In the

United States Court of Appeals
                For the Seventh Circuit

No. 07-2190

C ARL A SKEW,
                                                  Plaintiff-Appellant,
                                  v.

S HERIFF OF C OOK C OUNTY, ILLINOIS, and
B ERNARDO L OPEZ,
                                      Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 06 C 4530—Samuel Der-Yeghiayan, Judge.



     A RGUED O CTOBER 31, 2008—D ECIDED M AY 18, 2009




 Before F LAUM, R OVNER, and W OOD , Circuit Judges.
  W OOD , Circuit Judge. In August 2004, appellant Carl
Askew was a pretrial detainee at the Cook County Jail.
Askew alleges that, during his incarceration, officer
Bernardo Lopez threw him to the ground without provo-
cation and, after Askew asked to be transferred to an-
other division in the jail for fear of harm from Lopez
and other guards, deliberately left him alone with other
inmates who later stabbed him. In August 2006, Askew
2                                                No. 07-2190

filed this civil rights lawsuit, alleging excessive force
and deliberate indifference claims against Lopez and a
municipal liability claim against the Sheriff. The district
court granted defendants’ motion to dismiss the case for
failure to join a party under F ED. R. C IV. P. 19. Dismissal,
however, is not the remedy that Rule 19 prescribes for
the problem here. We therefore reverse and remand for
further proceedings.


                              I
   Askew filed his claim on August 21, 2006, naming the
Sheriff, Lopez, and “Unidentified Cook County Sheriff’s
Office Correctional Officers” as defendants. In his initial
complaint, Askew alleged two theories of relief under 42
U.S.C. § 1983: first, that “the individual defendant” (pre-
sumably Lopez) violated his constitutional rights by
subjecting him to excessive force, and second, that this
person exhibited deliberate indifference to his safety. On
August 22, 2006, Askew apparently realized that he had
not indicated in what way either the unidentified officers
or the Sheriff had infringed his rights, and he therefore
filed a first amended complaint. The first amended com-
plaint modified counts I and II so that they were now
against “the individual defendants,” and it added a
third count based on Monell v. New York City Dept. of
Social Servs., 

(1978), against the Sheriff. The
Monell claim alleged that the actions of Lopez and
the unidentified officers were taken pursuant to de facto
policies or customs of the Sheriff’s office. On Novem-
ber 2, 2006, with leave of the court, Askew filed a second
No. 07-2190                                               3

amended complaint, in which he dropped the unidenti-
fied officers from his claim, leaving only Lopez and the
Sheriff as defendants. Following defendants’ motion for
a more definite statement and once again with leave
of the court, Askew filed a third amended complaint
clarifying that his § 1983 claims were based on alleged
violations of the Eighth and Fourteenth Amendments of
the U.S. Constitution. On January 31, 2007, defendants
filed a motion under FED. R. C IV. P. 12(b)(7), in which
they asked the court to dismiss Askew’s third amended
complaint because he had not joined Cook County as a
party to the action.
  The district court agreed that Cook County’s presence
was required under Rule 19. This, it thought, meant that
the action had to be dismissed outright. In so holding, the
court relied on the decision in Carver v. Sheriff of LaSalle
County, 

(7th Cir. 2003) (“Carver II”), which
held that in a claim against a Sheriff in Illinois the
relevant county is a required party. Therefore, the
district court reasoned, because the Sheriff was named
as a defendant in Askew’s action, Cook County was an
“indispensable” party. Askew’s failure to name Cook
County as a defendant, it concluded, was an omission
requiring dismissal of the action.


                             II
  This court has yet to decide whether to review decisions
applying Rule 19 de novo or for an abuse of discretion.
Davis Companies v. Emerald Casino, Inc., 

(7th
Cir. 2001); Thomas v. United States, 

, 666 (7th
4                                                 No. 07-2190

Cir. 1999); North Shore Gas Co. v. Salomon, Inc., 

,
648 (7th Cir. 1998); United States ex rel. Hall v. Tribal Dev.
Corp., 

, 478 (7th Cir. 1996) (collecting cases).
Because the district court made a legal error in its
analysis, however, our approach in the present case
would be the same under either standard of review.
We therefore postpone once again the resolution of the
question of the proper standard of review in Rule 19
cases for one where that issue matters to the outcome.
   The purpose of Rule 19 is to “permit joinder of all
materially interested parties to a single lawsuit so as to
protect interested parties and avoid waste of judicial
resources.” Moore v. Ashland Oil, Inc., 

, 1447
(7th Cir. 1990). Dismissal, however, is not the preferred
outcome under the Rules. Courts are “reluctant to
dismiss for failure to join where doing so deprives the
plaintiff of his choice of federal forum.” Davis 

. Before turning to the specifics of
Askew’s case, a brief review of the structure of Rule 19
is useful.
  Ever since the 1966 amendments to the Rule, it has
drawn a fundamental distinction between two kinds
of missing parties: those whose joinder is feasible and
those whose joinder is not feasible, because it would
defeat subject-matter jurisdiction, or the party is beyond
the personal jurisdiction of the court, or the party has
and makes a valid objection to venue. Rule 19(a)
addresses “persons required to be joined if feasible,” and
Rule 19(b) describes what the court must do if joinder
is not feasible. The first step, however, is to identify
No. 07-2190                                                5

which parties (if any) fall within the scope of the rule.
Rule 19(a)(1) defines who is a “required party”:
   (1) Required Party. A person who is subject to
   service of process and whose joinder will not deprive
   the court of subject-matter jurisdiction must be
   joined as a party 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 dis-
         posing 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 sub-
              stantial risk of incurring double, multiple, or
              otherwise inconsistent obligations because
              of the interest.
Once such a party has been identified, the Rule prescribes
what the court must do. Note that as part of the
Rule 19(a)(1) inquiry, the court has already considered
whether the absentee is a person who is subject to
service of process and whose joinder will not deprive
the court of subject-matter jurisdiction. For the set of
absentees who meet those criteria, it is Rule 19(a)(2)
that specifies the correct response by the court, not
Rule 19(b). Rule 19(a)(2) says that “[i]f a person has not
been joined as required, the court must order that the
person be made a party. A person who refuses to join as
a plaintiff may be made either a defendant or, in a
6                                              No. 07-2190

proper case, an involuntary plaintiff.” Finally, once
such a person has been brought into the case, if the new
party raises a valid objection to venue (an unlikely event,
now that 28 U.S.C. § 1391(a)(3) permits, as a default
venue in diversity cases, a district in which the
defendant is subject to personal jurisdiction), the court
must dismiss that party. Rule 19(a)(3).
  Only if the court determines that a party meets the
criteria of Rule 19(a)(1)(A) and (B), but the party cannot
be joined (usually because joinder would destroy
complete diversity or the court lacks personal juris-
diction over it) must the court turn to Rule 19(b) and
decide what to do about the problem. Even then, dis-
missal is not automatic. Instead, the court must “deter-
mine whether, in equity and good conscience, the action
should proceed among the existing parties or should
be dismissed.” Rule 19(b) spells out factors for the court
to consider in making that judgment, with an emphasis
on practical measures that will allow either the entire
suit or part of it to go forward.
  The district court in the present case found that Cook
County was a party that should be joined in the action
under Rule 19(a) because “the Sheriff . . . is included
as a Defendant in this action, [and the Sheriff] is an
elected official.” The court then jumped to the conclu-
sion that “there is no way to reasonably structure the
instant action in a fashion that would ensure the rights
of the County are protected in its absence,” and it con-
sequently dismissed the action in its entirety. In so
doing, the court misunderstood Rule 19 in several respects.
No. 07-2190                                             7

  The district court’s first error was to skip over
Rule 19(a)(2) altogether. The third amended complaint
that Askew filed named two parties: Lopez and the
Sheriff of Cook County. The missing party whose
joinder was required, based on this court’s decision in
Carver II, was Cook County itself. Had the district court
asked the questions whether the presence of Cook
County in the suit would destroy its subject-matter juris-
diction in this § 1983 action and whether the County
was subject to service of process from the Northern
District of Illinois, both answers would have been clear:
no, and yes. With that much established, the court
would have moved to Rule 19(a)(2) and ordered the
joinder of the County as a third defendant. The County
would have had no conceivable defense to venue, which
is proper in a federal-question case where (among
other places) a substantial part of the events giving rise
to the claim occurred (here, the Cook County jail, which
sits in the Northern District of Illinois), and so there
would have been no occasion to dismiss under
Rule 19(a)(3). The case then could (and should) have
proceeded to the merits.
  Even if, counterfactually, there might have been a
problem bringing in the County, the court erred by
treating Askew’s claim against Lopez and his claim
against the defendant Sheriff as one and the same. Just
because Carver II establishes that Cook County is a re-
quired party insofar as Askew is suing the Sheriff, it
does not necessarily follow that the County is also a
required party insofar as Askew is suing Lopez in his
individual capacity. For this purpose, the rationale
8                                               No. 07-2190

behind Carver II is important. There, following the
Illinois Supreme Court’s holding in Carver v. Sheriff of
LaSalle County, 

(2003) (which answered a
question certified by this court in Carver v. Sheriff of
LaSalle County, 

(7th Cir. 2001) (“Carver I”)),
we held that 745 ILCS 10/9-102 required a county to pay
for a judgment entered against the county sheriff in his
official capacity. Carver 

. Illinois law
establishes that the Sheriff is an “independently elected
county officer and is not an employee of the county in
which the sheriff serves.” 

;
Ill.Const.1970, art. VII, § 4(c); Moy v. County of Cook, 

(1994). It is the responsibility of the Sheriff to
appoint and hire deputies (55 ILCS 5/3-6008 (West 2000)),
to act as custodian of the county courthouse and jail
(55 ILCS 5/3-6017 (West 2000)), and to act as the county’s
supervisor of safety (55 ILCS 5/3-6035 (West 2000)). The
Sheriff’s office is financed by public funds, appropriated
to that office by Cook County. See, e.g., 55 ILCS 5/4-6003
(West 2000) (the county board “shall fix the compensa-
tion of sheriffs, with the amount of their necessary clerk
hire, stationery, fuel, and other expenses”); 55 ILCS 5/5-
1106 (West 2000) (county board obligated to “provide
proper rooms and offices for the accommodation” of the
sheriff, as well as “reasonable and necessary expenses
for the use of the sheriff”). Thus, “a county in Illinois is
a necessary party in any suit seeking damages from an
independently elected county officer . . . [and] [b]ecause
state law requires the county to pay, federal law deems
it an indispensable party to the litigation.” Carver 

.
No. 07-2190                                                9

  While this holding establishes that the County is a
required party for Askew’s suit against the Sheriff, it does
not answer the analytically distinct question whether
the County is similarly required for Askew’s suit
against Lopez, which was brought against him in his
individual capacity. Lopez argues that the County is still
“indispensable,” reasoning that if there is a tort judg-
ment entered against Lopez, the Sheriff must indemnify
him, and that if the Sheriff must pay, the County’s
interests are automatically implicated. The Sheriff’s
obligations are governed by 745 ILCS 10/9-102, which
reads as follows:
    A local public entity is empowered and directed to
    pay any tort judgment or settlement for compensa-
    tory damages for which it or an employee while
    acting within the scope of employment is liable in
    the manner provided in this Article.
Defendants argue that because, under state law, the
County will necessarily be the entity funding any judg-
ment entered against Lopez, this case is directly
analogous to the Carver cases and thus the County’s
joinder would be required even if the case were solely
against Lopez. This argument has some superficial
appeal: if this were a suit imposing liability on the
Sheriff for Lopez’s actions, then there would be no
escape from Carver II. But it is not. Askew’s suit against
the Sheriff cannot be one seeking to hold him liable
under a theory of respondeat superior for Lopez’s actions.
Monell and a host of later cases firmly establish that there
is no respondeat superior liability under § 1983. See Monell,
10                                                  No. 

. See also Moy, 159 

(holding that a county is not vicariously liable for the
actions of a sheriff’s deputy). That means that Askew’s
suit is a simple one against Lopez in his individual capac-
ity. Any judgment entered would be against Lopez
alone, without regard to any collateral sources to which
Lopez might turn to fund that judgment.
   A closer look at the Sheriff’s argument reveals that it is
premature. If Askew wins against Lopez, and then if
Lopez later tries to collect from the Sheriff in supple-
mental proceedings, it would then be necessary to join
the County as a party to those later proceedings. But
that day may never come. For the present, the County
does not become an “indispensable” party just because
it may need to indemnify the Sheriff in the future, any
more than an insurance company must be included as a
defendant in a suit against its insured. We conclude,
therefore, that the County is not a party that must be
joined if feasible, within the meaning of Rule 19, in a
case brought against the Sheriff in his individual capacity.
   In conclusion, Rule 19 requires that once a court deter-
mines that a party is a required party and it is feasible
for that party to be joined, the court “must order that the
person be made a party.” FED. R. C IV. P. 19(a)(2) (emphasis
added). Cook County fits that bill to a “T”. The district
court erred when it dismissed the action; it should
instead have ordered that Cook County be made a party.
If the case were still proceeding against both Lopez and
the Sheriff, that is all we would need to say. Unfor-
tunately for Askew, however, matters are more compli-
No. 07-2190                                             11

cated. Askew’s brief on appeal includes an unambiguous
waiver of any claim that he might have had against the
Sheriff. It states that the district court was “correct in
dismissing plaintiff’s claim brought against the Sheriff in
his official capacity . . . .” As we have said, this is not
true. At this point, however, Askew cannot avoid this
waiver. On remand, for the reasons we have set forth, the
case may go forward against Lopez without including
the County as a party.
  The judgment of the district court is therefore V ACATED
and the case is R EMANDED for further proceedings con-
sistent with this opinion. Circuit Rule 36 shall apply
on remand.




                          5-18-09