder under Rule 19(a)(1)(A), which is
concerned only with “accord[ing] complete relief among the existing parties.”
An absentee may also be necessary if he “claims an interest relating to the
subject of the action,” and his presence is needed to assure that the court’s
judgment does not “impair or impede [his] ability to protect the interest” later in
the litigation or to assure that an “existing party” will not be at a “substantial risk
of incurring double, multiple, or otherwise inconsistent obligations because of the
interest.” FED. R. CIV. P. 19(a)(1)(B)(i)-(ii).
Defendants argue that the State of New York is “necessary” because its
“ability to require Counties and/or local municipalities to enforce the [Building]
Code consistently across the State will be impaired and/or implicated.” Defs.’

N.Y. EXEC. LAW § 381(4).
7

See note 3 supra.
14

Mem. of Law at 7. But Defendants’ attempt to assert an alleged interest on behalf
of the State falls outside the language of Rule 19(a)(1)(B). “It is the [absentee
who] must ‘claim an interest,” and a present party cannot do so on the [absentee’s]
behalf. Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 49 (2d Cir. 1996). See also
ConnTech Dev. Co. v. Univ. of Conn. Educ. Props., 102 F.3d 677, 682 (2d Cir.
1996) (“Subparts (i) and (ii) [of Rule 19(a)(1)(B)]8 are contingent . . . upon an
initial requirement that the [absentee] claim a legally protected interest relating to
the subject matter of the action.”) (quoting Northrop Corp. v. McDonnell Douglas
Corp., 705 F.2d 1030, 1043 (9th Cir. 1983)). See also Aguinaga v. UBS AG, No.
09 Civ. 03261, 2010 WL 5093433, at *9-10 (S.D.N.Y. Dec. 14, 2010) (citing
cases). Here, Rule 19(a)(1)(B) is inapplicable because the State has not moved to
join the litigation or otherwise indicated to the court that it claims an interest the
subject matter of this litigation.9
The cases that Defendants use to support their propositions are not
persuasive. The plaintiff in Wymbs v. Republican State Executive Committee of
Florida, 719 F.2d 1072 (11th Cir. 1983) sought to overturn the Republican Party of
Florida’s local rule on how delegates to the 1980 Republican National Convention
would be seated. Id. at 1074. The district court found that the rule was
unconstitutional on its face and ordered the local party to cease its enforcement of
the rule. Id. at 1073. The local rule, however, merely codified the national
committee’s rule. Id. at 1080. The national committee was “free to continue” to

8

The text of the that opinion referred to the rule as Rule 19(a)(2), which was a label used
prior to the stylistic changes that were made to the Federal Rules in 2007. This court will use the
new label even where it discusses cases that might have used prior labels.
9

Although Defendants do not assert that St. Lawrence County is “necessary” under Rule
19(a)(1)(B), any attempt to do so would also be improper for the reasons discussed herein.
15

enforce its rule regardless of the district court’s finding and order. Id. The
Eleventh Circuit concluded that the national committee was a necessary party
because it was the national committee—and not the local party—that would have
to carry out the district court’s order. Id. at 1080. Thus, without the national
committee’s presence, the district court’s order would not provide complete relief.
Here, if Defendants ceased enforcing Local Law #4 or the Building Code in
a discriminatory manner, then Plaintiffs would receive the relief they requested
regardless of any actions that the State may take in the future. Moreover, Plaintiffs
do not challenge the facial constitutionality of either Local Law #4 or the Building
Code, and any determination that Defendants are enforcing the laws in a
discriminatory manner will not affect the facial validity of either law.
Reliance on Chicago Teachers Union v. Johnson, 639 F.2d 353 (7th Cir.
1980) is also misplaced. There, the Seventh Circuit concluded that the United
States Department of Labor was a necessary party because federal law was used to
determine whether unemployed teachers were entitled to unemployment benefits
that were funded by the federal government but administered jointly by the state
and federal governments, and federal regulations required the federal agency to
review the state agency’s determinations on whether the teachers met the
program’s eligibility requirements. Id. at 354, 358-59. Thus, the Department of
Labor (the absentee) would “ultimately be called upon to process” the teachers’
claims. Id. at 358-59. Likewise, in Lopez v. Arraras, 606 F.2d 347 (1st Cir. 1979),
the United States Department of Housing and Urban Development (“HUD”) was a
necessary party because the plaintiffs could not obtain the relief they requested
because HUD had the “final say as to the availability” of the funds at issue and the
plaintiffs had sued only state-level officials. Id. at 352.
In this case, any review by the State over Defendants’ enforcement of the
16

Building Code is discretionary and—at this juncture—speculative. Unlike Chicago
Teachers Union and Lopez, the law at issue here gives Defendants (composed of a
local government and local government officials) the authority to enforce the
Building Code at their sole option. See N.Y. EXEC. LAW § 381(2). Alternatively,
Defendants may elect that the State enforce the Building Code instead. See id.
Finally, Defendants here could pay damages without the State’s intervention, and
the declaratory and injunctive relief requested only impacts the Defendants’
enforcement of the laws.
The First Circuit in Lopez also discussed what is now subparagraph Rule
19(a)(1)(B) even though the absentee did not move to join the action. Lopez, 606
F.2d at 353. There, however, a representative of HUD (the absentee) arguably
asserted HUD’s interest by notifying the director of the local housing agency (a
named defendant) that HUD could not provide the funds that would be used to
satisfy any judgment of the action. Id. at 352. More importantly, under Second
Circuit precedent, the absentee itself must claim the interest, and a present party
may not do so on the absentee’s behalf.
Defendants also rely on in Kalinsky v. Long Island Lighting Co., 484 F.
Supp. 176 (E.D.N.Y. 1980), to support their proposition that the State’s presence is
necessary under Rule 19. See Defs.’ Mem. of Law at 6. In Kalinsky, the court
found Rule 19(a)(1)(B) to be a basis for dismissing an action even though the
absentee did not move to join in the action. See Kalinsky, 484 F. Supp. at 180.
New York’s Public Service Commission (“PSC”) ordered a local power company
“to submit a rate proposal” for a new pricing scheme. Id. at 177. A utility
customer who was affected by the new scheme sought an exemption from the
power company. Id. State law, however, prohibited the power company from
exempting the customer without first receiving the PSC’s permission. Id. at 180.
17

The court found that Rule 19(a)(1)(B) was a basis for dismissing the action
because disposition of the case “would most certainly impair or impede the PSC’s
interest and would make [the power company] subject to inconsistent obligations.”
Id.
In light of the Second Circuit’s more recent holdings that it is the absentee
itself who must claim the interest implicated in Rule 19(a)(1)(B), it is unclear
whether the court in Kalkinsky would still reach the same conclusion. In addition,
the PSC arguably asserted its interest when it ordered the local power company to
submit a rate proposal for the new scheme. Moreover, the state law at issue there
required the PSC’s approval before the local power company could take action,
and thus, there was a substantial risk that the power company would be subject to
inconsistent obligations because of PSC’s absence from the litigation. Here, the
risk that Defendants could be subject to inconsistent obligations is low because any
action that the State may take is discretionary.10 Finally, Rule 19 was used as an
alternative basis for dismissal in Kalinsky only after the court had already found
that dismissal was warranted because the complaint failed to state a claim upon
which relief could be granted. Kalinsky, 484 F. Supp. at 178-81.
To further support their motion, Defendants have asked the court to consider

10

The court recognizes that New York’s Executive Law permits New York’s Secretary
of State to “issue an order [to Defendants] compelling compliance” with the Building Code or to
“ask the [State Attorney General] to institute . . . an action or proceeding” to compel compliance.
N.Y. EXEC. LAW § 381(4)(a)-(b). Still, the risk of inconsistent obligations is insubstantial
because there are at least two other options that the Secretary may take that would not impact
Defendants at all. See id. § 381(4)(c)-(d). Moreover, even if the Secretary were to seek a court
order compelling Defendants to comply with the Building Code, as the Second Circuit has
recognized: “It is very difficult to believe that a subsequent tribunal faced with a party under a
prior court-ordered injunction will nevertheless order that party to perform the very obligations a
prior court has prohibited it from performing.” Mastercard Int’l Inc., 471 F.3d at 388 (affirming
the denial of an absentee’s motion to join under Rule 19).
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an e-mail that they received from a Regional Codes Division Representative of the
New York Department of State. See Conboy Letter, Apr. 20, 2010, Dkt. No. 57.
Defendants contend that this e-mail clarifies the State’s position, and they have
interpreted this letter as a “directive from the State[.]” Id. A portion of the e-mail
states: “[The New York Codes, Rules, and Regulations], and . . . [the
municipalities’] local laws do not waive permit or inspection responsibilities for
any regulated party, regardless of religious, ethnic or any other basis. To do less
would suggest that is selective enforcement involved, which is not appropriate.”
Thomson Email at 2, Apr. 15, 2010, Dkt. No. 57-1.
After reviewing the e-mail in full, it is unclear how this e-mail supports
Defendants’ motion. There is nothing in the e-mail to indicate that the court will
be unable to grant “complete relief among the existing parties” within the meaning
of Rule 19(a)(1)(A). The e-mail states that the Codes Division “expect[s] that all
municipalities with [Amish] population[s] continue to apply proper administration
and enforcement requirements on all regulated parties until such time, if ever, there
is a court order to the contrary or the Department of State’s regulations change to
reflect any exemption.” Thomson E-mail at 2 (emphasis added). The italicized
portion of that statement implies that Defendants (or any other municipality under
a similar injunction) should comply with the court’s order even if the order were
inconsistent with the State’s laws and regulations. Moreover, a statement raising
the possibility that the regulations may change to exempt religious communities is
insufficient to constitute a claim of interest by the State within the meaning of Rule
19(a)(1)(B). An order by the court in this case will not “impair or impede” the
State’s ability to change the regulations to exempt religious communities. Nor will
such a change subject Defendants to inconsistent obligations as the e-mail implies
that the change will exempt religious communities from the portions of the
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Building Code to which Plaintiffs find objectionable (i.e. any change by the State
will provide Plaintiffs with the same relief that they seek in this action).
In summary, the court finds that neither the State of New York nor St.
Lawrence County are “necessary” under Rule 19(a)(1)(A) as “complete relief” may
be accorded “among the existing parties.” Additionally, Defendants may not rely
on Rule 19(a)(1)(B) to show the State is “necessary” because Defendants cannot
“claim[] an interest” on an absentee’s behalf. Because Defendants have failed to
satisfy their threshold burden of showing that the State and County are “necessary”
under Rule 19(a), any discussion on whether they are “indispensable” under Rule
19(b) is unnecessary.
Accordingly, Defendants’ Rule 12(b)(7) motion to dismiss the Complaint for
failure to join the State or County under Rule 19 is denied, and Defendants’
motion to join the State and County under Rule 19 is also denied.
B. Joinder under Rule 20
Defendants also move to join the State of New York and St. Lawrence
County as “proper parties” under Rule 20. Rule 20 governs “permissive joinder,”
and it allows “proper parties” to be joined as additional plaintiffs or defendants at
the court’s discretion for purposes of judicial convenience. See FED. R. CIV. P.
20(a)(1)-(2).
However, the “joinder of defendants under Rule 20 is a right belonging to
plaintiffs . . . [and] a defendant cannot use Rule 20 to join a person as an additional
defendant.” Hefley v. Textron, Inc., 713 F.2d 1487, 1499 (10th Cir. 1983). See
also Gen. Inv. Co. v. Ackerman, 37 F.R.D. 38, 41-42 (S.D.N.Y. 1964) (denying a
defendant’s Rule 20 motion where the absentees that he sought to join were proper
parties under Rule 20 but not indispensable or necessary parties under Rule 19). A
defendant may only use Rule 20 if he has filed a counter claim or crossclaim. See
20

4-20 Moore’s Federal Practice § 20.02 ¶ 2(b)(i) (footnotes omitted) (A “defendant
who files a counter claim or a crossclaim in the pending case is treated as a
plaintiff for purposes of permissive party joinder.”). See also FED. R. CIV. P.
13(h).
Here, Defendants may not invoke Rule 20 because they have not filed either
a counter claim or a crossclaim. In making this conclusion, this court adopts the
practice of courts outside this circuit, as courts in the Second Circuit have not
addressed the matter.11 In this case, adopting the practice of preventing a defendant
who has not filed a counter claim or cross claim from using Rule 20 is consistent
with the Federal Rules. First, it respects Plaintiffs’ right to structure the litigation.
Moreover, permitting a defendant who has not filed a counter claim or cross claim
to use Rule 20 would render the rules governing third-party practice unnecessary.
Accordingly, Defendants’ motion for joinder under Rule 20 is denied.
11

Other circuits and district courts that have addressed the issue have reached the same
conclusion. See e.g., Hefley, 713 F.2d at 1499; Field v. Volkswagenwerk AG, 626 F.2d 293,
299 (3d Cir. 1980) (“Under Rule 20 . . . joinder of plaintiffs is at the option of the plaintiffs; it
cannot be demanded as a matter of right by the defendant.”) (internal quotations, citations, and
footnotes omitted); Chao v. St. Louis Internal Med., No. 4:06-CV-847, 2007 WL 29674, at *2
(E.D. Mo. Jan. 3, 2007) (“permissive joinder under Rule 20(a) is not available to the defendants
as a means to join additional defendants in this action”); Admin. Comm. of the Wal-Mart
Assocs. Health & Welfare Plan v. Willard, 216 F.R.D. 511, 515 (D. Kan. 2003) (“Rule 20 is not
available to [the defendant] as a means to join [an additional] party to the current action.”);
Moore v. Cooper, 127 F.R.D. 422, 422 (D.D.C. 1989) (“Rule 20(a) is a rule by which plaintiffs
decide who to join as parties and is not a means for defendants to structure the lawsuit.”);
McCormick v. Mays, 124 F.R.D. 164, 167 (S.D. Ohio 1988) (“plaintiff has the right to join one
or more of several joint tort feasors as defendants without joining all of them, and a defendant
has no right to compel a plaintiff to join those who plaintiff elects not to sue”) (emphasis in
original; citations omitted); Sternaman v. Macloskie, 37 F.R.D. 316 (E.D.S.C. 1965) (“Plaintiff .
. . has the right to join one or more of several joint tort feasors as party-defendants without
joining all of them, and defendants have no right to compel plaintiff to join those tort feasors
who plaintiff elects not to sue; neither can defendants insist that such parties be brought in as
party-defendants.”); Trahan v. S. Pac. Co., 209 F. Supp. 334, 338 (W.D. La. 1962) (“permissive
joinder is subject to the discretion of the Court . . . and cannot be demanded as a matter of right
by the defendant”).
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V. Conclusion
In accordance with the foregoing discussion, it is hereby
ORDERED that Defendants’ Rule 12(b)(7) motion to dismiss the Complaint
for the failure to join the State of New York or St. Lawrence County under Rule
19, see Dkt. No. 42, and their alternative motion to join the State and County under
either Rules 19 or 20, id., are DENIED in their entirety.

IT IS SO ORDERED.

DATED:

November 7, 2011
Syracuse, New York

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