City of Ferguson, Missouri v. Keilee Fant, et al.

An interlocutory appeal lies from a denial of sovereign immunity to protect the sovereign’s dignitary interests. Under Fed.R.Civ.P. 19, a case may not proceed in the absence of a required-entity sovereign’s joinder, but rather must be dismissed. Merely considering the lawsuit’s merits without the requiredentity sovereign is itself a violation of sovereign immunity. A named, non-sovereign defendant has standing to seek dismissal on these grounds, as a means of vicariously protecting the required-entity sovereign’s dignitary interests. The federal appellate courts are divided over whether an interlocutory appeal lies from a refusal to dismiss for failure to join a required-entity sovereign. To the extent the matter is a purely legal question, does an interlocutory appeal lie from a refusal to dismiss for failure to join a required-entity sovereign?

An absent, required-entity sovereign’s liability cannot be litigated behind its back. In §1983 litigation against municipalities, state law determines whether the officials in question acted on behalf of a municipality or the State, based on the functions at issue. If the officials acted on behalf of the State, then any unlawful policy or custom was one of the State, not of the municipality. If, in a §1983 lawsuit against a municipality, state law vests final policymaking authority for the functions at issue with a non-party state entity, does that render the state entity a required-entity sovereign, thus mandating the case’s dismissal under Rule 19?