Harris L. Kimball v. The Florida Bar, 537 F.2d 1305 (5th Cir. 1976). · Go Syfert
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Harris L. Kimball v. The Florida Bar, 537 F.2d 1305 (5th Cir. 1976). Cases Citing This Book View Copy Cite
35 citation events (4 in the last 25 years) across 14 distinct courts.
Strongest positive: Valley Forge Insurance Co v. Magnolia River Services Inc (lawd, 2025-04-14)
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977 2001 2026
Top citers, strongest first. 13 distinct citers. How cited ↗
cited Cited as authority (rule) Valley Forge Insurance Co v. Magnolia River Services Inc
W.D. La. · 2025 · confidence medium
Kimball v. Fla. Bar, 537 F.2d 1305, 1307 (5th Cir. 1976).
discussed Cited as authority (rule) United States v. City of Detroit (2×)
6th Cir. · 2013 · confidence medium
While this argument was not raised by any of the parties below (presumably because the existing parties oppose intervention), and the Sixth Circuit has never ruled on whether a non-party can raise an objection based on Rule 19, other courts have held that “a Rule 19 objection can even be noticed on appeal by a reviewing court sua sponte.” Pickle v. Int’l Oilfield Divers, Inc., 791 F.2d 1237, 1242 (5th Cir. 1986) (citing Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102 (1968)); Kimball v. Florida Bar, 537 F.2d 1305, 1307 (5th Cir. 1976); see 7 Charles Alan Wright & Arthur …
discussed Cited as authority (rule) United States v. City of Detroit
6th Cir. · 2013 · confidence medium
While this argument was not raised by any of the parties below (presumably because the existing parties oppose intervention), and the Sixth Circuit has never ruled on whether a non-party can raise an objection based on Rule 19, other courts have held that “a Rule 19 objection can even be noticed on appeal by a reviewing court sua sponte.” Pickle v. Int’l Oilfield Divers, Inc., 791 F.2d 1237, 1242 (5th Cir. 1986) (citing Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102 (1968)); Kimball v. Florida Bar, 537 F.2d 1305, 1307 (5th Cir. 1976); see 7 Charles Alan Wright & Arthur …
discussed Cited as authority (rule) William J. Manning, Manning & Napier Advisors, Inc. v. Energy Conversion Devices, Inc., Stanford R. Ovshinsky
2d Cir. · 1994 · confidence medium
See Quabaug Rubber Co. v. Fabiano Shoe Co., Inc., 567 F.2d 154 , 158 n. 4 (1st Cir.1977) (“the absence of an indispensable party may be raised at any time, even by a reviewing court on its own motion”); Kimball v. Florida Bar, 537 F.2d 1305, 1307 (5th Cir.1976) (same).
discussed Cited as authority (rule) Hiltsley v. Ryder (2×)
Utah · 1987 · confidence medium
Corp. v. Baldwin, 576 P.2d 881, 883 (Utah 1978) ("[N]o judgment could have been so entered for the reason that the corporation was not before the court."). [3] See, e.g., Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 111 , 88 S.Ct. 733, 738 , 19 L.Ed.2d 936 (1968); Kimball v. Florida Bar, 537 F.2d 1305, 1307 (5th Cir.1976). [4] Although Rule 19 was amended after this case was argued, the amendments do not affect the operation of the rule. [5] In making this disposition, we in no way rule upon the merits of the constructive trust issue.
cited Cited as authority (rule) United States v. Alvin O'Neil and Thurston O'neil, United States of America v. Charles Medlin, B.A. McFarland and B.E. McFarland United States of America v. Doko Farms, a Partnership, James Porter, Allison v. Barnett, L.D. Smith and William T. Curry, United States of America v. Paul Morgan, P & B Morgan Trust, Morgan Farms, Inc. And Wayne Greaves
5th Cir. · 1983 · confidence medium
Kimball v. Florida Bar, 537 F.2d 1305, 1307 (5th Cir.1976).
cited Cited as authority (rule) United States v. O'Neil
5th Cir. · 1983 · confidence medium
Kimball v. Florida Bar, 537 F.2d 1305, 1307 (5th Cir.1976).
cited Cited as authority (rule) Katherine Jeffries v. Georgia Residential Finance Authority, Harriet J. MacKlin Etc.
11th Cir. · 1982 · confidence medium
Failure to raise this issue by proper motion before the trial court does not constitute waiver. 620 F.2d at 51 ; Kimball v. Florida Bar, 537 F.2d 1305, 1307 (5th Cir. 1976).
cited Cited as authority (rule) United States v. Sabine Shell, Inc. And Badon Construction Co.
5th Cir. · 1982 · confidence medium
McCulloch v. Glasgow, 620 F.2d 47, 51 (5th Cir. 1980); Kimball v. Florida Bar, 537 F.2d 1305, 1307 (5th Cir. 1976); Haby v. Stanolind Oil & Gas Co., 225 F.2d 723, 724 (5th Cir. 1955) (per curiam).
discussed Cited as authority (rule) Carlos Romero-Barcelo, Etc. v. Harold Brown
1st Cir. · 1981 · confidence medium
See Provident Bank & Trust Co. v. Patterson, 390 U.S. 102, 111 , 88 S.Ct. 733, 738-739 , 19 L.Ed.2d 936 (1968); NLRB v. Doug Neal Management Co., 620 F.2d 1133, 1139 (6th Cir. 1980); Kimball v. Florida, 537 F.2d 1305, 1307 (5th Cir. 1976). 29 .
discussed Cited as authority (rule) Carl McCulloch and Nora Dell McCulloch Cross-Appellants v. Thomas Glasgow, Cross-Appellees
5th Cir. · 1980 · confidence medium
Thus, although the defendants’ failure to raise the issue in the district court does not constitute a waiver, Kimball v. Florida Bar, 537 F.2d 1305, 1307 (5th Cir. 1976), we find that no purpose would be served by requiring joinder under the circumstances presented here.
examined Cited as authority (rule) National Labor Relations Board v. Doug Neal Management Company (4×) also: Cited "see, e.g."
6th Cir. · 1980 · confidence medium
As a result it is possible that the true nature and extent of these interests may not be explored until after they are irreparably prejudiced." Id. at 479, n.3 . 51 Furthermore, "in the absence of an indispensable party, the federal courts are no more empowered to render a declaratory judgment than we would be to give affirmative relief." Kimball v. Florida Bar, 537 F.2d 1305, 1307 (5th Cir. 1976). 52 The presence of an indispensable party "is required in order that the court may make an adjudication equitable to all persons involved." 3A Moore's Federal Practice P 19.05(2).
cited Cited "see" Commonwealth Land Title Insurance v. Stephenson
N.C. Ct. App. · 1990 · signal: see · confidence high
See Kimball v. The Florida Bar, 537 F.2d 1305, 1306-07 (5th Cir. 1976).
Retrieving the full opinion text from the archive…
Harris L. KIMBALL, Plaintiff-Appellant,
v.
the FLORIDA BAR Et Al., Defendants-Appellees
75-1005.
Court of Appeals for the Fifth Circuit.
Sep 2, 1976.
537 F.2d 1305
Louis M. Jepeway, Jr., Stephen Cahen, Am. Civ. Liberties U. of Fla., Miami, Fla., Jeremiah S. Gutman, Am. Civ. Liberties U. Foundation, New York City, for plaintiff-appellant., Darrey A. Davis, Charles A. Kimbrell, William M. Hoeveler, Miami, Fla., for defendants-appellees.
Rives, Goldberg, Gee.
Cited by 26 opinions  |  Published
GEE, Circuit Judge:

Appellant, who was disbarred in 1957 for engaging in a homosexúal act on a public beach, State v. Kimball, 96 So.2d 825 (Fla.1957), [1] challenges the lower court’s stay based on abstention in his suit under 42 U.S.C. § 1983 (1970), against the State Bar of Florida. Below he attacked the constitutionality [2] of his disbarment and of rule 11.02(3) of article XI of the integration rule of the Florida Bar, which provides that an attorney may be disciplined for any act contrary to “good morals.” In the court below, appellant sought declarations that his disbarment was unconstitutional and that rule 11.02(3) is unconstitutional, as well as an injunction preventing the Bar from engaging in future harassment and interference with his constitutional rights. Finding that the lower court’s abstention was improper, we vacate the stay and remand.

The lower court abstained by invoking the unclear-state-law branch of the abstention doctrine, cf. Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965), on the ground that Florida courts had not recently construed rule 11.02(3) as it applied to homosexuals. The general rule is that a court should abstain only if state law is fairly subject to an interpretation that will render unnecessary or substantially modify the federal question. Kusper v. Pontikes, 414 U.S. 51, 54-55, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); Harman v. Forssenius, 380 U.S. 528, 535, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965). But in 1957, the Florida Su preme Court spoke clearly, and decisively on the issue raised here by disbarring appellant, and recent cases only reinforce the view that under Florida law an attorney can be disbarred for immoral conduct unrelated to the practice of law. See Florida Bar v. Kay, 232 So.2d 378 (Fla.1970) (disbarment based on defendant’s conviction for indecent exposure in a public lavatory, which violated a city ordinance; unclear if decision is based on rule 11.02(3)(a) or (3)(b)); Florida Bar v. Hefty, 213 So.2d 422 (Fla.1968) (disbarment based on defendant’s sexual misconduct with his ten-year-old stepdaughter). Thus, the abstention was improper.

One question not raised on appeal is whether either the Florida Supreme Court or its members are “indispensable parties” under Rule 19(b), Fed.R.Civ:P., [3] and must be joined or the action dismissed. [4][*1307] A party does not waive the defense of failure to join an indispensable party by neglecting to raise it; an objection can be raised at any time even by a reviewing court on its own motion, see Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 109-12, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968); Boles v. Greeneville Housing Authority, 468 F.2d 476, 479 (6th Cir. 1972) (Tuttle, J.); Haby v. Standard Oil & Gas Co., 225 F.2d 723, 724 (5th Cir. 1955); 7 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 1609, at 88-94 (1972). In the absence of an indispensable party, the federal courts are no more empowered to render a declaratory judgment than we would be to give affirmative relief. We could not resolve this issue without additional briefs examining each of the factors enumerated in Rule 19, and we would have to remand in any case if we held for appellee on this issue. Therefore, we think it appropriate to remand in the first instance so that before reaching the other issues [5] raised the district court can determine whether the supreme court or its members can or should have been joined under the provisions of Rule. 19.

REVERSED AND REMANDED.

1

. He was subsequently admitted to and is presently a member in good standing of the Illinois and New York bars.

2

. On due process, vagueness, overbreadth, privacy, and equal protection grounds. The constitutional issues were not raised in his 1957 suit.

3

. If, of course, the court first finds that they are necessary parties under Rule 19(a) who should be joined if feasible.

4

. One factor in this determination is “whether a judgment rendered in the [missing] person’s absence will be adequate.” We note in this regard that appellant here seeks primarily a[*1307] declaration that his disbarment was unconstitutional and that while the Bar did recommend the disbarment, under the Florida Constitution only the state supreme court can admit, disbar, or reinstate attorneys. Florida Bar v. Abramson, 199 So.2d 457, 460 (Fla. 1967); In re Harper, 84 So.2d 700, 706 (Fla.1956).

5

. Except for appellant’s claim that the lower court improperly refused to convene a three-judge court. Since appellant requested only declaratory relief on all claims concerning the enforcement of state law, no three-judge court is necessary. Sands v. Wainwright, 491 F.2d 417, 422 (5th Cir. 1973) (en banc) (Goldberg, J.).