Other courts have also questioned the reasoning of this precedent, noting "the Ninth Circuitโs requirement that an absent party affirmatively claim an interest in the subject of the action is often in conflict with the underlying purposes of Rule 19." Zacharias v. U.S. Bank, N.A., No. 14-2186 SC, 2014 WL 4100705, at *8 n.6 (N.D. Cal. Aug. 20, 2014). But, like this Court, the Zacharias court recognized that it is the law of the Ninth Circuit and therefore determined because the absent party "has not claimed an interest in the action he is not a required party" and need not be joined.
Accordingly, Mr. Cabral is not a required party under Rule 19. See Zacharias v. U.S. Bank, N.A., No. 14-02186 SC, 2014 WL 4100705, at *8 (N.D. Cal. Aug. 20, 2014) (finding that absent person was not a required party under Rule 19 where he had not come forward to claim an interest in the litigation).
4 Moore's Fed. Prac. ยง 19.03[4][a] (3d ed.) (noting that this clause of the rule "is primarily concerned with the threat posed to defendants by the nonjoinder of the absentee") (emphasis in original).Zacharias v. U.S. Bank N.A., No. 14-02186-SC, 2014 WL 4100705, at *8 n.6 (N.D. Cal. Aug. 20, 2014). This Court likewise "is skeptical that this is the best reading of Rule 19."
Northrop, 705 F.2d at 1043-44. Other courts in this district have relied upon Northrop and its progeny in holding that when an individual has not come forward to claim an interest in the action, that individual is not a required party under Rule 19. See, e.g., Zacharias v. U.S. Bank, N.A., No. 14-02186 SC, 2014 WL 4100705, at *8 (N.D. Cal. Aug. 20, 2014). In the present case, Guersenzvaig's testimony initially suggested that Patricio wished to become a party to the litigation but was under the mistaken impression that he could not do so because he resides in Argentina.
Plaintiff has failed to allege that a foreclosure took place, much less any facts to support any of the other elements required to be pled. See Zacharias v. U.S. Bank, N.A., No. 14-02186 SC, 2014 WL 4100705 at *4 (N.D. Cal., Aug. 20, 2014) (concluding that the plaintiff failed to state a claim for wrongful foreclosure because she did not allege that a foreclosure sale had taken place) (citing cases).
See Mabry, 185 Cal. App. 4th at 225. See, e.g., Dang v. Residential Credit Sols., Inc., Case No. 14-cv-02587, 2014 WL 5513753, at *5-6 (N.D. Cal. Oct. 31, 2014); Zacharias v. U.S. Bank N.A., Case No. 14-cv-02186, 2014 WL 4100705, at *3 (N.D. Cal. Aug. 20, 2014). Third, Davis claims that the Defendants violated Cal. Civ. Code ยง 2923.6 by refusing to consider his loan modification application.
"The burden is on the moving party to produce evidence in support of the motion." Zacharias v. U.S. Bank N.A., Civ. No. 14-02186 SC, 2014 WL 4100705, at *2 (N.D. Cal. Aug. 20, 2014) (citing Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990)). Defendants argue that plaintiff's co-borrower on the loan and deed of trust, Pablo Perez-Najera, must be joined in this action because the court cannot grant plaintiff's requested relief without him. Plaintiff requests various money damages, including compensatory, statutory, and punitive damages.
Even though it is in accord with the Rule's plain text, the requirement that an absent party affirmatively claim an interest in the action before a court can require its joinder has been criticized as strange. See Zacharias v. U.S. Bank N.A., No. 14-02186 SC, 2014 WL 4100705, at *8 & n.6 (N.D. Cal. Aug. 20, 2014) (discussing criticisms of the Ninth Circuit rule). After all, an absent party may be avoiding the litigation purposefully for reasons that Rule 19 abhors, e.g., so she can bring another suit over the same property later, and subject an initially-prevailing defendant to a second, adverse judgment.