We have seen this case before. This is a qui tam action, one of forty-two such actions originally brought in the United States District Court for the District of Minnesota against a number of merchants who supplied Indian tribes with goods and services for the tribes’ gaming operations. See United States ex rel. Hall v. Tribal Development Corp.,
The present action, involving lease contracts for goods and services between the Menominee Tribe and the defendant, Tribal Development Corporation (“TDC”), was transferred to the United States District Court for the Eastern District of Wisconsin on May 17, 1993. On September 15 of the same year, the Wisconsin District Court, adopting the opinion of the Minnesota District Court in the parallel actions, dismissed plaintiffs’ case for lack of standing. We reversed, holding that “Congress has authorized these qui tam relators to act on behalf of and in the name of the United States, which means that they are able to invoke the standing of the United States for purposes of satisfying Article III.”
The district court did precisely that. In an Opinion and Order dated February 28, 1996, the court determined first, that the Tribe was a necessary party under Rule 19(a)(2)(i), next, that the Tribe could not be joined because it enjoyed sovereign immunity, and, finally, that the Tribe was an indispensable party whose absence necessitated dismissal of the action. See United States ex rel. Hall v. Tribal Development Corp.,
I.
An initial matter concerns the appropriate standard of review of the district court’s Rule 19 dismissal. Appellants argue for de novo review while TDC suggests that the time has come for us to align ourselves with those circuits that have adopted an abuse-of-discretion standard in the Rule 19 context. In Sokaogon Chippewa Community v. Wisconsin,
II.
Contrary to what the parties appear to believe, this case does not call upon us to resolve any supposed conflict between Rule 19 and the qui tam provisions, or to wrestle with the scope and wisdom of statutes born of a bygone era. (We will cite no nineteenth-century decisions here.) Rather, it calls for a straightforward application of Rule 19 to the particular facts of this case.
Rule 19 sets uр a bifurcated analysis. First, a court must determine whether an entity is a necessary party or, in the nomenclature of Rule 19, a “Person to be Joined if Feasible.” Fed.R.Civ.P. 19(a). Included in this category under subdivision (a)(2)(i)- is any person who “claims an interest relating to the subject of the action and is so situated that the disposition of the action in thе person’s absence may ... as a practical matter
Nevertheless, the plaintiff-relators object that “the tribe is not a necessary party as its interests are always represented by its trustee, the United States.” Although in some circumstances the interests of the United States and an absent tribe might be so aligned as to alleviate any concern for the tribe’s ability to protect its interest, this is not always the case. See Confederated Tribes v. Lujan,
A finding that a party is necessary does not end the Rule 19 inquiry, however. Under Rule 19(b), if the necessary party cannot be joined, the court must decide “whether in equity and good conscience the action should proceed among the parties before it, or should be dismissеd, the absent person being thus regarded as indispensable.” Significantly, subdivision (b) uses the, term “indispensable” only “in a conclusory sense; and not as the starting point of analysis.” 8A James Wm. Moore, Moore’s Federal Practice ¶ 19.07-2 (2d ed. 1996). In other words, the relevant question is “whether in equity and good conscience the action should proceed” without the absent party; “indispensable” is merely the label applied to the absent party in the event that the court should answer this question in the negative. To help courts navigate the path of equity and good conscience, Rule 19(b) lists four factors: (1) the extent to which “a judgment rendered in the person’s absence might be рrejudicial to the person or those already parties”; (2) the extent to which relief can be tailored to lessen or avoid prejudice; (8) the adequacy of a judgment rendered in the person’s absence; and (4) “whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.”
The first factor — prejudice to the Tribe — involves the same considerations we discussed in concluding that the Tribe is a necessary party under subdivision (a)(2)(i). In this respect, it is worth repeating the oft-quoted observation of the Ninth Circuit that “[n]o procedural principle is more deeply imbedded in the common law than that, in an action to set aside a lease or a contract, all parties who 'may be affected by the determination of the action are indispensable.” Lomayaktewa v. Hathaway,
In a larger sense, the precedent set by rescission of transactions freely entered by the tribes would likely be extremely prejudicial to the tribes’ long term interest in Indian gaming and the revenue it provides .... The message such a judgment would send to outside vendors would be that transactions with Indian gaming enterprises are subject to cancellation at any time and without regard to whether the contracts were freely and fairly negotiated, the extent to which the parties have performed their duties under the contracts or the settled exрectations and rebanee of the parties.... Regardless of whether such a judgment would otherwise constitute the correct application of the law, it would undeniably be prejudicial to the interests of the Indian tribes.
In re United States ex rel. Hall,
The second factor also cuts against the plaintiffs. We can see no way that we might shape relief to lessen the potential • prejudice to the Tribe, and, not surprisingly, neither party has suggested any. “There is no middle ground—either the transactions violate statutory requirements and are void, requiring payment of all value paid by the tribes, or they comply with the law and are valid.” In re United States ex rel. Hall, 825 F.Supp. at-1431.
The final two factors concededly militate against deeming the Tribe an indispensable party. The third factor compels us to ask whether a judgment rendered in the absence of the Tribe would be adequate. Unlike the question of prejudice under subdivision (a)(2)(i) and under the first factor of subdivision (b), this third factor, like subdivision (a)(1) of Rule 19,
Finally, the fourth factor, which looks to whether the plaintiff will have an alternative remedy, also weighs against dismissal. A plaintiff’s inability to seek relief, however, does not automatically preclude dismissal, particularly where that inability results from a tribe’s exercise of its right to sovereign immunity. See, e.g., Confederated Tribes,
At first glance, our conclusion suggests a dilemma: If Rule 19 prevents this suit, doesn’t it effectively nullify the qui tam рrovisions upon which plaintiffs rely? This would indeed be a troubling result, for it would be strange if the enforcement provisions of a statutory scheme could be completely undermined by the application of a rule of procedure. But we believe this conundrum is more apparent than real for the very reason that Rule 19, which refеrs a court to its sense of “equity and good conscience,” mandates a case-specific inquiry. “Rule 19(b) sets forth a standard, not a rigid rule.” Rhone-Poulenc Inc. v. International Ins. Co.,
In fact, a case upon which plaintiffs rely highlights the significance оf Rule 19’s flexibility. Plaintiffs point to Arrow v. Gambler’s Supply, Inc.,
We think not. The supposed contradiction arises only if one assumes that the facts of Arrow do not differ materially from the present case. Arrow, however, was not a parallel action. In Arrow, the Yankton Sioux hаd repudiated a management agreement with Gambler’s Supply and agreed to pay Gambler’s Supply a settlement of $1,420,000. Arrow, a member of the Tribe, then brought an action under 25 U.S.C. § 81 claiming that the management agreement and settlement were void for lack of government approval. Prior to trial, Gambler’s Supply settled with Arrow fоr $100,000 (to be divided as required between Arrow and the Tribe). After learning of the settlement, the Tribe made a Rule 19 motion for joinder. The district court barred the motion on the basis of laches.
Treating the Tribe’s Rule 19 motion as a motion to intervene pursuant to Rule 24, the Eighth Circuit affirmed. The court first ruled that the district court did not abuse its discretion in holding the Tribе’s motion untimely. It then went on to consider whether the Tribe would have been entitled to intervene as of right had its motion been timely. The Arrow court said no, finding that Arrow’s interests were “not only on the same side as the Tribe, but ... literally identical,”
There is one final matter that we must briefly address. For the first time on this appeal, plaintiffs suggest in their reply brief, almost as an aside, that the Tribe does not enjoy sovereign immunity as against the United States and that our analysis under Rule 19(b) is therefore beside the point. Not only is this a rather disingenuous argument coming from plaintiffs who have not availed themselves of the opportunity to join additional parties, see
The judgment of the district court is AfFIRMED.
Notes
. Under subdivision (a)(1), a person is necessary if "in the person's absence complete relief cannot be accorded among those already parties.”
. Rule 24(a)(2) provides as follows: “Upon timely application anyone shall be permitted to intervene in an aсtion ... when the applicant claims an interest relating to the property or transaction which is the subject 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.”