PUBLISH

UNITED STATES COURT OF APPEALS

Filed 8/26/96TENTH CIRCUIT

MAX LEE RISHELL, Curator of the

person and estate of Kathleen Lacey,

an incapacitated person,

Plaintiff-Appellant,

and

MARRIOTT CORPORATION, as Plan

Fiduciary of the Marriott Corporation

Multi-Med Health Plan,

Plaintiff-Intervenor,

v.

JANE PHILLIPS EPISCOPAL

MEMORIAL MEDICAL CENTER;

JANE PHILLIPS EPISCOPAL

HOSPITAL, INC., formerly Jane G.

Phillips Memorial Hospital, Inc.,

doing business as Oklahoma Medical

Collection Services; CHARLES

WELLSHEAR, M.D.,

Defendants-Appellees.

No. 95-5034

Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. 94-C-636-B)

Larry Alan Tawwater (Ben T. Lampkin and Jo L. Slama, with him on the brief),
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of Lampkin, McCaffrey & Tawwater, Oklahoma City, Oklahoma, for PlaintiffAppellant.

Inona Jane Harness (Haven Tobias, with her on the briefs), of Pierce, Couch,

Hendrickson, Baysinger & Green, Oklahoma City, Oklahoma, for DefendantAppellee Charles Wellshear, M.D.

Stephen J. Rodolf (Barry L. Smith and Leslie C. Weeks, with him on the briefs),

of Barkley & Rodolf, Tulsa, Oklahoma, for Defendant-Appellee Jane Phillips

Episcopal Hospital.

Before SEYMOUR, Chief Judge, PORFILIO, and TACHA, Circuit Judges.

SEYMOUR, Chief Judge.
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This case is before us a second time for review of a pretrial ruling. In the

previous appeal, we reversed the district court’s determination that diversity

jurisdiction was lacking and remanded for further proceedings on the

jurisdictional issue. Rishell v. Jane Phillips Episcopal Memorial Medical Ctr., 12

F.3d 171 (10th Cir. 1993). On remand the district court overruled defendants’

motion to dismiss for lack of diversity jurisdiction, but dismissed the action under

Fed. R. Civ. P. 19 for failure to join indispensable parties. Plaintiff again appeals

and we reverse.

I

Plaintiff Max Lee Rishell is the curator of the person and estate of Kathleen

Lacey. Mrs Lacey exists in a permanent vegetative state as a result of her failed

attempt to commit suicide while she was hospitalized in defendant institution and

under the care of defendant Dr. Charles Wellshear. Mr. Rishell brought this

negligence action to recover damages resulting from Mrs. Lacey’s injuries.

This case has already had a tortuous procedural history. It was originally

filed in the Western District of Oklahoma. After that court dismissed for lack of

diversity jurisdiction, Mr. Rishell filed this appeal and, together with Mrs.

Lacey’s husband and children, also filed an action in state court to prevent

perceived statute-of-limitations problems. Defendants filed a motion with this

court to dismiss the appeal, arguing for the first time that Mrs. Lacey’s husband
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and children are indispensable parties whose joinder would destroy diversity

jurisdiction. We summarily denied the motion and directed the parties to proceed

with the oral argument scheduled some ten days later. After we reversed and

remanded, defendants moved in district court to dismiss for failure to join

indispensable parties. While this motion was pending, the court transferred the

action to the Northern District of Oklahoma, which granted the motion. 

In this appeal, Mr. Rishell contends that this court’s order denying

defendants’ motion to dismiss for lack of indispensable parties constitutes the law

of the case, and that the district court therefore had no authority to consider the

merits of that issue. Mr. Rishell argues in the alternative that Mrs. Lacey’s

husband and children are not indispensable parties and that the lower court abused

its discretion in holding to the contrary. We conclude that the doctrine of the law

of the case does not apply in the circumstances here. We further hold, however,

that Mrs. Lacey’s husband and children are not indispensable parties. Accordingly, we again reverse and remand for further proceedings.

II

We first address and reject Mr. Rishell’s assertion that the district court

was precluded by the law of the case from considering the indispensable party

issue. As we have noted, defendants’ motion filed in this court seeking dismissal

for failure to join indispensable parties was summarily denied without discussion. 
1

 In rejecting Mr. Rishell’s argument on this issue, the district court pointed

to the fact that defendants’ motion was filed less than two weeks before oral

argument was scheduled. The court concluded that this “eleventh hour” motion

was not well received on the basis of timing rather than on the basis of substance.

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“Law of the case principles do ‘not bar a district court from acting unless an

appellate decision has issued on the merits of the claim sought to be precluded.’”

Wilmer v. Board of County Comm’rs, 69 F.3d 406, 409 (10th Cir. 1995) (quoting

United States v. Caterino, 29 F.3d 1390, 1395 (9th Cir. 1994)).

 Mr. Rishell correctly argues that law of the case applies to issues that are

resolved implicitly as well as to those decided explicitly. We have articulated

three circumstances in which an issue will be considered implicitly decided for

purposes of the law of the case. See Guidry v. Sheet Metal Workers Local No. 9,

10 F.3d 700, 707 (10th Cir. 1993), modified on other grounds, 39 F.3d 1078 (10th

Cir. 1994), cert. denied, 115 S. Ct. 1691 (1995). The doctrine applies when:

(1) resolution of the issue was a necessary step in resolving the

earlier appeal; (2) resolution of the issue would abrogate the prior

decision and so must have been considered in the prior appeal; and

(3) the issue is so closely related to the earlier appeal its resolution

involves no additional consideration and so might have been resolved

but unstated.

Id. The district court determined that our summary denial did not fall within any

of these circumstances and that we therefore did not implicitly decide the 

indispensable party issue.1

 
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Mr. Rishell does not argue that the district court applied these factors

incorrectly. He contends instead that our summary denial implicitly decided the

issue because it was presented in the motion we denied. Although we

acknowledge that the three factors set out above are not exhaustive, see id. at 707

n.5, we nevertheless rejected an analogous argument in Wilmer. There the

defendant argued that because a court must always satisfy itself of its jurisdiction,

a decision on the merits is an implicit ruling that jurisdiction is present. We

disagreed, holding that even though the jurisdictional issue had been recognized

by the dissenting opinion, “such a theoretical consideration should not be

confused with the implicit but actual determination necessary to invoke the law of

the case doctrine.” Wilmer, 69 F.3d at 409 (emphasis in original). Here, as in

Wilmer, the fact that a court of appeals should raise the issue of indispensable

parties sua sponte does not in and of itself require the imputation of an implicit

determination of the issue. We conclude that the district court was not barred

from addressing the indispensable party issue on remand, and we therefore turn to

the merits of that issue.

III

“We review a district court’s decision as to whether a party is indispensable

for an abuse of discretion.” Resolution Trust Corp. v. Stone, 998 F.2d 1534, 1549

(10th Cir. 1993). In so doing, we “must consider ‘whether the decision maker
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failed to consider a relevant factor, whether he [or she] relied on an improper

factor, and whether the reasons given reasonably support the conclusion.’”

Kickapoo Tribe of Indians in Kansas v. Babbitt, 43 F.3d 1491, 1497 (D.C. Cir.

1995)(quoting Johnson v. United States, 398 A.2d 3654, 365 (d.C. 1979))

(alteration in original). The standards set out in Rule 19 for assessing whether an

absent party is indispensable are to be applied “in a practical and pragmatic but

equitable manner.” Francis Oil & Gas, Inc. v. Exxon Corp., 661 F.2d 873, 878

(10th Cir. 1981). See also Provident Tradesmens Bank & Trust Co. v. Patterson,

390 U.S. 102, 106-07 (1968). “The moving party has the burden of persuasion in

arguing for dismissal.” Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir.

1990).

Determining whether an absent party is indispensable requires a two-part

analysis. See id.; Francis Oil & Gas, 661 F.2d at 877-78. The court must first

determine under Rule 19(a) whether the party is necessary to the suit and must

therefore be joined if joinder is feasible. If the absent party is necessary but

cannot be joined, the court must then determine under Rule 19(b) whether the

party is indispensable. If so, the suit must be dismissed.

Whether Mrs. Lacey’s husband and children are necessary parties under

Rule 19(a) requires assessment of three factors. The court must consider (1)

whether complete relief would be available to the parties already in the suit, (2)

whether the absent party has an interest related to the suit which as a practical
2

 Rule 19(a) provides in pertinent part :

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.

Fed. R. Civ. P 19(a). We consider parts 2(i) and 2(ii) separately in our analysis.

3

 The district court relied on Aguilar v. Los Angeles County, 751 F.2d 1089

(9th Cir. 1985), and Lopez v. Martin Luther King, Jr. Hosp., 97 F.R.D. 24 (C.D.

Cal. 1983), in finding prejudice to the absent parties. To the extent that those

cases are contrary to the authorities and analysis we have set out in the text on

this issue, we do not find them persuasive. Indeed, the dissenting opinion in

Aguilar is more convincing and in keeping with the weight of authority.

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matter would be impaired, and (3) whether a party already in the suit would be

subjected to a substantial risk of multiple or inconsistent obligations.2 In ruling

that the absent parties here are necessary, the district court concluded that a

disposition in this action might impair or impede their ability to protect their own

interests. See Aplt. App. vol. III, at 594.3

We are not convinced that, as a practical matter, the interests of the absent

parties will be impaired by this suit. It is true that under Oklahoma law the

interest of the husband in recovering damages for loss of consortium arising from

injuries to his wife is derivative of the wife’s right to recover, and that the
4

 The Oklahoma courts have consistently described a spouse’s loss of

consortium as a derivative interest. See, e.g., Walker v. City of Moore, 836 P.2d

1289, 1292 n.4 (Okla.1992). Those courts have also held that children may

maintain a cause of action for loss of parental consortium which contains many of

the same elements that make up the spousal claim. See Williams v. Hook, 804

P.2d 1131, 1132 n.1 (Okla 1990). Although the Oklahoma courts have not

directly addressed the issue, we presume that the children’s claim is derivative as

well.

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husband would therefore be barred in the state court action by an adverse

determination here. See Laws v. Fisher, 513 P.2d 876 (Okla. 1973).4 However,

the prejudice to the relevant party’s interest “may be minimized if the absent party

is adequately represented in the suit.” Makah Indian Tribe, 910 F.2d at 558. See

also Wichita & Affiliated Tribes of Oklahoma v. Hodel, 788 F.2d 765, 774-75

(D.C. Cir. 1986); Heckman v. United States, 224 U.S. 413, 444-45 (1912); 3A

James Moore, Moore’s Federal Practice ¶19.07[2.-1], at 19-106 (2d ed. 1995)

(“the fact that the absent person may be bound by the judgment does not of itself

require his joinder if his interests are fully represented by parties present”). 

Mr. Rishell, as Mrs. Lacey’s curator, has an interest in establishing a right

to recover for her injuries that is virtually identical to the interest of her husband

and children in establishing their derivative claim. Indeed, Mr. Rishell presented

an affidavit to the district court executed by Mr. Lacey in which Mr. Lacey

acknowledges and agrees to the likely impairment of his interest and that of the

children. The district court discounted the affidavit because Mr. Lacey had not

signed a waiver agreeing to drop the state court claim, relying on Saratoga Dev.
5

 The district court did not directly address the affidavit in the context of

assessing prejudice to defendants. As we discuss in reviewing the court’s Rule

19(b) analysis, however, the court was clearly concerned with prejudice to the

defendants arising from their need to defend two suits, and accordingly gave

primary emphasis to the judicial economy of deciding all claims in one action. As

we set out in text, this concern cannot be made dispositive under the

circumstances here.

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Corp. v. United States, 777 F. Supp. 29 (D.D.C. 1991). The court’s reliance upon

Saratoga was unwarranted in two regards. First, the court in that case did not

require a waiver; the court merely observed that the execution of a waiver

eliminated any possible prejudice. Id. at 34. Second and more significantly, in

requiring a written waiver here the district court applied a mechanical approach

rather than assessing the circumstances pragmatically. If, as a practical matter,

the interests of the absent parties will be adequately represented, their interests

will not be impaired and a waiver becomes a mere technicality.5 Consequently,

we are not persuaded defendants carried their burden of persuasion on the

necessary party issue. 

Even assuming they did, however, we do not agree with the district court

that the absent parties are indispensable under Rule 19(b). Determining whether

an absent party is indispensable requires a court to consider:

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 provisions 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, whether the plaintiff will have an adequate
6

 We reject as sheer speculation and otherwise inappropriate defendants’

argument that a state court jury would award damages to the husband and children

separately in an amount greater than would be awarded in a single action. We

likewise reject plaintiff’s argument that a state court jury would be more

sympathetic to defendants. See Walsh v. Centeio, 692 F.2d 1239, 1244 n.5 (9th

Cir. 1982) (loss of the benefit of diversity jurisdiction will not alone prevent a

dismissal under Rule 19(b)).

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remedy if the action is dismissed for nonjoinder.

Fed. R. Civ. P. 19(b). The district court based its decision to dismiss primarily on

the fourth factor, the availability of an alternative forum. In so doing, it

misperceived the circumstances in which this factor may be viewed as dispositive.

Rule 19(b) analysis requires that the factors be evaluated in a practical and

equitable manner, and be given the appropriate weight. As we have discussed

above, prejudice to the absent parties is not a concern here because of the identity

of interests between Mr. Rishell and those parties. Moreover, prejudice to

defendants is minimized due to the likelihood that a verdict in their favor in this

action would bar recovery by the absent parties in the state action, while a verdict

against them would not itself increase their exposure.6 The first factor therefore

weighs against dismissal. Because prejudice here is minimal, we need not be

concerned with the second factor, which addresses the availability of means for

lessening or avoiding prejudice. The third factor requires consideration of

whether an adequate remedy can be awarded without the absent party. Mr.

Rishell, should he prevail, would be able to recover damages on behalf of Mrs.
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Lacey for her injuries despite the lack of her husband and children as parties. The

third factor therefore also counsels against dismissal.

We turn then to the fourth factor and assess whether the fact that Mr.

Rishell may have an adequate remedy in state court requires dismissal of this

action. The district court gave this factor dispositive weight, observing that

some courts have viewed this consideration as the most important one of the four. 

Most courts have done so, however, only when an alternative forum is not

available. “The availability of an alternative forum is primarily of negative

significance under Rule 19. The absence of an alternative forum would weigh

heavily, if not conclusively against dismissal while the existence of another forum

would not have as significant an impact in favor of dismissal.” Pasco Int’l

(London) Ltd. v. Stenograph Corp., 637 F.2d 496, 501 n.9 (7th Cir. 1980). 

Hence, courts “‘do not view the availability of an alternative remedy, standing

alone, as a sufficient reason for deciding that the action should not proceed

among the parties before the court.’” Id. at 501 (quoting Bio-Analytical Servs.,

Inc. v. Edgewater Hosp., Inc., 565 F.2d 450, 453 (7th Cir. 1977), cert. denied, 439

U.S. 820 1978)). “[T]he potential existence of another forum does not, in and of

itself, outweigh a plaintiff’s right to the forum of his or her choice. Some

additional interest of either the absent party, the other properly joined parties or

entities, or the judicial system must also be present.” Local 670, United Rubber

Workers v. International Union, United Rubber Workers, 822 F.2d 613, 622 (6th
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Cir. 1987), cert. denied, 484 U.S. 1019 (1988). Accord Pasco, 637 F.2d at 501. 

“[J]udicial economy and convenience do not in themselves provide grounds for

dismissal.” Boone v. General Motors Acceptance Corp., 682 F.2d 552, 554 (5th

Cir. 1982). 

We agree with these courts. The district court should not have given

dispositive weight to the availability of an alternative forum. Mr. Rishell, as

plaintiff, has an interest recognized by federal law in the forum of his choice,

which is not outweighed here by the interests of the absent parties, defendants, or

the judicial system. Accordingly, we conclude the district court abused its

discretion in dismissing Mr. Rishell’s action under Rule 19. 

We REVERSE the judgment of the district court and REMAND for further

proceedings.