"In federal procedure, failure to join necessary parties is waived if objection is not made in defendant's first responsive pleading; it is only the absence of an indispensable party which may (possibly) be raised later."Citibank, N.A. v. Oxford Properties & Fin. Ltd. , 688 F.2d 1259, 1262 n.4 (9th Cir. 1982). Because a non-joined heir is not indispensable for purposes of a wrongful death claim, the Court concludes that Defendants waived their argument for joinder, as it relates to this claim, by failing to object in their first responsive pleading.
"In federal procedure, failure to join necessary parties is waived if objection is not made in defendant's first responsive pleading; it is only the absence of an indispensable party which may (possibly) be raised later."Citibank, N.A. v. Oxford Properties & Fin. Ltd., 688 F.2d 1259, 1262 n.4 (9th Cir. 1982). Because a non-joined heir is not indispensable for purposes of a wrongful death claim, the Court concludes that Defendants waived their argument for joinder, as it relates to this claim, by failing to object in their first responsive pleading.
In Citibank v. Oxford Prop. & Finance Ltd., then-Circuit Judge Kennedy considered two related appeals brought in Guam by three parties: Citibank and Oxford, two creditors; and Lee, an individual who had borrowed funds from both Citibank and Oxford. 688 F.2d 1259, 1260 (9th Cir.1982). In one of several legal proceedings between the parties, Citibank succeeded in foreclosing on some of Lee's real property, and then commenced a second foreclosure action against Oxford and other junior lienholders in the property.
On the issue of waiver, the rule in the Ninth Circuit is that "failure to join necessary parties is waived if objection is not made in defendant's first responsive pleading; it is only the absence of an indispensable party which may (possibly) be raised later." Citibank, N.A. v. Oxford Properties & Finance Ltd., 688 F.2d 1259, 1262 n.4 (9th Cir. 1982) (emphases added). Thus, the Court must begin by assessing whether the Individual Defendants' motion is a challenge based on the failure to join "necessary" parties or a challenge based on the failure to join "indispensable" parties.
The timeliness requirements of Rule 12(h) counsel that "[i]n federal procedure, failure to join necessary parties is waived if objection is not made in defendant's first responsive pleading; it is only the absence of an indispensable party which may (possibly) be raised later." Citibank, N.A. v. Oxford Properties Finance Ltd., 688 F.2d 1259, 1263, n. 4 (9th Cir. 1982); Here, Defendants have not raised the issue of a necessary party in a timely fashion.
But "failure to join [required] parties is waived if objection is not made in defendant's first responsive pleading; it is only the absence of an indispensable party which may (possibly) be raised later." Citibank, N.A. v. Oxford Props. & Fin. Ltd., 688 F.2d 1259, 1262 n.4 (9th Cir. 1982). And this makes sense: The argument that a party is required for the case to proceed should be raised as soon as possible.
Consistent with our "strong policy against piecemeal appeals," we conclude that we lack jurisdiction over Defendants’ Medical Needs Appeal to the extent it concerns the Expert Orders. See Citibank, N.A. v. Oxford Properties & Fin. Ltd. , 688 F.2d 1259, 1261 (9th Cir. 1982). Accordingly, we cannot address the merits of Defendants’ arguments concerning propriety of any of these orders at this juncture and must dismiss the appeal to the extent it concerns those orders.
Randell T. Fennell, Saipan (18): Camacho v. Civil Serv. Comm'n, 666 F.2d 1257 (9th Cir. 1982) (provision for appointments to Civil Service Commission violated separation of powers provision of CNMI Constitution). Douglas F. Cushnie, Guam and Saipan (32): Fleming v. Department of Pub. Safety, 837 F.2d 401 (9th Cir.) (reversing verdict for police officer in section 1983 action), cert. denied, 488 U.S. 889 (1988); Citibank N.A. v. Oxford Properties Fin., 688 F.2d 1259 (9th Cir. 1982) (after district court reinstated first claim, it erred in reaching other claims dependent on trial of the first); Gioda v. Saipan Stevedoring Co., 855 F.2d 625 (9th Cir. 1988); Temengil v. Trust Territory of the Pacific Islands, 881 F.2d 647 (9th Cir. 1989) (class action employment discrimination suit involving application of civil rights statutes to trust territory government, private rights of action under Trusteeship Agreement and Trust Territory Code, and United States sovereign immunity), cert. denied, 496 U.S. 925 (1990); Gushi Bros. Co. v. Bank of Guam, 28 F.3d 1535 (9th Cir. 1994) (antitying provisions of Bank Holding Company Act were not applicable to transaction occurring entirely within Republic of the Marshall Islands). Traylor T. Mercer, Guam and Saipan (22): Diaz v. Trust Territory of the Pacific Islands, 876 F.2d 1401 (9th Cir. 1989) (reversing dismissal of class action employment discrimination suit for lack of notice); Temengil v. Trust Territory of the Pacific Isla
"In federal procedure, failure to join necessary parties is waived if objection is not made in defendant's first responsive pleading." Citibank, N.A. v. Oxford Properties & Finance, 688 F.2d 1259, 1263, n.4 (9th Cir. 1982). Regardless, the Court finds that Valley Water is not a necessary party within the meaning of Federal Rule of Civil Procedure 19 because its presence is not necessary for the Court to grant Plaintiff's injunction prohibiting Defendants from violating the MS4 Permit.
See Confederated Tribes of Chehalis Indian Reservation v. Lujan, 928 F.2d 1496, 1498-500 (9th Cir. 1991). An assertion that there has been a “failure to join necessary parties is waived if objection is not made in defendant's first responsive pleading ....” Citibank N.A. v. Oxford Prop. & Fin. Ltd., 688 F.2d 1259, 1262 n.4 (9th Cir. 1982). However, an assertion that there has been a failure to join indispensable parties may be raised for the first time at a later point in the proceedings.