                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            APRIL 21, 2005
                             No. 04-16378                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                  D. C. Docket No. 04-02034-CV-MHS-1

AMERICAN SAFETY CASUALTY INSURANCE COMPANY,


                                                         Plaintiff-Appellant,

                                  versus

CONDOR ASSOCIATES, LTD.,

                                                         Defendant-Appellee.



                       _______________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                             (April 21, 2005)


Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
      American Safety Casualty Insurance Company (ASCIC) appeals from the

district court’s dismissal of its declaratory judgment action against Condor

Associates because of its failure to join an indispensable party pursuant to Fed. R.

Civ. P. 19(b). ASCIC contends that the district court abused its discretion in

concluding that Joseph and Maria Volpe were indispensable parties without whom

the declaratory judgment action could not proceed.

      ASCIC instituted this action after Condor, which was insured under a policy

issued by ASCIC, was sued by the Volpes for injuries Joseph Volpe received while

working for a sub-subcontractor of Condor. In its suit, ASCIC sought a

determination that it had no duty under the policy to defend or indemnify Condor

for the damages alleged in the Volpes’ complaint. It did not name the Volpes as a

party to the action.

      The district court, however, concluded that the Volpes were an indispensable

party as defined by Rule 19(b) and dismissed ASCIC’s suit.

      ASCIC argues that the district court’s application of the Rule 19(b) factors

(and, as a result, its conclusion that the Volpes were indispensable) was erroneous

for two reasons. First, it argues that the district court failed to recognize that

Condor would adequately protect the Volpes’ interest in the declaratory judgment

action because they both desire the same thing—namely, a judgment that the


                                            2
insurance policy issued by ASCIC provides coverage for the damages alleged by

the Volpes. Second, ASCIC contends that, even if Condor could or would not

adequately protect the Volpes’ interest, the district court nevertheless erred by

dismissing the action because, according to ASCIC, it ignored the possibility that

the Volpes could intervene in the suit pursuant to Fed. R. Civ. P. 24(a). ASCIC

contends that the possibility of intervention under Rule 24(a) alleviates the

potential for prejudice to the Volpes’ interests.

      “We review dismissal for failure to join an indispensable party for abuse of

discretion.” Laker Airways, Inc. v. British Airways, 182 F.3d 843, 847 (11th Cir.

1999) (citing Mann v. City of Albany, 883 F.2d 999, 1003 (11th Cir. 1989)). “This

scope of review will lead to reversal only if the district court applies an incorrect

legal standard, or applies improper procedures, or relies on clearly erroneous

factfinding, or if it reaches a conclusion that is clearly unreasonable or incorrect.

Short of that, an abuse of discretion standard recognizes there is a range of choice

within which we will not reverse the district court even if we might have reached a

different decision.” Schiavo ex rel. Schindler v. Schiavo ex rel. Schiavo, __ F.3d

__, No. 05-11556, 2005 WL 648897, at *2 (11th Cir. Mar. 25, 2005) (internal

citations omitted).

      First, ASCIC cites Evangelical Lutheran Church v. Atlantic Mutual


                                           3
Insurance Co., 173 F.R.D. 507 (N.D. Ill. 1997), for the proposition that the Volpes

were not indispensable because they shared an “identity of interest” with Condor.

The district court did not abuse its discretion by declining to follow Evangelical

Lutheran. That decision from the Northern District of Illinois is not the law of this

circuit. At most, Evangelical Lutheran is persuasive authority, and the district

court found the reasoning of Evangelical Lutheran “unpersuasive.” We cannot say

that the district court abused its discretion by failing to follow that out-of-circuit

case, particularly where ASCIC has cited no cases from our circuit even hinting

that the type of identity of interest it alleges between Condor and the Volpes would

prevent a finding of indispensability.

       That the district court did not err by failing to follow Evangelical Lutheran is

especially evident in light of Ranger Insurance Co. v. United Housing of New

Mexico, 488 F.2d 682 (5th Cir. 1974), a case that is binding and one on which the

district court relied.1 In Ranger, we affirmed the district court’s conclusion that the

absent tort claimants were indispensable parties to the insurer’s declaratory

judgment action against the insured because, were the case allowed to proceed

without them, “the claimants’ interests would be prejudiced.” Id. at 683. In so


       1
        In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent the decisions of the former Fifth Circuit handed down prior to October 1,
1981.

                                              4
ruling, we said nothing about the identity of interests between the claimants and the

insured, even though, like here, both the insured and the claimants presumably

wanted a judgment that the insurance policy afforded coverage of their claims. Id.

The district court in this case acted well within its discretion in applying the

reasoning and analysis from Ranger to reach the conclusion that the Volpes would

be prejudiced if ASCIC’s suit were to proceed without them. Indeed, it probably

would have been error not to follow Ranger.

      Second, the district court did not abuse its discretion by failing to consider

the possibility that the Volpes might be able to intervene in this action when

weighing the potential prejudice against them. It is true that the Federal Rules of

Civil Procedure advisory committee noted that the possibility of intervention may

be a relevant factor in considering if a party is indispensable under Rule 19(b). See

Fed. R. Civ. P. 19 advisory committee’s note (“[T]he absentee may sometimes be

able to avert prejudice to himself by voluntarily appearing in the action or

intervening on an ancillary basis.”).

      Importantly, however, consideration of the possibility of intervention is not a

hard and fast requirement. Several other circuits considering the interplay between

the possibility of intervention under Rule 24(a) and the prejudice determination

under Rule 19(b) treat the possibility of intervention as a permissive, rather than


                                           5
mandatory, consideration. See Dainippon Screen Mfg. Co. v. CFMT, Inc., 142

F.3d 1266, 1272 (Fed. Cir. 1998) (“Moreover, to the extent it would be prejudiced

if the suit were to proceed in its absence, CFMT may intervene in the suit, and this

opportunity to intervene may be considered in calculating [any] prejudicial effect.”

(internal quote and citation omitted) (emphasis added)); Travelers Indem. Co. v.

Dingwell, 884 F.2d 629, 636 (1st Cir. 1989) (“A court can properly consider ability

to intervene when assessing the interest of an absent party for purposes of the

indispensability determination under Rule 19(b). But ability to intervene cannot

control the indispensability determination, which examines whether a party is an

essential part of the controversy before the court.” (emphasis added)); In re

Allustiarte, 786 F.2d 910, 919 n.2 (9th Cir. 1986) (“[T]he absent parties’ failure to

intervene when they were not joined, may be considered in determining whether

those parties have been prejudiced by non-joinder.” (emphasis added)).

      We are not persuaded by the Second Circuit cases that are cited by ASCIC.

First, we do not read those cases as imposing a rule that a district court must

always consider the ramifications of Rule 24 when making an indispensability

determination under Rule 19(b). It is especially clear in Prescription Plan Service

Corp. v. Franco, 552 F.3d 493 (2d Cir. 1977), that the Second Circuits’ reversal of

the district court was not due to that court’s failure to consider the possibility of


                                            6
intervention under Rule 24 but, rather, its “fail[ure] to consider” the criteria

enumerated in Rule 19(b). Id. at 496 (concluding that none of the four Rule 19(b)

factors were met). Second, those Second Circuit decisions would not be binding

here, even if they did create such a requirement. And, given the decisions from

other circuits that we have just cited, we would not be alone in declining to adopt

such a rule.

       We conclude, then, that while the district court could have considered the

possibility of intervention, its failure to do so was not an abuse of discretion.2

Therefore, ASCIC has failed to demonstrate that the district court abused its

discretion in finding that the Volpes were not indispensable parties.

       AFFIRMED.




       2
          It is unnecessary for us to decide whether the Volpes actually could have intervened in
this case.

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