Spencer v Eversource

                  UNITED STATES DISTRICT COURT
                   DISTRICT OF NEW HAMPSHIRE



Kevin Spencer, Mark Lagasse and
Lagaspence Realty, LLC

    v.                             Civ. No. 16-cv-353-JL
                                   Opinion No. 

Eversource Energy Service Co.


                        MEMORANDUM ORDER

    The question presented in this case is whether the owner

and lessee of an easement are required and indispensable parties

to a lawsuit challenging the use of that easement.   This case

involves property owners’ efforts to prevent construction of

electric transmission lines over an easement burdening

plaintiffs’ property in Stark, New Hampshire, part of a 190-mile

project known locally as the Northern Pass.   The crux of

plaintiffs’ complaint is that the proposed use of the easement

is unreasonable and a breach of its express terms.   Invoking

this court’s diversity jurisdiction, 

, they seek

a declaratory judgment preventing the project, see 

, and monetary damages.
       Before the court are plaintiff’s motion to amend their

complaint1 and defendant’s motion to dismiss.2   The plaintiffs’

proposed Amended Complaint updates developments within the state

utility regulatory process and information regarding their

potential damages.3   The defendant’s motion to dismiss posits two

arguments:    1) that the court lacks subject-matter jurisdiction,

Fed. R. Civ. P. 12(b)(1), because the complaint fails to satisfy

the $75,000 amount-in-controversy threshold set forth in 

(a); and 2) that the plaintiffs have failed to join

two necessary and indispensable parties -- the owner and lessee

of the easement, Fed. R. Civ. P. 12(b)(7) and 19.

       After reviewing the parties’ submissions and hearing oral

argument, the court first grants plaintiff’s motion to amend.

The court further finds that although the Amended Complaint

alleges sufficient facts (just barely) to satisfy the

jurisdictional amount, it must be dismissed because the owner

and lessee of the easement are both necessary and indispensable

parties, their joinder would defeat the court’s diversity

jurisdiction, and the case cannot “in equity and good


1   Doc. no. 21.
2   Doc. no. 9.
3 Counsel for both parties agreed at the motion hearing that the
proposed Amended Complaint effected no substantive change in the
plaintiffs’ claims.

                                  2
conscience” proceed without them.        

(c); Fed. R.

Civ. P. 19(b).       The court therefore grants defendant’s motion to

dismiss.


I.    Background

       The individual plaintiffs, Kevin Spencer and Mark Lagasse,

are each owners of plaintiff Lagaspence Realty, LLC, which, in

turn, owns the Percy Lodge and Campground in Stark, NH.4       Spencer

and Lagasse are rebuilding an old boarding house to create a

year-round lodge and convenience store.5       They have spent over

$600,000 on the project.6      The property was, at all relevant

times, encumbered by a power line easement granted to Public

Service Company of New Hampshire (PSNH) by plaintiffs’

predecessor in title in 1946.      The easement measures

approximately 2950 feet by 150 feet and is presently occupied by

an electric transmission line.7      The Northern Pass lines will run

above and parallel to the existing lines and will be supported

by steel lattice structures anchored to concrete foundations.

Unlike the present power lines on the easement, the proposed




4   Amended Complaint, doc. no. 21-1, ¶¶ 1-3.
5   Id. ¶ 46.
6   Id. ¶ 47.
7   Id. ¶¶ 48, 55.

                                     3
transmission lines will be visible from the plaintiffs’ planned

lodge.8       Five of these structures are to be built on the easement

at issue.9

           The easement burdening plaintiffs’ land is still owned by

PSNH, a New Hampshire corporation and regulated public utility.10

In October 2015, PSNH leased the easement to Northern Pass

Transmission, LLC (NPT), a New Hampshire entity established in

2010 to construct and own the proposed transmission lines.11          NPT

is a wholly-owned subsidiary of Eversource Energy Transmission

Ventures, Inc., which is, in turn, a wholly-owned subsidiary of

Eversource Energy, a Massachusetts holding company.12       PSNH is




8    Id. ¶ 75.
9    Id.
10   Id. ¶ 7; 

.
11Id. ¶¶ 6, 18. Although PSNH and NPT have executed the lease,
counsel indicated at the motion hearing that the lease does not
take effect until approved by the New Hampshire Public Utilities
Commission.
12Bersak Affidavit, doc. no. 9-2 ¶ 3. The court, as it is
permitted to do, considers extrinsic evidence submitted by EESC,
specifically, the Bersak affidavit, attached as Exhibit 2 to
defendant’s motion. Doc. no. 9-2. See Scott v. First American
Title Ins. Co., 

 (noting that consideration of
extrinsic evidence is permitted in Rule 19 context); Torres-Gonzalez v. HIMA San Pablo Caguas, 

(D.P.R. 2009) (“[T]he principle of conversion of a motion to
dismiss into a motion for summary judgment when extrinsic
materials are reviewed, does not apply in regards to a motion to
dismiss for lack of subject matter jurisdiction.”) (citing
                                      4
also a wholly owned Eversource Energy subsidiary.13      Defendant

Eversource Energy Service Co. a Connecticut corporation, is also

a wholly-owned subsidiary of Eversource Energy.      It is a service

company performing non-power related tasks, including the

provision of administrative, accounting, engineering, financial

and legal services, to other wholly-owned Eversource Energy

subsidiaries,14 such as PSNH.15


II.    Legal analysis

       The court, as is usually required, turns first to the

jurisdictional question raised by defendant’s motion.       See

Dynamic Image Tech., Inc. v. United States, 

 (1st

Cir. 2000) (“As a general matter, trial courts should give Rule

12(b)(1) motions precedence.”).       After resolving that question

-- in plaintiff’s favor -- the court will address the joinder

issue.




Dynamic Image Techs., Inc. v. United States, 

(1st Cir. 2000).
13   Id. ¶ 21.
14   Id. ¶ 6.
15   Id. ¶ 17.

                                  5
A.   Amount-in-controversy

     Pursuant to 

, federal “district courts

shall have original jurisdiction of all civil actions where the

matter in controversy exceeds the sum or value of $75,000,

exclusive of interest and costs,” and there is diversity of

citizenship.   

(a).    The amount in controversy in

an action such as this seeking declaratory relief “is the value

of the right or the viability of the legal claim to be declared

. . . .”   CE Design Ltd. v. Am. Econ. Ins. Co., 

(1st Cir. 2014).    Where, as here, there are multiple plaintiffs,

each must allege a claim that is in excess of $75,000.     Stewart

v. Tupperware Corp., 

 (1st Cir. 2004).        The

plaintiff carries the burden to establish the jurisdictional

minimum amount.    

.

     “[T]he sum claimed by the plaintiff controls if the claim

is apparently made in good faith.     It must appear to a legal

certainty that the claim is really for less than the

jurisdictional amount to justify dismissal.”     

 (quoting St.

Paul Mercury Indem. Co. v. Red Cab Co., 

, 288–89

(1938)).   A plaintiff’s “‘general allegation of damages that

meet the amount requirement suffices unless questioned by the

opposing party or the court.’” 

 (quoting Spielman v. Genzyme

Corp., 

 (1st Cir. 2001)).     However, once the


                                  6
opposing party has questioned the amount, “‘the party seeking to

invoke jurisdiction has the burden of alleging with sufficient

particularity facts indicating that it is not a legal certainty

that the claim involves less than the jurisdictional amount.’”

 (quoting Spielman, 

).    This burden may be met

by amending pleadings or submitting affidavits.    Dep't of

Recreation & Sports of P.R. v. World Boxing Ass’n, 

 (1st Cir. 1991).

       Here, as previously noted, plaintiffs allege that they have

spent over $600,000 renovating their property.16   This assertion

is supported by an affidavit detailing the expenditures,17 the

accuracy of which the defendants do not dispute.    The plaintiffs

further claim that the proposed transmission lines will cause

aesthetic damage to the property which will both harm their

prospective business and diminish the property’s value.18     They

seek damages “for their personal investment in money, equipment

use and labor.”19

       While these allegations are sparse, the court, reading the

complaint liberally, Murphy v. United States, 

, 522



16   Amended Complaint, doc. no. 21-1, at ¶ 47.
17   Affidavit, doc. no. 11-1.
18   Amended Complaint, doc. no. 21-1, at ¶ 78.
19   Id. ¶ 82.

                                  7
(1st Cir. 1995), is satisfied that they are sufficient to

indicate “that it is not a legal certainty that the claim

involves less than the jurisdictional amount” of $75,000 to each

of the plaintiffs.     Stewart, 

.   The Complaint

could be fairly read as alleging that the bulk of plaintiffs’

$600,000 investment will be lost as a result of the aesthetic

damage to their property caused by the alleged misuse of the

easement.    Whatever difficulty the plaintiffs might ultimately

have in proving their damages “is largely irrelevant to the

court’s jurisdiction because the pertinent question is what is

in controversy in the case, not how much the plaintiffs are

ultimately likely to recover.”    Amoche v. Guarantee Trust Life

Ins. Co., 

 (1st Cir. 2009) (emphasis omitted).

The court therefore denies defendant’s motion as to Rule

12(b)(1).


B.   Failure to join

     As noted, plaintiffs have sued only EESC, but not PSNH, the

owner/lessor of the easement, or NPT, the lessee and project

proponent.    Defendant argues that both PSNH and NPT are required

and indispensable parties, and because neither can be joined

without destroying diversity, the Complaint must be dismissed.

The court agrees.




                                   8
1.   Applicable legal standard

     Whether dismissal under Rule 19 is warranted is a two-part

inquiry.    First, the court must determine whether the party is a

required party under Rule 19(a), and then whether it is an

indispensable party under Rule 19(b).    United States v. San Juan

Bay Marina, 

 (1st Cir. 2001).    If the party is

“required” but, as here, joinder is not feasible because it

would destroy diversity, Rule 19(b) then requires the court to

determine, “whether in equity and good conscience, the action

should proceed among the existing parties or should be

dismissed.”   Fed. R. Civ. P. 19(b).

     Failure to join a party under Rule 19 is a grounds for

dismissal under Rule 12(b)(7).    The Rule applies to

“circumstances in which a lawsuit is proceeding without

particular parties whose interests are central to the suit.”

Picciotto v. Cont'l Cas. Co., 

 (1st Cir. 2008).

It provides for the joinder of such “required”20 parties when

feasible.   Fed. R. Civ. P. 19(a)(2).   The joinder of non-diverse

parties, for example, is not “feasible” under Rule 19 because

joinder would undermine the court’s diversity jurisdiction.     In


20The rule formerly referred to a required party as a “necessary
party.” See Pujol v. Shearson/Am. Express, Inc., 

 (1st Cir. 1989). To be consistent with the term now used in
the rule, the court uses the phrase “required party” in its
analysis, instead of the long-familiar “necessary party.”

                                  9
re Olympic Mills Corp., 

 (1st Cir. 2007).     The rule

ultimately provides for the dismissal of suits when the court

determines that the joinder of the “required” parties is not

feasible, but that they are, nonetheless, so “indispensable”

that the suit must not be litigated without them.   Fed. R. Civ.

P. 19(b).

    Rule 19 “furthers several related policies, including the

public interest in preventing multiple and repetitive

litigation, the interest of the present parties in obtaining

complete and effective relief in a single action, and the

interest of absentees in avoiding the possible prejudicial

effect of deciding the case without them.”   Acton Co. of

Massachusetts v. Bachman Foods, Inc., 

 (1st Cir.

1982).   “Generally, ‘all interested parties should be joined in

a declaratory judgment action whenever possible,’ in keeping

with the purpose of the Declaratory Judgment Act to fully and

finally adjudicate the controversy at issue.”   RFF Family

P'ship, LP v. Link Dev., LLC, 

 (D. Mass.

2012) (Gorton, J.) (quoting State Farm Mut. Auto. Ins. v. Mid–

Continent Cas. Co., 

 (10th Cir. 1975)).     “Where

jurisdiction depends solely on diversity of citizenship, the

absence of a non-diverse, indispensable party is not a mere

procedural defect.   Rather, it destroys the district court’s



                                10
original subject matter jurisdiction.”    Picciotto, 

.


2.    Rule 19(a)

      Under Rule 19(a), a party is “required” if:

      (A) in that person’s absence, the court cannot accord
      complete relief among existing parties; or

      (B) that person claims an interest relating to the
      subject of the action and is so situated that
      disposing of the action in the person’s absence may:

          (i) as a practical matter impair or impede the
          person’s ability to protect the interest; or

          (ii) leave an existing party subject to a
          substantial risk of incurring double, multiple,
          or otherwise inconsistent obligations because of
          the interest.

Fed. R. Civ. P. 19(a)(1).

      At oral argument, plaintiffs’ counsel conceded that PSNH

and NPT are “required parties” under Rule 19(a).    The court

appreciates counsel’s candor, as it is beyond reasonable dispute

that both PSNH and NPT are required parties.   PSNH owns the

easement burdening plaintiffs’ property and NPT is both the

lessee and the party seeking regulatory approval to construct

the Northern Pass.   Under the first criterion of Rule 19(a), a

party is “required” if complete relief cannot be accorded among

the existing parties.   Fed. R. Civ. P. 19(a)(1)(A).   Here, even

if the court issues the declaration plaintiffs seek as to EESC,

it will not be binding on PSNH and NPT.   See Mass. Delivery

                                11
Ass'n v. Coakley, 

, 48 n.12 (“The [Federal

Declaratory Judgment] Act does not contain any provisions

indicating that declaratory judgments are authoritative vis-à-

vis nonparties to the litigation.”).    Therefore, a decision in

this case will not accord complete relief among the parties,

including the plaintiffs, in the absence of NPT and PSNH.

     Similarly, under Rule 19(a)(1)(B),21 a declaratory judgment

from this court could “impair or impede” the interests of NPT

and PSNH, Fed R. Civ. P. 19(a)(1)(B)(i), because each has “an

obvious interest that requires protection.”    Sch. Dist. Of City

of Pontiac v. Sec’y of U.S. Dep't. of Educ., 

(6th Cir. 2009); cf. Schutten v. Shell Oil Co., 

 (5th Cir. 1970) (observing that even absent binding ruling,

a potential creation of a mere cloud on title is sufficient

prejudice to make a party’s joinder desirable).

     In addition, a declaratory judgment from this court risks

both plaintiffs’ and defendant’s exposure to inconsistent

obligations should PSNH and NPT successfully litigate the scope

of the easement in another forum.    Fed. R. Civ. P.

19(a)(1)(B)(ii).   Nor could plaintiffs enforce a declaratory



21Given the disjunctive “or” after Rule 19(a)(1)(A),
consideration of the subsection (B) criteria would have been
unnecessary, even without plaintiffs’ concession. The court
sketches the analysis here for the sake of completeness.

                                12
judgment from this court without potentially running afoul of an

adverse judgment from a subsequent forum.    Cf. Delgado v. Plaza

Las Americas, Inc., 

 (1st Cir. 1998) (“Inconsistent

obligations occur when a party is unable to comply with one

court’s order without breaching another court’s order concerning

the same incident.”).


3.   Rule 19(b)

     Having found that PSNH and NPT are both required parties

and that their joinder would destroy diversity jurisdiction,

i.e., it is “not feasible,” the court turns to Rule 19(b) to

determine whether the action should nevertheless proceed in

their absence.    In making this decision, the court must

consider:

     [F]irst, 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
     remedy if the action is dismissed for nonjoinder.

Piccioto, 

 n.13.    Fed. R. Civ. P. 19(b)(1)-(4).

However, our Court of Appeals has stressed that “Rule 19(b)

determinations must be based on fact-specific considerations,”

and “must be steeped in ‘pragmatic considerations.’”    Travelers

Indem. Co. v. Dingwell, 

, 635 (1st Cir. 1989)


                                 13
(quoting Advisory Committee Notes on the 1966 Amendments to Rule

19).    Adopting this approach, the court declines to permit the

case to proceed in this forum without the absent defendants.

       As to the first factor -- prejudice to either the existing

or non-joined parties -- the court has already noted that

neither NPT nor PSNH would be bound by any judgment in this

case.     But, as the Supreme Court has observed:

       This means, however, only that a judgment is not res
       judicata as to, or legally enforceable against, a
       nonparty. It obviously does not mean either (a) that
       a court may never issue a judgment that, in practice,
       affects a nonparty or (b) that (to the contrary) a
       court may always proceed without considering the
       potential effect on nonparties simply because they are
       not ‘bound’ in the technical sense. Instead, as Rule
       19(a) expresses it, the court must consider the extent
       to which the judgment may ‘as a practical matter
       impair or impede his ability to protect’ his interest
       in the subject matter.

Provident Tradesmens Bank & Tr. Co. v. Patterson, 

 (1968) (internal footnotes omitted).    Here, a judgment for

the plaintiffs, even if not binding on the PSNH and NPT, may,

“as a practical matter,” 

 create legal confusion which could

undermine or serve as an impediment to their respective easement

rights.

       Next, under the second 19(b) factor, the plaintiffs have

offered no means or proposal as to how any prejudice to the

absent parties can be lessened.    Nor can the court conceive of

any means to reduce the prejudice ensuing from a declaration


                                  14
that the proposed use of the easement is invalid, while neither

the owner nor prospective user of the easement are before the

court.

       As to the third factor, for the same reasons set forth

above in its discussion of complete relief under Fed. R. Civ. P.

19(a)(1)(A), the court also finds that any judgment entered in

this case would not be “adequate” because it would not fully

resolve the issue against all parties with an interest in the

easement.    Fed. R Civ. P. 19(b)(3).

       Finally, as to the fourth factor, plaintiffs do not dispute

that if this case is dismissed it could be filed in state court

with all required parties present.      Instead, they assert that

they avoided state court to be “free from the influences of New

Hampshire politics and Eversource money.”22      The court finds that

this sort of veiled and unsubstantiated criticism of New

Hampshire’s state courts has little evidentiary value and adds

nothing to the court’s analysis.       At oral argument, plaintiffs

tried to support their position by referring to Mullen v. Pub.

Serv. Co. Of New Hampshire, No. 2014-0797, 

(July 16, 2015), a case, like this one, involving landowners

contesting PSNH’s and NPT’s alleged misuse of an easement in

connection with the Northern Pass project.      The Court affirmed


22   Pltff. Obj., doc. no. 11, at 2.

                                  15
the trial court’s grant of the defendants’ motion to dismiss for

failure to state a claim upon which relief may be granted.     Id.

at *4.    At oral argument, plaintiff’s counsel characterized the

dismissal of the Mullen case without discovery as depriving

those plaintiffs of “their day in court,” and that he filed suit

in federal court (although not against PSNH and NPT) to “assure

[plaintiffs of] a fair shot.”    Plaintiffs, however, have cited

no authority to support their implicit assertion that a court’s

granting a motion to dismiss a complaint for failure to state a

claim -- a procedural posture that almost by definition precedes

discovery -- is in any way indicative of a court incapable of,

or indisposed to, giving their case proper consideration.     Thus,

all of the Rule 19(b) factors militate in favor of dismissal for

non-joinder.

       Plaintiffs’ objection does not directly address the Rule

19(b) factors set forth above.    It is instead grounded in the

contention that EESC controls NPT, PSNH, and “every aspect of

the Northern Pass project,”23 such that EESC can represent the

interests of the easement owner and lessee.24     This argument does

not withstand scrutiny when examined in light of the undisputed

record.    EESC is not a parent of NPT or PSNH.   Nor is EESC the


23   Pltff. Obj., doc. no. 11 at 3.
24   Id. at 7.


                                  16
owner of the easement, a party to the lease referred to in the

Complaint, or the proponent of record of the Northern Pass

project.25

       As noted previously, supra, § I, EESC provides non-power

services to other wholly-owned subsidiaries of Eversource

Energy.    All of EESC’s services are rendered pursuant to the

terms of, and limited by the scope of, contractual agreements.26

As such, EESC does not direct or control any of the affiliates

for which it provides services.27      Thus, contrary to the premise

of plaintiffs’ objection, the undisputed facts show that EESC is

not “responsible for all aspects of the [Eversource Energy]

transmission system including operations, maintenance,

engineering, planning, reliability compliance, project

management and construction.”28   EESC is not a public utility,

and as such it cannot own any plant or equipment used in the

generation, transmission or sale of electricity.29      The upshot of

the above corporate structure is that EESC’s presence in this




25Bersak Affidavit, doc. 9-2 ¶ 14; Complaint, doc. no. 1 ¶¶ 6 –
19.
26   Id. at ¶ 7.
27   Id. at ¶ 9.
28   Id. at ¶ 12.
29   Id. at ¶¶ 10 & 11.

                                  17
litigation does not overcome the absence of PSNH and NPT in the

context of the court’s Rule 19 analysis.30

       While not disputing the above corporate structure,

plaintiffs argue that EESC can represent the interests of PSNH

and NPT because various EESC executives and attorneys also serve

in similar capacities with PSNH and NPT, and that EESC

employees, executives or attorneys signed or submitted

regulatory filings made on behalf of NPT that were related to

the Northern Pass.31    But “‘the fact that one person controls two

corporations is not sufficient to make the two corporations . .

. the same person under the law.’”     Michnovez v. Blair, LLC, 

 (D.N.H. 2011) (quoting Vill. Press, Inc. v.

Stephen Edward Co., 

 (1980)).

       Moreover, while EESC does not dispute that it likely has a

commonality of interests with NPT and PSNH insofar as seeing the




30Defendant argues that plaintiff is improperly trying to
“pierce the corporate veil.” Def. Mem. of Law, doc. no. 9-1, at
9. The plaintiffs do not make that argument in their objection,
and the court does not interpret the plaintiffs’ argument in
that light. Indeed, such “piercing” usually seeks to ignore
corporate formalities and hold an individual liable for
corporate acts. See, e.g., LaMontagne Builders, Inc. v. Bowman
Brook Purchase Group, 

 (noting that piercing
the corporate veil results in assessing individual liability).
Here, by contrast, plaintiffs seek to put the Eversource Energy
subsidiary in the shoes of two other subsidiaries, NPT and PSNH.
31   Id. at 6-9; Complaint, doc no. 1, at ¶¶ 4-20.

                                  18
Northern Pass project proceed, plaintiffs have provided no

limiting principle for the proposition that such aligned

interests, standing alone, can satisfy Rule 19 by simply

allowing a plaintiff to sue any diverse subsidiary entity that

shares a parent with a non-diverse, required, subsidiary.

    Although plaintiffs point to two cases from the First

Circuit Court of Appeals in support of their objection, both are

inapposite.   In Bacardi Int’l Ltd. v. V. Suarez & Co., Inc., 

 (1st Cir. 2013), the Court held that a plaintiff

petitioning for confirmation of an arbitration award could

protect the interests of an absent affiliated company, in part

because the two entities “would each wish to show the same

thing,” i.e., that the arbitration award should not be vacated.

 at 11 (citing Pujol, 

).   Although Bacardi was

addressing Rule 19(a), rather than 19(b), as here, it is

instructive, but it does not support plaintiffs’ position.      In

the first instance, the procedural posture of Bacardi was a

significant factor.   The Court of Appeals noted that it was not

addressing a “question of whether [the absent party] would have

been a required party if the contract dispute had been

adjudicated in the district court” rather than in the context of

the “limited nature of judicial review” of an arbitration award.

Id. at 9.   Here, the court views the current dispute as more

akin to the underlying contract dispute referred to -- but not

                                19
before the court -- in Bacardi, rather than the more limited

arbitral confirmation proceeding that was actually being

litigated in that case.    Equally as important, the plaintiff in

Bacardi, was trying to confirm an arbitration award over which

it clearly had an interest; it had successfully participated in

the arbitration.    Here, EESC has no legal interest in the lease

or easement burdening plaintiffs’ property.    Instead, only the

legal interests of NPT and PSNH at stake.

       The Bacardi court relied on 

 in which the

Court of Appeals held that a defendant parent company could

adequately protect the interests of its (absent and non-diverse)

wholly-owned subsidiary, which, the court noted, the parties

agreed was a “corporate shell.”     

.   Here, EESC is

not a parent company of NPT or PSNH.    Nor is it a corporate

shell, existing separately from the absent companies “only on

paper.”    

   The undisputed facts demonstrate that EESC is a

separately incorporated entity which maintains its own books and

accounts, separate and apart from other Eversource Energy

subsidiaries, including PSNH and NPT.32

       Ultimately, the corporate relationship between and among

the three businesses is insufficient to overcome EESC’s well-

founded argument that PSNH and NPT are required, indispensable


32   Bersak Affidavit, doc. 9-2 ¶ 15.

                                  20
parties, and that “in equity and good conscience, the action

[can not] proceed among the existing parties” and must be

dismissed.    Fed. R. Civ. P. 19(b).33


III. Conclusion

       Plaintiffs’ motion to amend34 is GRANTED.   Defendant’s

motion to dismiss35 is GRANTED.     The clerk shall enter judgment

accordingly and close the case.

       SO ORDERED.



                                ____________________________
                                Joseph N. Laplante
                                United States District Judge

Dated:    September 28, 2017

cc:    Arthur B. Cunningham, Esq.
       Bruce W. Felmly, Esq.
       Adam M. Hamel, Esq.


33At oral argument, plaintiff’s counsel argued that Hooper v.
Wolfe, 

 (6th Cir. 2005), supported a finding that
NPT and PSNH are not indispensable under Rule 19(b). The court
disagrees. In Hooper, the court held that a limited partnership
is not an indispensable party in a dispute between its two
partners. 

. The court, relying on the decisions
of other courts of appeals, relied on “the commonsense notion
that so long as the constituent partners are before the court,
the partnership is not an indispensable party.” 

.
Here, where EESC has no legal connection to the easement at
issue -- or its proposed use -- the absence of the two parties
that do have such connections warrants the opposite conclusion.
34   Doc. no. 21.
35   Doc. no. 9.

                                    21