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State Attorney General Bruce Botelho v Mark & Sue Griffin (06/22/2001) sp-5424
State Attorney General Bruce Botelho v Mark & Sue Griffin (06/22/2001) sp-5424
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
BRUCE M. BOTELHO, ATTORNEY GENERAL )
STATE OF ALASKA, BRUCE M. BOTELHO, ) Supreme Court No. S-9535
Attorney General on behalf of the )
members of ALASKAN SPORTS BINGO )
JOINT VENTURE, Anchorage Sports )
Association, Inc., Bartlett High )
School Boys' Basketball Booster )
Club, Chugiak High School Boys' )
Basketball Booster Club; Mat-Su )
Crime Stoppers, Inc., and Triam )
Sports Association, Inc.; the )
members of the LUCKY STRIKE BINGO )
JOINT VENTURE, Alaska Dance )
Theater, Inc., Cook Inlet Darting )
Club, Victims for Justice; the )
following members of the NORTHERN )
LIGHTS GAMING CO-OP, Alaska Center )
for the Environment, Alaska )
Laborers' Training School, Barrier )
Free Recreation, Mabel T. Caverly )
Senior Center, Inc., and West High )
Athletic Alumni; and THE PUBLIC OF )
THE STATE OF ALASKA, )
)
Petitioners, )
) Superior Court No.
v. ) 3AN-98-9211 CI
)
MARK and SUE GRIFFIN, husband and ) O P I N I O N
wife, in their personal capacity, )
and d.b.a. ALASKA BINGO SUPPLY, )
INC.; ALASKA BINGO MANAGEMENT; )
BINGO MANAGEMENT, INC.; GRIFFCO, )
INC.; HOT RODS; MANAGEMENT )
COMPANY; and THE ALASKA CHARITABLE )
GAMING ASSOCIATION, INC., )
)
Respondents. ) [No. 5424 - June 22, 2001]
___________________________________)
MARK GRIFFIN, Individually, and )
SUE GRIFFIN, Individually, as )
Husband and Wife, )
)
Third-Party )
Petitioners, )
)
v. )
)
STEPHEN C. (NEIL) SLOTNICK, )
Individually, and LARRY E. MEYERS, )
Individually, )
)
Third-Party )
Respondents. )
___________________________________)
Petition for Review from the Superior Court of
the State of Alaska, Third Judicial District, Anchorage, Dan A.
Hensley, Judge.
Appearances: Dan N. Branch, Assistant
Attorney General, Bruce M. Botelho, Attorney General, Juneau, for
Petitioners. Laurel J. Peterson, Laurel J. Peterson, P.C.,
Anchorage, for Respondents and Third-Party Petitioners Mark and Sue
Griffin, and Respondents Alaska Bingo Management, Griffco, Inc.,
Hot Rods, and Management Company. Diane F. Vallentine, Natasha M.
Summit, Jermain, Dunnagan & Owens, P.C., Anchorage, for Respondent
Alaska Bingo Supply, Inc. Terry C. Aglietti, Aglietti & Offret,
Anchorage, for Respondent Alaska Charitable Gaming Association,
Inc.
Before: Matthews, Eastaugh, Bryner, and
Carpeneti, Justices. [Fabe, Chief Justice,
not participating.]
MATTHEWS, Justice.
I. INTRODUCTION
The Alaska attorney general filed suit against Mark and
Sue Griffin on behalf of various charitable organizations, alleging
that the Griffins had violated the state's gaming laws by charging
the charities unreasonably high expenses. Citing this court's
decision in State v. First National Bank of Anchorage, [Fn. 1] the
superior court held that the attorney general could not maintain
damages claims on the charities' behalf without their consent. As
most of the affected charities had dismissed or compromised their
claims against the Griffins, the superior court granted the
Griffins summary judgment on those claims. Because the attorney
general's authority to enforce charitable trusts gives him the
power to assert a charity's cause of action if the charity
dismisses or compromises a claim against a third party for less
than the amount the charity is owed under the state's gaming laws,
we hold that the superior court erred in granting summary judgment
against the state.
II. FACTS AND PROCEEDINGS
Alaska law permits qualified organizations to join
together and conduct charitable gaming as Multiple-Beneficiary-
Permittees ("MBPs"). [Fn. 2] This case centers upon two MBPs, both
formed in 1995: Frontier Bingo Joint Venture, later renamed Alaska
Sports Joint Bingo Venture ("Alaska Sports"), and Northern Lights
Gaming Co-Op ("Northern Lights"). [Fn. 3] Respondents concede that
Sue Griffin was the manager of Alaska Sports' and Northern Lights'
gaming operations, and that the MBPs purchased gaming supplies and
leased facilities from Alaska Bingo Supply, Inc., which was owned
by Mark Griffin.
In September 1998 the Alaska attorney general filed suit
against Mark and Sue Griffin, Alaska Charitable Gaming Association,
Inc. (a member of Northern Lights and allegedly a "sham"
organization controlled by the Griffins), and various other
corporate defendants (collectively, the "Griffins"). The attorney
general's complaint, filed on behalf of the public and the member
charities of the MBPs, alleged, among other things, that the
Griffins had failed to turn over the statutory minimum percentage
of gaming proceeds to Alaska Sports' member charities and that the
Griffins had charged the member charities of the two MBPs inflated
and excessive fees and rents.
After the attorney general filed his complaint, most of
the affected charities were dismissed from the litigation at their
own request. Three member charities of Alaska Sports obtained an
order dismissing them from the case with prejudice. [Fn. 4] Four
member charities of Northern Lights obtained an order dismissing
their claims without prejudice. [Fn. 5] West High Alumni
Association -- originally a member of Alaska Sports, and later a
member of Northern Lights -- filed a notice of dismissal with
prejudice. Of the Alaska Sports and Northern Lights member
charities whom the attorney general had sought to represent,
accordingly, all had withdrawn from the case except for the
Anchorage Sports Association and Mat-Su Crime Stoppers.
In response to one or more of the Griffins' various
motions for summary judgment, Superior Court Judge Dan A. Hensley
held that this court's decision in State v. First National Bank of
Anchorage [Fn. 6] barred the attorney general from seeking monetary
damages on behalf of any charity that had not given its consent to
the suit. Accordingly, Judge Hensley issued an order barring the
state from bringing damages claims on behalf of those charities
that had "opted out"of the proceedings by dismissing their claims
against the Griffins. The state appeals.
III. STANDARD OF REVIEW
"This court will uphold summary judgment only if the
record presents no genuine issues of material fact and 'the moving
party was entitled to judgment on the law applicable to the
established facts.'"[Fn. 7] In making this determination, all
reasonable inferences must be drawn in favor of the non-moving
party. [Fn. 8] If in reviewing the summary judgment this court
must answer questions of law, this court's duty is to "adopt the
rule of law that is most persuasive in light of precedent, reason,
and policy."[Fn. 9]
IV. DISCUSSION
A. Standing
Preliminarily, the Griffins argue that the attorney
general does not have standing to bring this suit, because the
statutory power to police charitable gaming is entrusted
exclusively to the Department of Revenue. We find this contention
to be without merit.
"Generally, an attorney general has those powers which
existed at common law except where they are limited by statute or
conferred upon some other state official."[Fn. 10] Under the
common law, the attorney general has the power to bring any action
which he thinks necessary to protect the public interest, a broad
grant of authority which includes the power to act to enforce
Alaska's statutes. [Fn. 11] Alaska's statutes, in turn, give the
attorney general the power to "prosecute all cases involving
violation of state law, and file informations and prosecute all
offenses against the revenue laws and other state laws where there
is no other provision for their prosecution."[Fn. 12] Although
the Department of Revenue has the statutory authority to administer
the provisions of AS 05.15, the state's gaming law, [Fn. 13] and to
issue orders prohibiting acts in violation of those provisions,
[Fn. 14] Alaska's statutes do not give the Department of Revenue
the power to prosecute offenses against the gaming laws. The
Department of Revenue's authority to proceed administratively
against gaming law offenses thus does not limit the attorney
general's statutory and common law authority to bring suit to
uphold the state's gaming laws.
B. Consent
1. Can the attorney general litigate a charity's claim
against a third party without the charity's consent?
If the attorney general has the authority to assert a
charity's damages claims against a third party, that power arises
out of the attorney general's historical role in enforcing
charitable trusts. Under Alaska law, a gaming operator's
authorized expenses must be "bona fide [and] reasonably necessary"
and may not exceed seventy percent of the adjusted gross income of
pull-tab games or ninety percent of the adjusted gross income from
non-pull-tab games. [Fn. 15] The games' net proceeds, in turn,
must be dedicated to "political, educational, civic, public,
charitable, patriotic, or religious uses in the state."[Fn. 16]
By requiring a portion of the money spent on charitable gaming to
benefit the public generally, Alaska's gaming laws create the
effective equivalent of a charitable trust. [Fn. 17] The attorney
general has the power to sue to enforce charitable trusts on behalf
of the trusts' beneficiaries, [Fn. 18] who lack standing to pursue
such a claim themselves. [Fn. 19] When the trustees of a
charitable trust divert a trust's property to purposes other than
those for which it was given, the attorney general is thus the
proper party to institute such proceedings as may be necessary to
stop or redress the wrong. [Fn. 20]
Under certain circumstances, the attorney general's
authority to enforce charitable trusts gives him the power to
prosecute on behalf of the ultimate charitable beneficiaries a
charity's claim against a third party. So long as the charitable
trustees fulfill their legal obligation to safeguard the interests
of the trust's beneficiaries, there is ordinarily no need for the
attorney general to involve himself in a charity's suit against a
third party. [Fn. 21] But if a charity's trustees dismiss or
compromise a charity's claim against a third party for less than
the charity is due under the state's gaming laws, the trustees are,
in essence, disposing of the charity's property -- i.e., disposing
of the charity's cause of action -- for a purpose other than that
for which the property was given. [Fn. 22] To prevent charitable
trustees from improperly disposing of a charity's cause of action,
the attorney general must be allowed to intervene to ensure
adequate advocacy of the charity's claim. [Fn. 23]
Although it would be possible for the attorney general to
sue the charitable trustees to compel them to sue the third party,
[Fn. 24] to require the attorney general to do so in this case
would introduce unnecessary parties and thus unnecessary procedural
complexities. [Fn. 25] Accordingly, we hold that the attorney
general's authority to enforce charitable trusts gives him the
power to assert the charities' damages claims against the Griffins.
[Fn. 26]
Relying on this court's decision in State v. First
National Bank of Anchorage, [Fn. 27] the Griffins argue that the
attorney general cannot pursue the charities' damages claims
without the charities' consent. In First National Bank, however,
the attorney general sought to litigate the damages claims of
private individuals, not of charities. [Fn. 28] Because the
attorney general only had the authority to litigate those
individuals' damages claims as their representative, we held that
his power to litigate their claims was wholly dependent upon their
consent. [Fn. 29]
In litigating a charity's damage claim, however, the
attorney general does not act as the representative of the
charitable trustees. [Fn. 30] The attorney general represents,
instead, the interests of the charitable beneficiaries. [Fn. 31]
Because the attorney general's authority to litigate a charity's
damage claim is not derived from his role as the charitable
trustees' representative, his power to litigate such a claim is not
dependent upon the charitable trustees' consent.
Although the Griffins' alleged wrongdoing may have
involved a breach of their duties to specific charitable
permittees, those charitable organizations cannot unilaterally
waive the Griffins' obligation to obey the state's gaming laws. As
a New York court stated, in imposing restrictions on the conduct of
a professional organization raising funds for charitable groups,
The fact that [the charities] expressly
agreed to the terms of the contracts should not preclude the
Attorney General from protecting the public's rights in this
situation. The contracts with the non-profit organizations are not
merely bilateral, but rather establish a triangular relationship
with the public as the third party whose interests should be
protected.[ [Fn. 32]]
The Griffins' involvement in the charities' gaming operations also
creates a "relationship with the public,"whose interests the
attorney general may protect in the event that the affected
charities do not.
2. Did the affected charities dismiss or compromise
their claims against the Griffins for less than they were due under
the state's charitable gaming laws?
The attorney general's complaint alleged, among other
things, that the Griffins failed to turn over the statutorily
defined minimum percentage of gaming revenues to the Alaska Sports
member charities and that the Griffins charged the member charities
of the two MBPs inflated and excessive fees and rents.
Evidence to support the state's first allegation is
provided by the sworn affidavit of Jeff Prather, an employee of the
Department of Revenue, who testified that the Griffins failed to
turn over the required statutory percentage of their gaming
proceeds to the Alaska Sports member charities -- a deficit which
neared $500,000.
There is also evidence from which to infer that the
Griffins charged the Northern Lights member charities unreasonably
high, and thus statutorily prohibited, fees and rents. In their
defense, the Griffins argue that all of the affected charities
agreed that the fees and rents were reasonable. But this is not
uncontested. West High Alumni Association complained about the
increased rent charged the charities. Further, it was expelled
from the Northern Lights Gaming Co-Op after doing so. Although
Northern Lights' minutes suggest that West High Alumni
Association's membership in the MBP was terminated as a cost-saving
measure, on summary judgment all reasonable inferences must be
drawn in favor of the state. [Fn. 33] The timing and circumstances
of West High Alumni Association's expulsion, including the presence
and participation of the Griffins' personal attorney at the board
meeting at which it occurred, support an inference that the
Griffins were retaliating against charities that complained that
the Griffins' fees were too high.
Northern Lights' joint venture agreement, moreover, gave
the Alaska Charitable Gaming Association the right to expel any
non-sponsoring member charity from the MBP. Given the evidence
that the Alaska Charitable Gaming Association was a sham
organization controlled by the Griffins, it is not unreasonable to
infer that any other charity which agreed to the fees charged by
the Griffins did so out of fear that it, too, would be subject to
retaliation if it did not.
With the possible exception of West High Alumni
Association, there is no evidence that any of the affected
charities received any compensation for withdrawing their claims
against the Griffins. Although West High Alumni Association
settled its claim, the Griffins presented no evidence as to the
value of that settlement. West High Alumni Association was
apparently insolvent, and there was evidence that the Griffins used
the threat of adverse attorney's fees awards to persuade charities
to withdraw from the case against them. Under these circumstances,
it is reasonable to infer that West High Alumni Association, too,
received little or nothing in return for settling its claim.
As the attorney general has the authority to assert a
charity's cause of action against a third party if that claim was
dismissed or compromised for less than the charity was due to
receive under the state's charitable gaming laws, and there was
evidence in the record that the affected charities received less
than they were due in exchange for dismissing or compromising their
claims against the Griffins, the superior court erred in granting
summary judgment against the state.
C. Should the Charities Be Joined Under Civil Rule 19(a)?
The parties agree that the charities that have opted out
of the case are not necessary parties. After analyzing Civil Rule
19(a) in the context of this case, we reach the same conclusion.
Under Civil Rule 19(a), a party whose joinder will not
deprive the court of jurisdiction over the subject matter of the
action shall be joined 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.
In this case, joinder is not compelled by Rule 19(a)(1);
the only monetary relief sought is compensation from the Griffins,
which can be obtained without the charities' participation. [Fn.
34]
Joinder is also not compelled here by Rule 19(a)(2)(i).
In a case interpreting Rule 19(a)(2)(i), this court held that "if
the beneficiary's interest will not as a practical matter be
impaired by the trustee's absence, then neither the trustee nor the
beneficiary are necessary parties."[Fn. 35] Although the
interests of a private trust's beneficiary generally cannot be
protected in the absence of both the trustee and the beneficiary,
[Fn. 36] here the situation is different. The trustees of the
charities in question have abandoned or compromised their legal
claims against the Griffins, claims which the attorney general
still seeks to advance. Because the attorney general will
adequately represent the interests of the beneficiaries, the
trustees' absence does not impair the beneficiaries' interests.
Accordingly, the trustees of the charities are not necessary
parties under Rule 19(a)(2)(i).
Joinder is also not compelled by Rule 19(a)(2)(ii).
Because Rule 19(a)(2)(ii) only applies to parties who "claim[] an
interest relating to the subject of the action,"it applies neither
to parties expressly disclaiming an interest in an action [Fn. 37]
nor to parties who remain silent despite an opportunity to join an
ongoing action. [Fn. 38] Those charities that have had their
claims dismissed with prejudice have expressly disclaimed an
interest in the ongoing litigation, and those charities that have
had their claims dismissed without prejudice have chosen to remain
silent despite their opportunity to join an ongoing action.
Accordingly, joinder of neither group is necessary under Rule
19(a)(2)(ii).
V. CONCLUSION
Where a charity dismisses or compromises a claim against
a third party for less than it is due to receive under the state's
gaming laws, the attorney general's authority to enforce charitable
trusts gives him the power to assert the charity's cause of action.
Drawing all reasonable inferences in favor of the state, the merit
of the charities' claims against the Griffins presents, at a
minimum, a genuine issue of material fact. Accordingly, we hold
that the attorney general may pursue a damages claim against the
Griffins without the consent of the affected charities, and REVERSE
the superior court's grant of summary judgment.
FOOTNOTES
Footnote 1:
660 P.2d 406 (Alaska 1982).
Footnote 2:
See AS 05.15.145.
Footnote 3:
Alaska Sports' original members were the Anchorage Sports
Association, Inc., Triam Sports Association, Inc., Chugiak High
School Boys' Basketball Booster Club, Bartlett High School Boys'
Basketball Booster Club, and West High Athletic Alumni Association.
West High Alumni Association was replaced by Mat-Su Crime Stoppers,
Inc., in 1996.
Northern Lights' original members were the Alaska Center
for the Environment, Alaska Charitable Gaming Association, Inc.,
Alaska Laborers' Training School, Barrier Free Recreation, and
Mabel T. Caverly Senior Center, Inc. West High Alumni Association
joined Northern Lights in 1996, and was dropped from membership in
1997 after complaining about an increase in the rent charged the
charities.
The attorney general also brought suit on behalf of the
three member charities of the Lucky Strike Bingo Joint Venture:
Alaska Dance Theater, Inc., Cook Inlet Darting Club, and Victims
for Justice. The record does not indicate that any of these three
charities have withdrawn from the case, however.
Footnote 4:
Bartlett High School Boys' Basketball Booster Club, Chugiak
High School Boys' Basketball Booster Club, and Triam Sports
Association.
Footnote 5:
Alaska Center for the Environment, Alaska Laborers' Training
School, Barrier Free Recreation, and Mabel T. Caverly Senior
Center.
Footnote 6:
660 P.2d 406 (Alaska 1982).
Footnote 7:
Bishop v. Municipality of Anchorage, 899 P.2d 149, 153 (Alaska
1995) (quoting Newton v. Magill, 872 P.2d 1213, 1215 (Alaska
1994)).
Footnote 8:
See id.
Footnote 9:
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
Footnote 10:
Public Defender Agency v. Superior Court, 534 P.2d 947, 950
(Alaska 1975); see AS 44.23.020(b)(8) ("The attorney general shall
. . . perform other duties required by law or which usually pertain
to the office of attorney general in a state.").
Footnote 11:
See Berger v. State, Dep't of Revenue, 910 P.2d 581, 585
(Alaska 1996).
Footnote 12:
AS 44.23.020(b)(4).
Footnote 13:
See AS 05.15.010.
Footnote 14:
See AS 05.15.610.
Footnote 15:
See AS 05.15.160(a), (c), (d).
Footnote 16:
AS 05.15.150(a).
Footnote 17:
See City of Palm Springs v. Living Desert Reserve, 82 Cal.
Rptr. 2d 859, 865-66 (Cal. App. 1999) ("The elements essential to
[the creation of a charitable trust include] . . . a charitable
purpose promoting the welfare of mankind or the public at large, of
a community, or of some other class of persons which is indefinite
as to numbers and individual identities.").
Footnote 18:
See Restatement (Second) of Trusts sec. 391 (1959) ("A suit
can
be maintained for the enforcement of a charitable trust by the
Attorney General or other public officer . . . .").
Footnote 19:
See Arman v. Bank of America, N.T. & S.A., 88 Cal. Rptr. 2d
410, 416 (Cal. App. 1999) ("The Attorney General is the only party
with standing to represent the intended beneficiaries of a
charitable trust."); Restatement (Second) of Trusts sec. 391, cmt.
d
("A suit for the enforcement of a charitable trust cannot be
maintained by persons who have no special interest in the
enforcement of the trust. The mere fact that as members of the
public they benefit from the enforcement of the trust is not a
sufficient ground to entitle them to sue, since a suit on their
behalf can be maintained by the Attorney General.").
Footnote 20:
See Voelker v. Saint Louis Mercantile Library Ass'n, 359
S.W.2d 689, 694 (Mo. 1962) ("[T]he Attorney General can maintain a
suit to prevent a diversion of [charitable] property to other
purposes than those for which it was given.").
Footnote 21:
See, e.g., Halladay v. Verschoor, 381 F.2d 100, 106 (8th Cir.
1967) (holding that attorney general is proper, but not necessary,
party to trustees' suit against third party).
Footnote 22:
The same could be true under other similar circumstances,
e.g., if the charitable trustees simply ignored a potentially valid
claim, or if the attorney general suspected ongoing collusion
between the trustees and gaming operators.
Footnote 23:
See Voelker, 359 S.W.2d at 694.
Footnote 24:
See Restatement (Second) of Trusts sec. 392, cmt. a ("A suit
in
equity can be maintained by the Attorney General to compel the
trustees of a charitable trust to perform their duties as trustees
. . . .").
Footnote 25:
See Part IV.C, infra.
Footnote 26:
See In re Estate of Horton, 90 Cal. Rptr. 66, 68-69 (Cal. App.
1970) (holding that attorney general has no broad right to
participate in charity's contractual undertakings, but has the
right to attack a trust's compromise agreement by alleging abuse of
trust management); People ex rel. Scott v. Police Hall of Fame,
Inc., 376 N.E.2d 665, 670-71 (Ill. App. 1978) (holding that where
charity compromised its claim against corporate fund raisers who
had retained unlawfully high percentage of charitable
contributions, attorney general had right to sue for damages);
Lefkowitz v. Lebensfeld, 415 N.E.2d 919, 922 (N.Y. App. 1980)
(holding that attorney general may have standing to sue in place of
charitable trustees if trustees refuse demand to institute such a
suit themselves); Brown v. Concerned Citizens for Sickle Cell
Anemia, Inc., 382 N.E.2d 1155, 1157 (Ohio 1978) (holding that where
charity did not protest the retention of all bingo proceeds by
game's operators, attorney general's authority to sue to enforce
charitable trusts gave him authority to maintain suit for damages
against operators).
Footnote 27:
660 P.2d 406 (Alaska 1982).
Footnote 28:
See id. at 416-17.
Footnote 29:
See id.
Footnote 30:
See Murphey v. Dalton, 314 S.W.2d 726, 731 (Mo. 1958) ("The
plain fact is, the attorney general is not and, in many instances,
could not properly be the attorney for the trustee of a public
charitable trust. He is the attorney for the public, not the
attorney for the trustee."(italics omitted)).
Footnote 31:
See id.
Footnote 32:
State v. Francis, 407 N.Y.S.2d 611, 614 (N.Y. Sup. Ct. 1978),
aff'd, 412 N.Y.S.2d 340 (N.Y. App. Div. 1979).
Footnote 33:
See Bishop v. Municipality of Anchorage, 899 P.2d 149, 153
(Alaska 1995).
Footnote 34:
See Martech Constr. Co. v. Ogden Environmental Servs., Inc.,
852 P.2d 1146, 1154 (Alaska 1993) ("[I]t must be noted that
complete relief refers to relief as between the parties already
parties, and not as between a party and the absent person whose
joinder is sought."(quoting 3A Moore's Federal Practice 19.07-1[1],
at 19-93--96 (2d ed. 1991))).
Footnote 35:
Matter of Pacific Marine Ins. Co. v. Harvest States Coop., 877
P.2d 264, 269 (Alaska 1994).
Footnote 36:
See id.
Footnote 37:
See Boczon v. Northwestern Elevator Co., 652 F. Supp. 1482,
1486 (E.D. Wis. 1987).
Footnote 38:
See ConnTech Development Co. v. University of Connecticut
Educ. Properties, Inc., 102 F.3d 677, 683 (2d Cir. 1996) (holding
that party that has "clearly declined to claim an interest in the
subject matter of th[e] dispute"is not a necessary party); Gateway
Associates, Inc. v. Essex-Costello, Inc., 380 F. Supp. 1089, 1095
(N.D. Ill. 1974).
