MEMORANDUM OPINION
Plаintiff Burger King Corporation (“Burger King”), a Florida corporation with its principal place of business in Florida, has brought this action seeking a declaration of its rights and obligations under its lease-by-assignment of certain premises located at 3029 North Broadway, Chicago, Illinois (“Premises”) and owned by defendant American National Bank and Trust Company of Chicago (“American”), an Illinois State banking corporation with its principal place of business in Chicago, Illinois. American hаs moved to dismiss the complaint pursuant to Rules 12(b) and 19 of the Federal Rules of Civil Procedure, on the grounds that Dr. Chandulal Patel (“Patel”), Burger King’s franchisee and subtenant at the Premises, is an indispensable party plaintiff in this action whose joinder is not feasible because, being a citizen of Illinois, his joinder would defeat the diversity jurisdiction of this court. For the reasons set forth below, the motion to dismiss is granted.
FACTS
The facts in this case are not complex. On November 9, 1972, American leased the Premises to Chart House, Inc. (“Chart House”). The lease (the “Prime Lease”) included a clause providing that:
Tenant may not assign this Lease or sublet all or portions of the Leased*674 Premises without Landlord’s consent. Such consent will not be unreasonably withheld provided the use by the new occupant shall not conflict with the Lease entered into by and between landlord and the other Tenant occupying the space on the land described in Exhibit “A” attached hereto, suсh Lease being a Lease having been executed at the time of this Lease and any Lease executed prior to any assignment or sublet under this paragraph. But in no event would a prospective Tenant be restricted from use of the Premises as now permitted by this Lease.
Prior to 1983, Chart House, Inc. sublet the Premises to an unnamed third party. In 1983, this subtenant assigned his sublease (the “Sublease”) to Patel, who remained as subtenant when, in October, 1985, Chart House, with American’s consent, аssigned the Prime Lease to Burger King as part of Burger King’s acquisition of Chart House.
Early in 1987, Patel informed Burger King that he wished to assign the Sublease to David J. Breitbach, Lillian A. Breitbach, and Robert J. Devereaux (“Proposed Subtenants”). On April 16, 1987, Burger King wrote to American for its consent to Patel’s proposed assignment of the Sublease. On May 18, Burger King, at American’s request, provided American with financial and business information relating to the Proposed Subtenants. .
On June 16, 1987, American informed Burger King that it would not сonsent to the proposed assignment of the Sublease. Shortly thereafter, Burger King instituted this action against American for a declaration of its rights and obligations under the Prime Lease. Burger King asked this court to declare either: that Burger King is not required to obtain American’s consent to Patel’s assignment of the Sublease to Proposed Subtenants; or, that American has unreasonably withheld its consent to such proposed assignment.
On September 18, 1987, after receiving the cоmplaint, Lessor sent Burger King a notice of default (“Notice of Default”) claiming that Burger King has violated the Prime Lease in two distinct ways: First, by subleasing the Premises without American’s consent; second, by allowing the Premises to be maintained in violation of the Building Code of the City of Chicago and in non-compliance with other “laws, requirements and regulations,” including American’s mortgage agreement.
Burger King has since filed an amended complaint (“First Amended Complaint”), adding Counts II and III, which seek, respectively, a declaration that Burger King is not in default by virtue of Patel’s Sublease and a declaration that Burger King is not in default by virtue of the conditions of the Premises.
American has now moved to dismiss the First Amended Complaint on the grounds that Patel is a Rule 19 indispensable party to this lawsuit whose joinder is not feasible because joining him would destroy this court’s diversity jurisdiction over the subject matter of the dispute. Burger King insists that the omission of Patel from this lawsuit does not justify dismissal because he is not аn indispensable party; indeed, Burger King maintains that Patel is not even a Rule 19(a) whose joinder would be required “if feasible.”
DISCUSSION
Rule 19 sets forth “a two-step inquiry for determining when it is proper to dismiss an action for inability to obtain jurisdiction over an individual with an interest in the litigation.” Hansen v. Peoples Bank of Bloomington,
If a court determines that an absent person satisfies the Rule 19(a) criteria, he must be joined if his joinder is feasible. Only if joinder is not possible—i.e., the court lacks personal jurisdiction over him or joining him would destroy the court’s subject matter jurisdiction—does Rule 19(b) come into play. 7 Wright, Miller & Kane, Federal Practice and Procedure: Civil § 1607 at 84.
Rule 19(b) sets forth a four-factor test for determining whether a Rule 19(a) necessary party is so “indispensable” to the litigation that the court cannot “in equity and good cоnscience,” proceed in his absence. See generally Provident Tradesmens Bank & Trust v. Patterson,
Rule 19(a)
Rule 19(a) provides in pertinent part that: 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 ... (2) the person claims an interest relating to the subject matter of the аction 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____
American claims that Patel has an interest in this action by virtue of his sublease, that this interest may, as a practical matter, be impaired by the instant lawsuit and that, accordingly, Patel is a necessary party here.
Burger King argues, however, that American misconstrues the nature оf the “interest” contemplated by Rule 19(a). It points out that, under Illinois law, a subtenant has no right vis-a-vis a prime lessor by virtue of his sublease. See Swap Shop, Inc. v. M & R Amusement Corp.,
The defect in Burger King’s argument lies not in Burger King’s “narrow” construction of the interest requirement, for the non-party’s interest must indeed be “legally protected” to be cognizable under Rule 19(a). 3A Moore’s Federal Practice ¶ 19.07[2] at 19-99 (“The ‘interest relating to the subject matter of the action,’ that makes an absent party a party needed for just adjudication must be a legally protected interest, and not merely a financial interest or interest of convenience.”). Rather, Burger King errs because it misreads the “subject matter of the action” requirement.
Despite the plethora of Rule 19(a) cases, there is a striking paucity of analysis focusing on the “subject matter” prong of the “interest relating to the subject matter of the action” requirement. In most cases this poses no problem: If the absent party has a legally protected interest in the subject matter of the action—i.e., he is a party to a contract at issue—he falls squarely within the terms of Rule 19(a)(2). See, e.g., Naartex Consulting Corp. v. Watt,
In a small number of cases, however, a determination of whether a party has a sufficient interest in the action to require his joinder if feasible is more difficult. These cases involve absent persons with legally protected interests which could be affected by the lawsuit, but who have no legal rights vis-a-vis their adversaries in the action. Are these interests sufficiently “related to the subject matter of the action” so as to bring them within Rule 19(a)(2)?
Courts generally have avoided coming to grips with the Rule 19(a)(2) problem by either assuming arguendo that the absent person is necessary and moving directly to the “indispensability” test, or by disposing of the Rule 19(a) inquiry under another aspect of the subsection. See, e.g., Northrup Corp. v. McDonnell Douglas Corp., 705 F.2d 1030, 1044 (9th Cir.1983) (government was not a party to be joined if feasible in action between two private parties despite its rights to data at issue in the action because its failure to seek intervention in the case evidences that it did not fear impairment of its rights); Helzberg’s v. Valley West Des Moines,
A close reading of Rule 19(a) indicates that the answer lies not in the “interest” prong of the requirement, but rather in the largely overlooked “subject matter of the action” prong. The rule does not state that the absent party must have an interest in the action; instead, it requires only that he have an interest “relating to the subject matter of the action.” Rule 19(a)(2). Thus, where ownership or possessory interests in real estate {e.g., Naartex Consulting Corp. v. Watt,
In this case, Patel clearly has legally protected interests—his rights under the Sublease—relating to the subject matter of the dispute—the Premises. See 8930 South Harlem, Ltd. v. Moore, 77 Ill.2d 212,
This finding does not quite end the Rule 19(a) inquiry, however. Having determined that the absent party has an interest relating to the subject matter of this action, the court must then determine whether “the disposition of the action in [his] absence may as a practical matter impair or impede [his] ability to protect that interest.” Rule 19(a)(2)(i); Hansen v. Peoples Bank of Bloomington,
Patel’s ability to protect his interests obviously could be severely impaired by this lawsuit. If Burger King loses on Count I, Patel will be prohibited from assigning his sublease. See Moran v. Commonwealth Edison Co.,
Despite these risks, Burger King argues that disposition of this lawsuit in Patel’s absence does not “as a practical matter” endanger Patel’s interests, for two reasons: First, because Burger King will adequately represent Patel’s interests in the action; second, because Patel has chosen not to intervene.
The caselaw makes clear that the potentially prejudicial effect on an absent party will “not of itself require his joinder if his interests are fully represented by parties present.”
In this case, the interests of Burger King and Patel simply are not identical. To be sure, both seek determinations that they have not violated the provisions of the Leаse, and that the Lease provides for assignment of subleases. But Patel, as the subtenant-in-possession, stands at greater risk than Burger King; for if the court finds the Premises to be in violation of the Lease or the law, Patel may be liable for damages to Burger King. Furthermore, if Burger King loses on the assignability of the sublease issue, Patel will be forever prevented from assigning the Sublease, while Burger King will retain the option of terminating the Sublease and then re-subletting the Premises. Accordingly, the similarity of intеrest between Burger King and Patel does not suffice to remove the necessity for joining Patel if feasible here.
2. Opportunity to Intervene
Courts frequently consider the refusal of an absent party to seek intervention as a factor mitigating against the necessity of joining him pursuant to Rule 19(a). 3A Moore’s Federal Practice ¶ 19.07[2.1] at 19-104—19-106. They reason that an absent person’s decision to forego intervention indicates that he does not deem his own interests substantially threatened by the litigation; and if he does not, the court should not, absent special circumstances, second-guess this decision. E.g., Northrup Corp. v. McDonnell Douglas Corp.,
Whatever the merits of this reasoning when joinder would not threaten the court’s diversity jurisdiction, it simply does not apply when joining the party would destroy absolute diversity between plaintiffs and defendants.
The explanation for the distinction lies in the somewhat anomolous rules pertaining to intervention. Under Rule 24(a), a Rule 19(a) “necessary” party has the right to intervene in an action. See 3A Moore’s Federal Practice 1119.01-1[5.6] at 19-34. Where his intervention would destroy absolute diversity, the federal court may exercise its ancillary jurisdiction and permit him to intervene; provided that he is not an indispensable party as defined by Rule 19(b). 7 Wright, Miller & Kane, Fed
The upshot of these rules is that an absent person who has a substantial intеrest in a lawsuit and who wishes to keep that lawsuit in federal court will refrain from seeking intervention, not because his interests in the suit are de minimis or are adequately represented by the parties to the lawsuit, but instead because he fears that demonstrating the degree of his interest in the lawsuit would ensure its dismissal.
In other words, Patel’s failure to seek to intervene in this action between Burger King and American would provide evidence of his lack of interest in the dispute, or confidence in the representation to be provided by Burger King, only were his intervention possible without defeating diversity. Since it is not, his decision to forego intervention may well mean that he feels compelled by other considerations—i.e., his status vis-a-vis his lessor—to allow this case to go forward without him in federal court. But that choice, however well reasoned, is not relevant to his status under rule 19(a) (or, for that matter, Rule 19(b)). See Gottleib v. Vaicek,
Rule 19(b)
Rule 19(b) provides:
Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(l)-2 hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the party bеing thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provision in the judgment, by the shaping of relief or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whethеr the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
The four factor analysis mandated by Rule 19(b) thus overlaps to a large extent with that required by Rule 19(a). However, unlike Rule 19(a), Rule 19(b) provides for a pragmatic weighing of the relevant factors. Provident Tradesmens Bank & Trust v. Patterson,
Having found that Patel is а necessary party here, this court has already determined that the first Rule 19(b) factor—the counterpart to Rule 19(a)(2)(i)—weighs in favor of dismissing the case. See 3A Moore’s Federal Practice II 19.072[1] at 19-133. At the same time, the third Rule 19(b) factor is not relevant to the indispensability determination here. See id. at 19.-07-2[3] at 19-147 (third rule 19(b) factor implicates interests similar to those of Rule 19(a)(1)). Thus, the important factors for determining whether, despite the absence of Patel, “equity and good conscience” call
The second factor requires the court to consider whether it could shape its ultimate ruling so as to mitigate its effect on the absent party. Hansen v. Peoples Bank of Bloomington,
Nor does the fourth. This factor instructs the court to consider whether “there is an adequate forum to determine the interests of the parties if the suit is dismissed from federal court.” Scoggins v. Fredrick,
Accordingly, this court concludes that Patel is both а Rule 19(a) party to be joined if feasible and a Rule 19(b) indispensable party. The case cannot proceed without him in federal court. Since his joinder would destroy diversity, the case must be dismissed.
CONCLUSION
American’s motion to dismiss the case under Rule 12(b)(7) and Rule 19(b) is granted.
Notes
. Although the term "necessary” parties has been omitted from the Federal Rules "to emphasize that the real purpose of this rule is to bring before the court all persons whose joinder would be desirable for just adjudiсation,” 7 Wright, Miller & Kane, Federal and Procedure: Civil § 1604 at 36-37, courts still generally employ the term to refer to parties who satisfy the criteria of Rule 19(a) persons "to be joined if feasible.”
. The rule that a transferee is a necessary party in an action for wrongful transfer of property against the transferor "if the relief sought requires a return of the property or otherwise affects the transferee’s property interest,” 3A Moore's Federal Practice ¶ 19.09[5], p. 19—186— 88, but not if the action is one for damages, id., supports this reasoning. In both sets of сases the transferee has an “interest relating to the subject matter of the action,” but only in the former does he meet the requirement of Rule 19(a)(2)(i) that he be so situated that the disposition of the action in his absence "may as a practical matter impair or impede [his] ability to protect that interest.”
. Although this court does not agree with Burger King’s argument that a person must be a Rule 17 "real-party-in-interest” in order to qualify as a Rule 19(a) party to be joined if feasible, see NLRB v. Doug Neal Management Co.,
. The interplay of federal and state law in joinder cаses has been settled for some time:
[I]n diversity suits, state law clearly determines the nature of an individual’s interest in a particular controversy or in the subject matter of a dispute. The federal rules and the precedents construing them govern whether the absentee’s particular interest, as defined by state law, should be treated as making his joinder desirable or imperative in an action in federal court.
7A Wright, Miller & Kane, Federal Practice and Procedure: Civil § 1603 at 31; Provident Tradesmens Bank & Trust v. Patterson,
. Where the potential harm to the absent person is only one of the grounds for seeking a Rule 19(a) determination—i.e., where there is also the risk that, "in the person’s absence, complete relief cannot be accorded among those already parties,” Rule 19(a)(1), or the person’s absence may "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,” Rule 19(a)(2)(H)—the fact that one of the parties may fully represent the absent person’s interest will not remove the latter's Rule 19(a) status. E.g., Gottlieb v. Vaicek,
American briefly argues that Rule 19(a)(1) also makes Patel a party to be joined if feasible, since it might have to bring a separate action to evict Patel if it succeeds against Burger King. Thus, it argues, the adequacy of Burger King's representation of Patel is irrelevant to the Rule 19(a) inquiry. This argument is frivolous.
It is beyond cavil that "complete relief refers to relief as between the persons already parties, and not as between a party and the absent person whose joinder is sought.” 3A Moore's Federal Practice ¶ 19.07—1[1] at 19-96; 7 Wright, Miller & Kane, Federal Practice and Procedure: Civil § 1604 at 42-43. Accordingly, the potential need for future litigation between American and Patel is not relevant to deciding whether Patel is a party to be joined if feasible under Rule 19(a).