Delaware joinder and intervention: a joined party who objects to venue gets dismissed

Delaware's joinder rule carries a sentence that the federal rule does not, and it can undo a joinder entirely:

If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action.

Not transferred. Dismissed. And the choice belongs to the joined party, who has only to object.

Who must be joined

Del. Super. Ct. Civ. R. 19(a):

Persons to be joined if feasible. A person who is subject to service of process and whose joinder will not deprive the Court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.

Two threshold conditions apply first: the person must be subject to service of process, and joining them must not deprive the Court of subject matter jurisdiction.

If such a person has not been joined, "the Court shall order that the person be made a party". Someone who should join as a plaintiff but refuses "may be made a defendant, or, in a proper case, an involuntary plaintiff."

Then comes the venue provision. A party dragged in who does not want to be there, and whose presence would misplace the case, can simply object and leave.

When they cannot be joined

Rule 19(b) asks whether the case can go on without them, "in equity and good conscience", with the absent person "being thus regarded as indispensable" if it cannot. The rule lists four factors:

The second factor is the one to build an argument on. It invites the Court to fix the problem rather than dismiss, and it is where protective language in the judgment gets proposed.

You have to name the ones you left out

Rule 19(c):

Pleading reasons for nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a)(1)-(2) hereof who are not joined, and the reasons why they are not joined.

This is an affirmative pleading duty, and it is easy to overlook. If you know of someone who fits Rule 19(a) and have not joined them, the pleading must name them and say why.

Failure to join a party under Rule 19 is also one of the seven defenses that may be raised by motion, and one of three that survive almost to the end of the case. See the Delaware motion to dismiss.

Intervening

Rule 24(a) grants intervention of right on timely application:

(1) When a statute confers an unconditional right to intervene; or (2) when an applicant claims an interest relating to the property or transaction which is the subject matter of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

The "adequately represented" clause is the usual battleground. An interest aligned with an existing party's is presumptively covered by that party's participation.

Rule 24(b) allows permissive intervention on a conditional statutory right, or where "an applicant's claim or defense and the main action have a question of law or fact in common."

It adds a provision for government: where a party relies on a statute or executive order administered by a state officer or agency, or on a regulation, order, requirement or agreement made under one, that officer or agency may be permitted to intervene on timely application.

On permissive intervention the Court "shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of existing parties."

Rule 24(c) sets the mechanics, and the second requirement is the one people forget:

A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.

A motion alone is not enough. It must come with the pleading you intend to file — and that applies equally "when a statute gives a right to intervene."

Timeliness governs both routes: each subdivision begins "Upon timely application."

Who may sue, and in whose name

Rule 17(a) requires every action to be "prosecuted in the name of the real party in interest", while listing those who may sue in their own name without joining the beneficiary — "An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute."

It then supplies a cure that prevents the point being a trap:

No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

That last clause matters where a limitations period has run in the meantime. The cure relates back to commencement.

Infants and incompetent persons

Rule 17(c) allows a representative — "a general guardian, trustee, committee, conservator, or other like fiduciary" — to sue or defend on behalf of an infant or incompetent person. Someone without a duly appointed representative "may sue by a next friend or by a guardian ad litem."

And the Court's duty is mandatory: it "shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person."

Related protections appear elsewhere: no default judgment may be entered against an infant or incompetent person unless represented — see setting aside a Delaware default judgment.

Where this connects

For bringing in a party you say is liable to you, see Delaware counterclaims and third-party claims — Rule 13(h) routes joinder on a counterclaim or cross-claim through Rules 19 and 20.

If a party dies, becomes incompetent or transfers their interest mid-case, the mechanism is different again. See substitution of parties in Delaware.

For class treatment rather than joinder, see Delaware class actions — Rule 23(a)(1) requires that joinder of all members be impracticable.

How Delaware compares

A short checklist

1. Name anyone who fits Rule 19(a) but is not joined, and say why, in the pleading itself.
2. If you are joined and venue would be wrong, object. The rule says you shall be dismissed.
3. On a Rule 19(b) argument, lead with the second factor — how prejudice can be lessened rather than whether it exists.
4. Move to intervene promptly. Both routes require a timely application.
5. Attach your proposed pleading to the motion. A motion alone does not comply.
6. Expect "adequately represented" to be the fight on intervention of right.
7. A real-party-in-interest objection is curable — ask for reasonable time to ratify, join or substitute.
8. Check whether a guardian ad litem is needed. The Court's duty to appoint is mandatory.

Where these rules live

• Del. Super. Ct. Civ. R. 19 — Joinder of persons needed for just adjudication
• Del. Super. Ct. Civ. R. 24 — Intervention
• Del. Super. Ct. Civ. R. 17 — Parties plaintiff and defendant; capacity
• Del. Super. Ct. Civ. R. 13 — Counterclaim and cross-claim

This page explains what the rules say. It isn't legal advice.