UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: March 4, 1975.
BERNARD KAMHI, APPELLANT,
MANNIE COHEN, APPELLEE
Appeal from a dismissal of an action for failure to join an indispensable party. Appellant, presently residing in Nevada, challenged a seizure of certain of his New York property by appellee Cohen, a court-appointed sequester, made in connection with the granting of a New York divorce to the former Mrs. Kamhi. The United States District Court for the Eastern District of New York, Edward R. Neaher, Judge, held that Mrs. Kamhi was a necessary party to the action, and dismissed the action when appellant failed to name her as such. Affirmed.
Smith, Oakes and Timbers, Circuit Judges.
OAKES, Circuit Judge:
This appeal raises a question of interpretation of Fed. R. Civ. P. 19*fn1 which was formerly entitled "Necessary Joinder of Parties" and is now entitled "Joinder of Persons Needed for Just Adjudication." The appellant, Bernard Kamhi, M.D., presently residing in Nevada, is the former husband of Shirley Kamhi. The appellee, Cohen, is the receiver and sequester appointed in the former Mrs. Kamhi's New York divorce action against the appellant. Cohen's function is to bring before the court any property belonging to Dr. Kamhi which might be used to pay alimony and child support awarded in connection with the granting of the New York divorce.
The suit from which this appeal is brought was one commenced by Dr. Kamhi in an attempt to set aside the seizure, by Cohen, of appellant's so-called Keogh Plan Retirement fund, to which Dr. Kamhi contributed while he was practicing medicine in New York.*fn2 The trustee for the fund is a bank in Staten Island, New York.
The ground upon which appellant bases his claim for relief focuses upon the dual aspects of matrimonial actions. On the one hand, the action is a proceeding in rem the purpose of which is to alter the matrimonial status of the parties before the court; the proceeding, however, can also have a substantial in personam aspect, fixing the rights and duties of the parties involved with respect to alimony and child support.*fn3 Appellant maintains that the New York divorce which his former wife obtained on April 25, 1974, was only an in rem judgment, since it was made at a time when he contends he was a bona fide resident of Nevada.*fn4 Accordingly, he takes the position that the sequester, appointed in the New York divorce action, was without authority to seize any of his property since a seizure subsequent to judgment would require that the court have had in personam jurisdiction over the appellant.*fn5 Caplan v. Caplan, 30 N.Y.2d 941, 287 N.E.2d 385, 335 N.Y.S.2d 693 (1972); Geary v. Geary, 272 N.Y. 390, 6 N.E.2d 67 (1936). But see Tarshish v. Tarshish, 27 App. Div. 2d 909, 278 N.Y.S.2d 718 (1st Dep't 1967).
Without reaching the merits of appellant's claims, the court below dismissed the action on the ground that appellant had failed to include his ex-wife "as an indispensable party," giving one month's leave to appellant to serve an amended complaint. Appellant did not avail himself of this opportunity.
While the label "indispensable party" is misleading, we believe that Dr. Kamhi's former wife should have been joined under Rule 19(a) and that the court below quite properly considered that in "equity and good conscience" as required by Rule 19(b) the action should be dismissed. We accordingly affirm although we invite the district court on remand to give appellant one further opportunity to amend.
We say that the term "indispensable party" is misleading because the very essence of the amendments to Rule 19 in 1966 was to abandon the rigid thinking brought about by the use of this and other labels in the old Rule 19. See Advisory Committee Note to the 1966 Amendment of Rule 19(a), 39 F.R.D. 89, 91-92; Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356, 364-66 (1967). That rigid thinking had utilized the rather flexible categorizing of Shields v. Barrow, 58 U.S. (17 How.) 130, 15 L. Ed. 158 (1855),*fn6 to turn old Rule 19 into a rather inflexible rule even going so far as to equate "indispensable" with "having a joint interest" under subdivision (a). See United States v. Washington Institute of Technology, Inc., 138 F.2d 25, 26 (3d Cir. 1943). Cf. Chidester v. City of Newark, 162 F.2d 598 (3d Cir. 1947). The courts, in short, had forgotten the admonition of Judge Learned Hand, speaking in Roos v. Texas Co., 23 F.2d 171, 172 (2d Cir. 1927), cert. denied, 277 U.S. 587, 72 L. Ed. 1001, 48 S. Ct. 434 (1928), of Rule 39 of the Equity Rules (predecessor to Rule 19) and its provision that gave discretion to the court to proceed without parties ordinarily necessary but prescribed that the decree must be without prejudice to those who are absent: "The general statement does little to advance matters, until one knows what is the test by which to ascertain when such rights can be protected and when not, and this we understand to be an entirely practical question, dependent in each case upon the facts." (Emphasis added.)
In any event, Professor John W. Reed's seminal article, Compulsory Joinder of Parties in Civil Actions, 55 Mich. L. Rev. 327 (1957), which was a keystone of the 1966 changes in Rule 19, pointed out the various interests that should be involved in a Rule 19 decision, not the least of which was "the social interest in the orderly, expeditious administration of justice." Id. at 330. He called for abandonment of the labels "necessary" and "indispensable." Id. at 328-29. In the change of the rule's name to which we first alluded, as well as in its revised body, Professor Reed's thinking has largely been followed. Thus Rule 19 today involves a balancing of interests -- those of the parties and of the outsider, those of the public and of the court in seeing that the litigation is both effective and expeditious, Schutten v. Shell Oil Co., 421 F.2d 869 (5th Cir. 1970), while taking into account "equity and good conscience."*fn7 Relying on the philosophy of United Mine Workers v. Gibbs, 383 U.S. 715, 724, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966), that "joinder of claims, parties and remedies is strongly encouraged," Professor Wright has stated that "the rule should be employed to promote the full adjudication of disputes with a minimum of litigation effort." 7 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1602 at 18 (1972).
With these considerations in mind, we will try to employ Judge Hand's pragmatic approach to determine whether Judge Neaher's discretion was properly exercised. From the standpoint of the appellant as plaintiff below, he has, of course, the right to choose his forum, although we have only recently said that "there is particularly strong reason for abstention in cases which, though not within the exceptions for matters of probate and administration or matrimony and custody actions, are on the verge, since . . . they raise issues 'in which the states have an especially strong interest and a well-developed competence for dealing with them.'" Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509, 516 (2d Cir. 1973). Dr. Kamhi's reluctance to go into state court is understandable in view of N.Y.C.P.L.R. § 303 (McKinney 1972)*fn8 which might be construed to give Dr. Kamhi's former wife an opportunity to obtain personal jurisdiction over appellant in a counter-claim for alimony or support. This is a matter which we are little competent to, and do not, decide, particularly in the light of N.Y.C.P.L.R. § 302(b) (McKinney Supp. 1974)*fn9 which, even though enacted after the judgment of divorce in this case, might conceivably be construed to give some sort of continuing jurisdiction over the doctor despite his residence elsewhere. At the same time, one may question why the commencement of this action is not in and of itself a vehicle for service by the ex-wife of the husband's attorney under § 303; in other words, we wonder what he stands to gain by proceeding here, as opposed to proceeding against the sequester in state court, although we understand his contention that § 303 does not apply to federal court actions. To be sure, he speaks somewhat reproachfully of the constitutional implications of New York's asserting in personam jurisdiction in what he says is an in rem action, but there is nothing to indicate to us that the New York courts cannot, as they have been able to do in the past, adequately deal with the constitutional dictates of Williams v. North Carolina II, 325 U.S. 226, 89 L. Ed. 1577, 65 S. Ct. 1092 (1945).
As for the appellee here, the sequester, he was appointed in the divorce proceeding by the Supreme Court, Kings County. He is an officer of and responsible to that court, acting as he does under N.Y. Dom. Rel. Law § 233 (McKinney 1964). Interestingly, it is possible that under N.Y. Dom. Rel. Law § 235 (McKinney 1964), the appellee does not even have the power to examine and review the matrimonial file in the Supreme Court, which might well be necessary to the proper assertion of a defense made below, that there was in fact in personam jurisdiction over the appellant in the divorce action. Beyond this he has a proper right to wish to avoid multiple litigation and the possibility of inconsistent decrees in reference to his conduct. See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 19 L. Ed. 2d 936, 88 S. Ct. 733 (1968).
Mrs. Kamhi doubtless has an interest in this litigation, such that we may wonder why she has not sought leave to intervene, since it is her judgment which the sequestration seeks to protect. Surely under the more flexible approach to Rule 19 decision-making now required, it is feasible to join her; while it may be that in her absence complete relief could be accorded among the parties, she does have an interest relating to the subject of the action and is so situated that disposition of the action in her absence may as a practical matter impair or impede her ability to protect that interest. Joining her would not defeat diversity, nor would it be impracticable to serve her. Under these circumstances we think that by the terms of Rule 19(a) the court was required to join her -- the rule says, "the court shall order that he be made a party."
This being so the court is required under Rule 19(b) "in equity and good conscience" to determine whether to proceed or to dismiss, since appellant has not seen fit, for what may be good reasons of his own, not to serve her, now that she has been "regarded as indispensable." In making this judgment, while the court below did not articulate the public interest factors, it seems to us they must be taken into account. Whether one calls it comity or something else, it would seem inappropriate for the federal court, absent jurisdiction over Mrs. Kamhi, to subject the sequester to inconsistent decrees. For a federal court to accept jurisdiction in a matter which in the words of Phillips, Nizer, supra, at least "verges" on the matrimonial, or where as here the receiver is a state court appointee and hence an arm of the state court, would require proof of substantial countervailing factors not shown to be present in this suit. The multiplicity of litigation here involved has evidently been caused by the husband's unwillingness to subject himself to the possible operation of New York State domestic relations laws in what he refers to as "the legal atmosphere" of New York State, an atmosphere we take it not altogether amicable toward husbands who leave New York wives for the more favorable climes of Nevada. But this is hardly grounds for the federal court to go out of its way to exercise its conceded jurisdiction, as a matter of policy -- what was referred to in Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 165, 6 L. Ed. 289 (1825), as "the policy of the court." The policy of our court will remain, the case being otherwise equal in equity, to keep our federal hands off actions which verge on the matrimonial, or impinge upon the matrimonial jurisdiction of the state courts. We believe, however, that appellant should be given an additional 30 days' leave to serve and file an amended complaint, naming Mrs. Kamhi as a party, after remand to the district court. We request the court below to grant such leave.
Judgment affirmed in accordance with opinion, costs to appellee.
Judgment affirmed in accordance with opinion, costs to appellee.