been great having you judge goldberg here from the united states court of international trade in new york city and judge you so it was from time to time we greatly appreciate your coming down and of the circuit to help us decide represent has been recognized as a narrow exception to the rule that the existence of subject matter jurisdiction is otherwise to be determined as of the date of the complaint it's an exception that the supreme court emphasizes to be exercised sparingly in rare case was unnecessary along and necessary or indispensable party on route nineteen the federal rules of civil procedure and when you look at that newman growing case that you're talking about the defendants in that case were found jointly and severally law just like the defendants in this case were found jointly and severally labile and the supreme kohak a farm the court of appeals dismissal o and i'll tell you exactly why this court in laker airways versus british airways which is a case that mr med relies on said me a quote for you a joint tortfeasor will be considered a necessary party when the absent party emerges as an active participant in the allegations made in the complaint that are critical to the disposition of the important issues in the litigation so there it is not dispositive that mr keefe lays in the ledge joint and several toward fees are certainly there are cases saying that against a joint several e liable party is not necessarily required is not necessarily indispensable but that's not the end of the inquiry it's a very fact specific one and one that this court so if for example in laker airways the court found that in fact although the defendant that the absent party would have been jointly and severally liable they were still indispensable and this court dismissed the relevant cause of action so it's  honest question presumed that under newman green if the court finds that mr keefe lay is dispensable that that's the end of the inquiry that the court will find that newman green for frames slightly differently and says even if it is dispensable even if the parties know the court still needs to then determine whether tactical advantages would be created in the favor of the remaining parties by the presence of that dispensable party and the court and that's an exceedingly rare circumstance that it would still exercise the right to dismiss the party so it's really two different standards under which the court can conclude that it was error to manage to do is question if the full was properly dismiss relief directed specifically at mr keefe late personally in the january to fifteen january two thousand and fifteen default judgment the district court ordered mr keefe personally to retract his the article in question and precluded him from publishing or writing anything on any website about mr ahmed at all that's gone that relief is completely unavailable now that mr release mr med is not a part of the it reinstated october two thousand and sixteen default judgment says nothing about injunctive relief it only applies monetary relief to ethiopian reviewing this court's decision in focus on the families dispositive on that this court said that where there is a absent party there was the transit authorities contractor who actually had the power to put up the advertisements on the bus stops and that was what was sought by the plaintiff was they wanted these bus stop ads run the contractor was absent and they said  the transit authority doesn't have the power to run the ads so the plaintiff cannot obtain the relief it sought without the contractor it's an indispensable party and we're going to dismiss course all of this could have been avoided if the books in this case are just going o absolute right to ignore a case that is filed with a lack of jurisdiction and collaterally attack it later which is exactly what happened here and by the way your honor the the defendant that did appear mr keefe lay it to the point of it all could have been can't read into the mind of mr met the objective evidence says that at in mr key plays very first pleading he raised subject matter jurisdiction as a defense and not only did mr med not recognize the  instead re characterize it as a non for non convenience argument in his response a brief effectively sweeping it under the rug so that none of the lawyers in the room the most one of the largest and most sophisticated law firms in the world representing mr med did not recognize what the non lawyer pointed out immediately was that there was no subject matter jurisdiction and human green's exception the could the cases in which the it's applied are ones in which we have no one having raised it until for example on appeal and there it already been a full trial on the merits that's the exact opposite of the case we have here well you know when i look at rule twenty one and rule nineteen  discretion in the district judge in determining whether or not a party is indispensable whether the opposing party is going to be prejudiced whether the opposing party has a tactical advantage and there seems to be some disagreement about what our standard of review is which i mean just speaking for myself might determine the outcome of the appeal do we have a noble standard or a view or an abuse of discretion standard of review are we reviewing all subject matter jurisdiction to what our standard of review out of i'm a little confused from the court's case law as well your honor but i will tell you two things for certain number one in payroll management versus lexington insurance just in two thousand and sixteen this court considered a very very similar factor in the only difference was that the absent party that was to be dismissed as indispensable was the plaintiff and the court applied expressly adin novo standard of review based on on the question of subject matter jurisdiction that's number one number two  of discretion standard i think the distinction is here where you have you when we're in the newman green world we're not just considering rule nineteen we're considering applying a narrow exception to a subject matter jurisdiction question now we're talking about a pure issue of law the one case the name of which is escaping me from mr med's brief there the at that the posture in which the quote the issue had been raised was one where in fact the defendant or season whichever party was trying to get rid of the of the absent party did not raise it until after judgment to be at been entered in a motion for reconsideration or a motion for clarification and under that posture i could see this court saying well that's a kind of a classic discretionary situation where how do you respond to three cases we have united states or by bond anonyma how do you feel about those cases what i would say is that you believe binding on the court is is payroll management versus lexington and ingram versus a s x and i would also say that under abuse of discretion standard we still believe we prevail that the district court erred in applying the discretionary standard of rule nineteen for all the reasons i've articulated for example so laker airways is a good example judge so if you're saying liquor airways if that appl an abuse of discretion standard the court found the party indispensable and dismissed the cause of action because of the injunctive relief issue so we absolutely can still prevail and should prevail we believe under abuse of discretion standard just like in like  to another point that i'll raise and that that sets us apart from the classic newman green case and and also ways in our favor under the rule nineteen framework separate and apart from the injunctive relief issue is that the the the obvious inference that the court can draw from the record that the only reason we're still standing here is because mr madden tends to try and force this judgment against mr keefer personally he tends to have it both ways by saying in his red brief that mr key plays quote the same who pays the damages everything remains the same we have a dissolved entity that holds the that the judgement is against the will have no assets to be able to satisfy the judgment given the opportunity to explain that he will not be trying to seek is just as you stated it's an abuse of discretion standard the when dick c v dolan core case articulated a standard of review that was abuse of discretion i have another eleven circuit case from twenty fifteen we did not cite these in our papers but i did bring copies for the court today it's the lions v o'quinn case which is six zero seven fed appendix nine thirty one it's a two thousand and fifteen eleventh circuit case also applying abuse of discretion the issue under review is whether it was appropriate for the district court to strike the non diverse party mr carefully and to maintain the judgment against the ethiopian reviewing that's clearly an abuse of discretion standard under the existing party because you can satisfy your full cause of action against the diverse party which isn't in this case the ethiopian review ank work as a basis to interchangeable that's one of the issues judge made a finding of factual finding that the ethiopian review was the vehicle by which the website was funded and operated and he relied on several different sources of information for that one of the sources was quickly had made inconsistent statements related to what the purpose of the ethiopian review was on the one hand he had said it was not a five hundred one c three charitable organization on the other hand he had suggested it was for families of imprisoned ethiopian journalists and then the court relied upon a document that's in the record its appendix volume three tab one forty seven i have it right here this was an admission right on the website that said that the ethiopian it invited readers to sponsor it for the purpose of providing funding for information units inside ethiopia for maximizing the websites technical capacity to make it faster and fight off hacking and to defend them against i'm paraphrasing lawsuits against the ethiopian review at the bottom it noted that people should send their contributions to ethiopia review ank the court said that this was an admission by carefully and by the ethiopian review that indeed it was involved in the operation and funding of the website further when ordered to put the retraction up on the defendant ethiopian review inks website mr kipling never told the court oh sorry that doesn't control the web site went ahead and complied and put it up on the on the website further mr kipling never did explain the source of funds and where they went with respect to mr to the ethiopian reviewing finally the court relied upon the well pled facts in the complaint which were taken as true under the default judgment against both ethiopian review and against mr carefully if you look at paragraph seven of the complaint document one  appendix one volume one you'll see there that there is a factual allegation that that the ethiopian reviewing was the same thing as the ethiopian review website turning to the criteria for rule nineteen because that is the criteria that has to be looked at under rule nineteen a and it asks whether or not in that person's absence the court can afford complete relief among the existing the award is and the injunctive relief that was asked for is now moot the court ordered that a retraction be put up on the ethiopian review in website for three weeks and that was done with respect to the second additional criteria under rule nineteen a it asks the court does a person claim an interest relating to the subject of the action and has it so situated that disposing of the action in the pretties person's absence may as a practical matter impair or impede the person's ability to protect the interests the answer that is no mr carefully is now dismissed from the case that he doesn't have any ongoing interest and under joint several liability principles the ethiopian review inc is liable for the defam statements themselves it further asks whether it leaves an existing party subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations because of an interest the existing parties left in the case are mr  the ethiopian review and there are no inconsistent geishas with respect to them i would direct the court also to the united states supreme court case temple b synthesis which was a joint several liability case in which a  patient was harmed by a medical device put in the back of the patient and chose only to sue the medical device company the medical device company made a motion to say well you had your missing indispensable you're missing the doctor who put it in your back and you're missing the hospital where it was done and the court in that case said no there's joint several liability and the court in the temple the synthesis case said it has long been the rule that it is not necessary for all joint tortfeasor is to be named as defendants in a single lawsuit further in the law and be o'quinn case which i cited for the abuse of discretion standard in that case again the district court failed to dismiss a non diverse party and under an abuse of discretion standard the eleventh circuit found it was improper not to have dismissed the non diverse party in a tort case involving a fatal car accident where the pla sued the a state of the driver as well as the employer of the driver in that case the eleventh circuit said there is a binding as a quote binding bright line rule which militates against taking a pragmatic approach in a case  by counsel related that there's never been an ounce of discovery in this case the remedy that's been awarded to the to mr a mad is a verdict against a monetary judgment against ethiopian review inc and he has the right to go try to execute that judgment against the ethiopian review inc honor i i i'm not prepared to make a concession on that today because i think it is premature to do that we haven't had any of these not reported and i understand that and it may be that that's where we'll end up at the end of the day on that but with respect to the ethiopian review and just because it was intentionally dissolved by mr kipling at some point in time after the lawsuit was filed and there's no evidence about whether or not it has assets or not there's been no discovery on that point so if a execution they want to get discovery and find out if it in fact has assets or not i think they're entitled i think mr mudd is entitled to go after the ethiopian review and find out whatever assets it has and try to collect its judgment that way there should be no  premature pinning down of any options that are given to mr mudd he was deeply injured by the to family tory statements in this case the defamation in this case was accusing him of a heinous crime of human trafficking the article published on march twenty ninth two thousand and twelve on the ethiopian review website said that mr ahmad was in charge of a massive human trafficking that's a quote of under age teenage girls from ethiopia and putting them in slave like conditions in saudi arabia he is a global businessman he came to trial he testified at a daylong damages trial about the harm to his reputation from that as a global business man and that a huge number of sharing some of this article out into the website and onto google when you google this man's name is that wrong that's right your honor said come sunni and they can contemptuous conduct the failure to adhere to the court's rules of civil procedure the court's own orders in this case has been ramped it the magi record judge jones was an excellent judge and he did his level best to be fair to the parties all along the way as a pro se party  the appellants were given numerous opportunities to comply the magistrate judge schofield even drafted his own protective order to allow whatever information needed to be provided in discovery to be done in a confidential manner and still there was a refusal to do that and it would lead over a course of more than two years to the entry of a default judgment against mr carefully and later on in two thousand and fifteen in january after a trial in damages and after  there's no prejudice factor one asks whether or not a person's absence might prejudice that person or the existing parties there's no prejudice mr kifle has been dismissed and the ethiopian review is only liable for its own joint several liability the second factor the extent to which any prejudice could be lessened or avoided the judge has issued indicative rulings to indicate that he'll limit the liability to the joint several liability of the theo p review for the defamatory statements and not for the misconduct of mr kifle mr carefully excuse me the third factor whether judgment in the presence or absence would be adequate i already covered that in a context rule nine hundred a whether the plaintiff would have an adequate remedy if there was a case were dismissed for nine join there would be no longer any remedy for mr moggs in terms of the prejudice in the tactical advantage there was never as i said earlier an alice of discovery given in this case and no tactical advantage was obtained by having mr carefully in the case in fact maybe it was a disadvantage frankly at the end of the day and as judge jones found in his opinion the pragmatic considerations actually favor the the appellee mr amount as well those pragmatic considerations are this consideration of finale judicial efficiency and economy and he he quoted the caterpillar case and others u s supreme court and said that was overwhelming in this case it took three years to get to that  in the last minute i have had like to also address the standing issue there was a question that the eleventh circuit raised itself related to standing and i would just add at the end i think under the under the rules mr carefully has no standing to appeal in this case he had any interest that remained that he wanted to assert on appeal since he was a dismissed party he should have done it through a motion to intervene in the appeal standing in a case at the original stage of a filing  different than standing on appeal and once he was stricken from the case as a party and as i've demonstrated through my articulation of the standards and roll one thousand and be has no remaining interest in the case and therefore if he had any interest that he wanted to raise on appeal he should have raised it through the form of a motion to intervene in conclusion judge jones the district court judge did an excellent job he applied all the criteria in the rule he did not abuse his discretion in making the factual dismissal that you appeals and of course the therefore would have standing just like a plaintiff would have standing to to appeal is is claim being dismissed is the very question at the heart of the of the issue of the case which is whether he in fact should have been dismissed and he's the one that has standing to appeal that and right miller called the argument to the contrary spurious there is no case on the force here that would say that he doesn't have standing payroll management the case that the court cited in its own jurisdictional question consider the appeal of all the parties including the the disk but finally i don't think this is the the the resolution that question much matters because there's no arguments here that mr keefe lays dancing that ethiopian review is and also advancing so we would reach the same result to be not just two to dress once more you you're concerned about newman green and joint and several liability i think your court will find that the case is relying on human green explained that newman green did not make a bright line rule was merely saying that you're not necessarily indispensable if you're enjoying several toward fees or otherwise this court's holding in laker airways could not stand and the cases that quintessential join several tortfeasor is who are who are dispensable are ones that don't have key issues regarding injunctive relief like this case like the focus on the family family and laker airways cases and don't have issues of obvious alter ego remedy questions down the road so we're not in the same world as the the newman green get joint guarantors of a note i think with respect to the tactical advantage that newman green instructs the court to consider it's a counterfactual inquiry what would have happened if mr keefe lay had never been a party to this case is mr imad better off because mr chiefly was a party and he's just admitted to ways that in fact he believes he's better off number one is the to in order to try and dodge the injunctive relief issue he says well it's moot because i already got it i'm better off because mr keefer was a part he can't have it both ways either it either is a necessary party because he still needs the injunctive relief or he got a tactical advantage because he already got the inject and you heard spend time talking about the the which was the confirmation of conduct by mr keefer below mr keefe lay would never been a party that's a tactical advantage they're relying on this been two pages in their brief complaining about the resources spent on the time spent because they outed him as a party wrongly and wouldn't listen when he said there was no subject matter jurisdiction another tactically to judge goldberg question about the factual dispute in the record i want to emphasize that that's an independent grounds for reversal even if that's affirmed we still believe win the web page itself is not sufficient to demonstrate that the route that ethiopian reviewing and the website are one in the same that at most it says that in one instance it offered to raise money for the website that couldn't with t support a judgment for defamation it would therefore make mr key flay necessary and indispensable to case because every nobody else thank you counsel thank your hon and the next case on the docket is andrews versus auto