Opinion
C.A. No. 99A-11-007 WCC.
Submitted: July 19, 2000.
Decided: December 28, 2000.
On Appellants' Motion for Leave to Amend Notice of Appeal. Denied. On Appellee's Motion to Dismiss Notice of Appeal. Granted.
Richard D. Kirk, Esquire; Morris, James, Hitchens Williams, LLP; 222 Delaware Avenue, 10th Floor, P.O. Box 2306, Wilmington, DE 19899. Attorney for Appellants.
Laura L. Gerard, Esquire, and Allison E. Reardon, Esquire; Department of Justice; Carvel State Office Building, 820 N. French Street, Wilmington, DE 19801. Attorneys for Appellee.
Donald E. Reid. Esquire and Wendy Walter, Esquire; Morris, Nichols, Arsht Tunnell; 1201 N. Market Street, P.O. Box 1347, Wilmington. DE 19899-1347. Attorney for Moore Brothers Delaware, Inc.
MEMORANDUM OPINION
These motions originate from an appeal from a decision by the Delaware Alcoholic Beverage Control Commission ("DABCC" or the "Commission"), which granted a license to Moore Brothers Delaware, Inc. ("Moore") to sell alcoholic liquor off premises as a package store. The appeal was taken by opposers of the application, Robert Trone and Rajesh Patel (collectively referred to as "Appellants"). The present motions before the Court are DABCC's motion to dismiss and the Appellants' motion for leave to amend their notice of appeal to add Moore as a party.
On July 9, 1999, Moore applied for a package store license for the location at 1146 to 1418 North duPont Street in Wilmington, Delaware, to open a store specializing in the sale of wine. DABCC held a public hearing on August 12, 1999 to consider Moore's application, whereby the Appellants, holders of licenses to sell alcoholic beverages at other locations, opposed Moore's application. DABCC noted in its decision that while no formal protest by ten members of the community under 4 Del. C. § 541 (b) was filed in a timely maimer, two written objections from the Appellants were received. Although the Chairman of DABCC admitted that it was not a protested hearing according to the statute, DABCC permitted the Appellants' counsel to speak after no other Commissioners objected.
Appellant Trone owns Milltown Wine and Spirits and Delaware Spirits and Wine, which hold licenses issued by DABCC for the sale of alcoholic beverages in stores for consumption off the premises. Appellant Trone's businesses are not in the immediate vicinity of the proposed licensed premises. And. Appellant Patel owns a business, International Liquors, which holds a license for the sale of alcoholic beverages in a store for consumption off the premises and is 200 feet from Moore's location.
(Tr. Bd. Hr'g at 43.) Moore's counsel objected on the record to the Appellants' presentation at the hearing. (Tr. Bd. Hr'g at 7-8.)
On October 7, 1999, DABCC approved the application. On November 8, 1999, the Appellants filed a Notice of Appeal. Thereafter, DABCC filed a motion to dismiss, and on February 2, 2000, the Appellants filed a motion for leave to amend their notice of appeal. DABCC argues that the appeal should be dismissed for several reasons. The first is the Appellants' lack of standing. The second is that the Appellants failed to file a proper notice of appeal within the statutory time because they failed to name Moore as an appellee.
On January 27, 2000, an Order was signed to suspend the briefing of the appeal on the merits until the other motions were resolved.
While the Appellants argue in their response that there is no procedure for a motion to dismiss an appeal. their argument is meritless because a vehicle is available under Superior Court Civil Rule 72 (i).
DABCC also asserts that the granting of Moors license makes the appeal moot.
The first critical question is whether the Appellants have standing to appeal DABCC's decision and more specifically whether they are parties to the hearing. As such, some background as to what constitutes a "party" in this situation must be explored first.
According to 4 Del. C. § 541 (b), in order to object to an alcoholic license application, a formal protest must be filed within 10 days of the filing of the application, and a protest's validity is marked by the signatures of at least ten persons who reside within one mile of the premises where the license is to operate or in any incorporated areas located within one mile of the premises. The Court in Application of Pepper explained the significance of the number of protestors needed to invoke a hearing:
Del. Gen. Sess., 54 A.2d 173 (1947).
In our opinion, the Legislature undoubtedly felt that the protest of a reasonable number of residents or of a representative group of the community ought to be required before a trial of the issue is permitted, and it has fixed ten as being that reasonable number. Unquestionably, one or two persons could be found in every community who would object to an application for a license for conscientious reasons or for personal motives and, apparently, it was that very kind of protest which the Legislature was seeking to guard against.
Id. at 175.
The protest is best described as jurisdictional because it serves the limited purpose of requiring the Commission to hold a hearing on an application. The effect of the protest is to expand the jurisdiction of the Commission so that it may look beyond the application and consider evidence of opposition. A jurisdictional protest is not in itself material evidence of opposition but it creates an opportunity to present such evidence on the record at the hearing. In the absence of a protest, the Commission may consider an application without a hearing.
Alfred I. duPont Sch. Dist. v. Delaware Alcoholic Beverage Control Comm'n, Del. Supr., 343 A.2d 600, 603 (1975).
Id. at 603.
Id.
Id.
Once an application has been granted or denied, Section 541(c) governs the appeal process. It states that the "Commission's decision shall be final and conclusive unless within 10 days after notice thereof a party to such hearing shall appeal to the Superior Court."
4 Del. C. § 541 (c). The time to appeal was expanded to 30 days under the Administrative Procedures Act. 29 Del. C. § 10142 (b).
Who constitutes a "party to such hearing" has been examined in various decisions. In Ahner v. Delaware Alcoholic Beverage Control Commission, the Delaware Supreme Court held that in order to constitute a "party" and obtain the right to appeal, at least ten of the protestors who timely filed the protest and who participated in the hearing below must also participate in the appeal. According to the Supreme Court's decision in Alfred I. duPont School District v. Delaware Alcoholic Beverage Control Commission, admission of a written protest into evidence transforms signatories from mere objectors or jurisdictional protestors to objectors of record. And, the Court further explained that objectors of record are not mere witnesses but participants in the hearing who demonstrate their interest and their "stake" in its result by committing their names to that record in support of a position. The Court further concluded that when one becomes a party to the record, either by protest received into evidence or formal appearance in person or by representative, he or she becomes a "party to such hearing" within the contemplation of the statute and is entitled to notice of the Commission's decision. In addition, a record objector may aggregate toward the ten persons required to file an appeal under Ahner.
Del. Supr., 237 A.2d 706 (1967).
Del. Supr., 343 A.2d 600 (1975).
Id. at 604. The Court noted that the issue in that case concerned who had the right to notice of a Commission decision. Id. at 604, n. 3.
Id. at 604.
While it appears that the Appellants have no standing based on the above decisions, the cases were decided prior to the adoption of the Administrative Procedures Act (the "APA"), which became effective on July 1, 1976. The activities of the Commission are now subject to the provisions of the APA by 29 Del. C. § 10161 (a)(1), which supersede the provisions of the Liquor Control Act.
Newsome v. Delaware Alcoholic Beverage Control Commission, Del. Super., CA. No. 92A-11-003, Steele. J. (July 1. 1993) (ORDER) at 1.
The Court has since explored what constitutes a "party" in an appeal from a DABCC decision under the APA in Newsome v. Delaware Alcoholic Beverage Control Commission. In Newsome, the Court addressed a motion to dismiss, where three protestors failed to meet the substantive jurisdictional requirement of having at least ten protestors named as a party to an appeal. While the Court began its analysis with the holding of the Supreme Court's decision in Ahner, supra, it acknowledged that "the APA did not exist when the Court attempted to apply a rule of reason by applying the threshold number of protestors for a hearing to the number necessary to constitute a group with standing to appeal." The Court then analyzed the issue against the APA, by first examining the APA's definition of "party" as "each person or agency named or admitted in an agency proceeding as a party, or properly seeking and entitled as of right to be admitted as a party to an agency proceeding." The Court concluded that because the APA had the later enactment date, the "irreconcilable differences between the definitions of a `party' must be decided in favor of the APA definition." The Court found that the Commission "admitted" the group of protestors as a party-below and that "each person" who protested and played an adversary role as a party-below in contesting the issuance of the license at the Commission hearing had a right to appeal. The Court reasoned that when ten people sign a protest, it generates the hearing procedure under 4 Del. C. § 541 (b). And, once the hearing process is invoked, "each person acting as a party at the hearing, admitted as such by the Commission, evidenced by the person's actual participation as a member of a group testifying, crossexamining witnesses, and arguing a position, may then appeal an adverse determination." The Court concluded that the appeal right appears to commensurate with participation at the hearing in support of the protest, and as such, it found that the protestors, as parties below, met the definition of a "party" as defined in 29 Del. C. § 10102 (6).
Del. Super., C.A. No. 92A-11-003, Steele, J. (July 1, 1993) (ORDER).
The Court is basing the number of protestors on the caption of the case indicating Larry Newsome, Gil Thompson. and Rob Carter as the Protestors Below-Appellants.
Newsome at 1.
29 Del. C. § 1010 (6).
Newsome at 2. The Court further stated that it is assumed that when the General Assembly enacts a later statute in an area covered by a prior statute, it has in mind the prior statute and therefore statutes on the same subject must be construed together so that effect is given to every provision unless there is an irreconcilable conflict between the statutes, in which case the later supersedes the earlier. Id. (quoting Green v. County of Sussex County, Del. Ch., 415 A.2d 481. 484 (1980)).
Newsome at 2.
Id.
The situation in the present case is slightly different from Newsome. Here, the Appellants filed two untimely written objections to Moore's application. As such, there was no formal protest filed under 4 Del. C. § 541 (b). Moore objected on the record at the hearing in regards to the Appellants' standing, stating:
[I]t goes to really sort of a fundamental argument that we stated in correspondence submitted already to the Commission, and that goes to the standing issue, that is, the standing of Liquor World or the standing of International Liquors at this point in time to present, frankly, any case in this proceeding. And I will make an objection on the record — the Commission will determine as it deems appropriate, but I will make an objection on the record to any material being considered in the record on behalf of these parties as untimely and, in fact, any presentation of them being made today before the Commission.
(Tr. Bd. Hr'g at 7-8.)
During the hearing and in its decision, DABCC acknowledged that there was no formal protest received by the Commission. Despite this, DABCC permitted the Appellants to speak and present their opposition when the Chairman stated to one of the Appellants' attorneys:
Mr. Kirk, I understand that you probably want to have something to say about this? Before you do, it's been the practice of the Commission in the past, even though this is not a protested hearing, to that — as long as all the Commissioners agree — that we do allow other people to have a say in any application for a license. So just to make sure that there is no objection, I would like to make sure that the other Commissioners do not have any objection to it, to Mr. Kirk, giving some sort of presentation to this.
(Tr. Bd. Hr'g at 43.)
None of the other Commissioners objected.
Now, DABCC argues that the Appellants have no standing because, inter alia, they failed to file a formal protest. So, in other words, the same organization, which permitted the Appellants to present their opposition at the hearing after acknowledging that no formal protest was filed under 4 Del. C. § 541 (b), now wants this Court to dismiss the Appellants' appeal because they did not file a formal protest and as such, have no standing. The Court is disturbed by such an argument since DABCC's actions reflected a fundamental failure to follow the statutory framework under which it exists, and its informality caused issues of standing and the creation of rights where none existed. Thus, the issue before the Court is when a formal protest was not filed under 4 Del. C. § 541 (b), but DABCC permits protestors to present opposition of the license application and participate at the hearing, are the protestors admitted as parties with a right to appeal? The Court answers the question in the affirmative.
According to the Court's analysis of the APA and 4 Del. C. § 541 (b) in Newsome, the Court finds that DABCC provided the Appellants an appeal right as a "party" by "admitting" them into the hearing. The fact that the formal protest was not initially filed does not change the answer. The formal protest only serves as a benchmark to invoke a hearing. By DABCC's own initiative, it permitted opposition at the hearing without the requirement of the formal protest. The Court in Newsome stated that once the hearing is invoked and the protestors participate, the appeal right is born. DABCC cannot now argue that it erred in allowing the Appellants to present their opposition despite the lack of a formal protest and as a result, the appeal should be dismissed. Instead, the Court finds that by allowing the Appellants to participate in the hearing, the Appellants were "admitted" into the proceedings under 29 Del. C. § 10102 (6) and became a "party to such hearing." As such, the Appellants have standing to bring the appeal.
Newsome at 2.
The next issue for the Court is whether the Appellants failed to file a proper notice of appeal within the statutorily prescribed time because they failed to name a necessary party, Moore, as an appellee. Because the Appellants' motion for leave to amend the notice of appeal was filed to potentially cure this failure, the Court will consider that motion in conjunction with this issue.
On February 2, 2000, the Appellants filed a motion for leave to amend their notice of appeal to add Moore as an appellee. As such, the Court must determine (1) whether Moore is a necessary party under Superior Court Civil Rule 19(a); (2) if so, whether the Appellants' notice of appeal can be amended to include Moore after the time for perfecting the appeal has elapsed under Superior Court Civil Rule 15; and (3) in the event that joinder is not feasible, whether Moore is an indispensable party and should be joined under Superior Court Civil Rule 19(b). To answer these questions, the Court turns to the decision in Sussex Medical Investors v. Delaware Health Resources Board for guidance.
The Court notes that Superior Court Civil Rules 15 and 19 apply to administrative appeals to the Superior Court. See Sussex Med. Investors v. Delaware Health Resources Bd., Del. Super., C.A. No. 96A-10-009, Coach, J. (Apr. 8, 1997) (Letter Op.).
Del. Super., C.A. No. 96A-10-009, Cooch, J. (Apr. 8, 1997) (Letter Op). In this case, the appellant. SMI. appealed the Delaware Health Resources Board decision, which denied it a Certificate of Need in order to construct a nursing home but issued Certificates of Need to five other applicants. Because none of the successful applicants were made parties to the appeal, the Board moved to dismiss the appeal.
According to Sussex Medical, the first step in determining whether absent parties are needed for just adjudication is to analyze the parties' interests under Superior Court Civil Rule 19(a). Rule 19 (a) provides in part:
Sussex Medical at 5.
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.
Super. Ct. Civ. R. 19(a).
As conceded by the Appellants in their supplemental briefing, the Court finds that Moore is a necessary party under Rule 19(a). Due to Moore's interest in the action, as holder of a license whose issuance could be revoked, Moore's absence would impair or impede on its ability to protect that interest.
As such, the next question under Sussex Medical is whether Moore can be feasibly joined under Rule 15. Before addressing the specifics, it is important to set up some time lines in terms of the appeal. Because the Appellants were parties, they were entitled to notice of DABCC's decision. Under 29 Del. C. § 10128 (d), "[e]very final order [by an agency] shall immediately be mailed or delivered to each party and each other person requesting it." DABCC's decision was dated October 7, 1999, and while the decision was not directly mailed to the Appellants, a copy was faxed to them on October 18, 1999. According to 29 Del. C. § 10142 (b), the Appellants had 30 days from the day they received notice of the decision to file the appeal.
See Alfred I. duPont Sch. Dist., supra, notes 15-16 and accompanying text.
The Appellants argue that as parties, they were entitled to copies of the DABCC's decision. They claim that although a copy of the decision was faxed to them on October 18, 1999, it did not constitute being "mailed or delivered" under 29 Del. C. § 10128 (d). As such, they argue that the statute of limitations has not begun to run. The Court finds their argument meritless. While the decision was not mailed to them, they did receive notice of the decision when it was delivered to them via fax on October 18, 1999. As such, the Court finds that the statute of limitations began to run as of that date.
The Court notes that this case is distinguishable from Alfred I. duPont School District, supra, notes 14-16, in that because the Supreme Court found that the protestors were parties and were therefore entitled to notice of the Commission's decision and notice was not given to such parties, the Commissions' decision was not "final and conclusive" under 4 Del. C. § 541 (c). But, in contrast, notice here was provided to the Appellants by fax. As such, DABCC's decision was final for appeal purposes.
The Appellants filed their notice of appeal on November 8, 1999, and they filed their motion for leave to amend their notice of appeal on February 2, 2000. Obviously, the motion for leave to amend did not fit within the 30 days appeal period. As such, in order to amend the notice of appeal to add Moore as an appellee, the amendment must relate back to the filing date of the original appeal under Rule 15.
A failure to perfect an appeal within the allotted time is fatal. because the time for taking an appeal is jurisdictional, and a notice of appeal generally cannot be amended or modified after expiration of the time for perfecting the appeal. Sussex Medical at 6.
Amendments under Rule 15(a) are to be freely given, but this "liberality must be tempered by the requirements of subsection (c)." Rule 15(c) provides that an amendment filed after the running of the statute of limitations, and in the instant case, the 30 day period for perfecting an appeal, relates back to the original filing date when:
Sussex Medical at 7.
Sussex Medical at 7.
(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by statute or these Rules for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Super. Ct. Civ. R. 15(c).
There appears to be no dispute that the elements under Rule 15(c)(2) and (3)(A) have been met here. The question remains whether Moore "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party." The "knew or should have known" requirement of Rule 15(c) is limited to situations where but for a mistake concerning one's identity, the proper party would have been sued. As such, the Court must determine whether Moore knew, or should have known, that it would have been made a party to the original appeal but for the Appellants' mistake concerning its identity as a potential appellee. This inquiry breaks down to two components. The first prong is met if the Appellants were mistaken as to the identity of the proper party. The second is met if Moore knew of the mistake.
Sussex Medical at 8 ( quoting Mullen v. Alarmguard of Delmarva, Inc., Del. Supr., 625 A.2d 258. 265 (1993)). See Johnson v. Paul's Plastering, Inc., Del. Super., C.A. No. 98C-05-088, Quillen. J. (July 30. 1999) (Letter Op.).
See Mullen, 625 A.2d at 266.
Preston v. Board of Adjustment of New Castle County, Del. Super., C.A. No. 00A-02-006, Barron, J. (July 1, 2000) (Mem. Op.).
See Preston at 4.
See Preston at 4. The facts in Preston are similar to those in the present case. In Preston, the Board of Adjustment granted a Special Use Permit to AT T to erect a telecommunications monopole. The application was opposed by the petitioners, who filed a petition for a writ of certiorari to review the Board's decision. In filing, the petitioners named the Board but not AT T as the respondent, and the Board filed a motion to dismiss the petition for failure to join an indispensable party. The Court found that the requirements in Rule 15(c) had not been met in order to relate the amendment of joinder of AT T back to the complaint. In regards to Rule 15(c)(3)(B), the Court found that the petitioners were present at the hearing before the Board and were well aware of the identity of AT T as the applicant for the Special Use Permit. But, the petitioners further argue that they based their complaint on other appeals from the Board of Adjustment, which did not name any respondent other than the Board itself. Despite the fact that the petitioners did not look at the full caption of at least one of the decisions that they named. which included more than the Board as a listed respondent, the Court found that it did not negate the need to name the real party in interest and that the failure to name AT T was a mistake of law, not a mistake of identity. Preston at 4 and n. 30.
This is not a case where Moore had not participated in the hearing below and thus was unknown to the Appellants nor was the identity of a proper party unknown or difficult to ascertain. The "mistake" here was the failure of the Appellants' counsel to name Moore as a party, not the inability to locate or identify a party. While the Court does not believe that this was egregious conduct by counsel and finds that the naming of the Board as appellee was a logical choice based on the Appellants' arguments concerning DABCC's decision, it was also clear to all involved that the real party in interest was Moore, and it was Moore's rights that would be most affected by a reversal of the Board's decision. Moore's identity was not disguised or hidden, and its role before the Board was fully appreciated by all participants. Moore had no reason to believe that there would be any confusion over its identity, and it was not unreasonable for Moore to believe that the failure to name it as a party was simply a strategical decision by the Appellants. As such, the Court finds that an inadvertent mistake by counsel is not one contemplated by Rule 15(c)(3)(B) and that the necessary requirements of the Rule have not been met.
See Johnson at 2.
According to Sussex Medical, because joinder of Moore is not feasible under Rule 15(c), the Court must now look to Rule 19(b) to determine if in equity and good conscience whether this action may nevertheless continue despite the absence of Moore as a party to the appeal or whether it should be dismissed because Moore would be considered indispensable. Rule 19(b) sets forth four factors which are interdependent and which must be considered in relation to each other as well as to the facts of the case:
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 remedy if the action is dismissed for nonjoinder.
See Sussex Medical at 8 and Super. Ct. Civ. R. 19(b).
Sussex Medical at 8.
Super. Ct. Civ. R. 19(b).
a. To What Extent a Judgment Rendered in Moore's Absence Might Be Prejudicial to Moore
Under this factor, the Court finds that it would be extremely prejudicial to Moore to be absent from the proceedings. It is the issuance of Moore's license that hangs in the balance. Revocation of its license and to its livelihood would result in prejudice if Moore were unable to represent its interest in the appeal. In addition, the Court does not find that DABCC would adequately protect Moore's interests in Moore's absence. While the same end result may be pursued, the interests are different and Moore has more at stake. If the Appellants were successful on appeal, it is likely that the continuation of Moore's business would be in jeopardy, and the potential prejudice to Moore is significant.b. To What Extent the Prejudice can be Lessened or Avoided by Protective Provisions in the Judgment, by the Shaping of Relief or Other Measures
Next, the Court finds that the prejudice to Moore cannot be lessened or avoided. If the Appellants were to prevail on appeal and DABCC's decision was reversed, then Moore's license would be revoked. There is no middle ground to lessen the blow. Moreover, the Court finds no merit in the Appellants' suggestion that Moore could eliminate the prejudice by simply moving to intervene under Superior Court Civil Rule 24. While perhaps true, as discussed fully in Sussex Medical, Moore has no duty to intervene and the fact that Moore chooses not to intervene will not preclude a finding that it is indispensable under Rule 19.
See Sussex Medical at 10; Preston at 5.
c. Whether a Judgment Rendered in Moore's Absence will be Adequate
According to the analysis in Sussex Medical for this factor, Moore, who would be directly affected by a judgment on the merits of this appeal, must be included in the appeal for the judgment to be adequate. Since Moore cannot be made a party to the appeal, any decision would be inadequate.d. Whether the Appellants would have an Adequate Remedy If the Action was Dismissed for Nonjoinder
Because there are no other remedies to pursue, the Appellants will not have an adequate remedy if the appeal was dismissed. But, while "the existence of an alternative forum available to the plaintiff is clearly important in applying the `equity and good conscience' mandate of subdivision (b)," "it is not determinative." And when the Court considers the equity and fair play associated with the unique facts of this case, they clearly fall against the Appellants. Besides the fact that there was nothing to prevent the Appellants from naming Moore as a party, it is important to remember that but for the failure of DABCC to follow their own rules, the Appellants would have had no right to be before them or this Court. The Appellants had failed to obtain the required number of signatures to activate a formal protest and thus had no right to dispute the application. In spite of this jurisdictional failure, DABCC allowed the Appellants to present their arguments. This inappropriate and unwise action gave the Appellants "party" status under the APA and thus a road to this Court. Putting it in baseball terms, the Appellants struck out, but due to the umpire's error, they have been able to get to third base. This Court can find no basis in equity, good conscience or fair play to let them now score the winning run.
The Writ of Mandamus, which was dismissed by this Court, was affirmed on appeal in the Delaware Supreme Court. See Trone v. Delaware Alcoholic Beverage Control Commission, Del. Supr., No. 588. 1999, Walsh, J. (July 17, 2000) (ORDER).
Sussex Medical at 11.
For the reasons set forth above, the Appellants' motion for leave to amend their notice of appeal is DENIED. And, the Court finds that by weighing all the factors in equity and good conscience, Moore is an indispensable party under Rule 19(b). As a result, DABCC's motion to dismiss for failure to join an indispensable party under Rule 19 is GRANTED.