Rule 19 - Joinder of Persons Needed for Just Adjudication(a) Persons to Be Joined if Feasible. 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 his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his 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 his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. (b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to him 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. (c) Pleading Reasons for Nonjoinder. Any pleading asserting a cause of action for relief shall state the names, if known to the pleader, of any persons described in subdivision (a)(1)-(2) hereof who are not joined, and the reasons why they are not joined. (d) Exception of Class Actions. This rule is subject to the provisions of Rule 23 in class actions. This Rule 19(a) is the same as the Federal Rule. The principle behind this Rule is that whenever possible persons materially interested in the action should be joined so that they may be heard and a complete determination had. When this joinder is not possible, the case should be examined pragmatically and a choice made between proceeding without the particular interested party or dismissing the action. Dean Lightsey, in Code Pleading, notes that the number of cases in which there is truly an "indispensable party" in whose absence the court should not proceed are very rare. Id. at 109-110. The Rule provides for joining such a party as a defendant or involuntary plaintiff similar to Code §15-5-40. Case law interpreting the Federal Rule makes it clear that the absence of a party does not automatically deprive the court of jurisdiction to resolve the interests of the parties before it. This changes some older state precedents which have held that such defects were jurisdictional. See Green v. Niver, 43 S.C. 359, 21 S.E. 263 (1894); Gooch v. Elliott, 120 S.C. 245, 113 S.E. 72 (1922).
When a party described in Rule 19(a) cannot be joined, the court must decide whether to proceed with the case in that party's absence. This Rule 19(b) provides the practical factors for the court to consider in reaching its determination, and are not meant to be exclusive. Only if pragmatic considerations strongly indicate that it would be preferable to dismiss the action rather than proceed with the parties before it, should the court conclude that the absent party is truly "indispensable." Under Rule 12(h)(1) the lack of an "indispensable" party in this sense can be raised as late as the trial on the merits. However, if the purpose of the motion is to protect the movant from an apparently unfavorable situation, rather than to protect the absent party, the court may properly consider delay in making the motion as a reason against dismissing the action.
This Rule 19(c) is substantially the same as the Federal Rule. Rule 19(d) simply refers to Rule 23 for joinders in class actions.