Barber

Opinion by Judge ALARCON; Dissent by Judge KLEINFELD.

Dale Barber appeals from the dismissal of the action he filed on behalf of Victoria Cryt-zer’s minor children for loss of parental consortium. The aetion was brought against the Cincinnati Bengals, Inc., and certain members of that football team (the Bengals). Crytzer filed an action against the Bengals on April 10, 1992 for damages for personal injuries and for recision of a release of her claims. The claim for loss of parental consortium arises from the injuries allegedly suffered by Crytzer.

On April 9,1993, a jury returned a verdict in favor of the Bengals on Crytzer’s recision claim. Although judgment was entered on *555 Crytzer’s recision claim pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, no judgment disposing of her personal injury claims has been entered. While Cryt-zer’s appeal of the judgment on the recision claim was pending before this court, the district court dismissed her minor children’s claims for loss of parental consortium. The district court ruled that Barber had failed to show that joinder with Crytzer’s action was not feasible as required by Washington law. The court also determined…

dissenting:

I respectfully dissent. I would affirm the dismissal of the children’s consortium claims.

I.

Nobody directly harmed the children. The alleged direct harm was to their mother. Victoria C. alleged in her complaint that she was repeatedly raped by members of the Cincinnati Bengals football team. She testified that her sexual contact with the first player was in accord with her wishes, but that the contact with the other players was against her will.

The defendants denied the truth of Victoria C.’s claims. The defendants claimed that the sex which occurred was entirely in accord with Victoria C.’s requests.

One of these accounts must be false. We do not know which one. Neither side is entitled to have us presume the truth of its account of the sex, in the procedural context in which this case arises.

In October of 1991, one year after the night at the hotel, Victoria C. called the Bengals’ team office and initiated discussions about the incident. She had recently met with a rape crisis counselor regarding the incident. She had also hired an attorney. She told the team officials that unless they reached some agreement, she would “go public.” However, she did not tell…