PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OWENS-ILLINOIS, INCORPORATED,
Petitioner-Appellant,

v.

DAVID L. MEADE; JERRY H. ADAMS;
CHARLES ADKINS; GENEVA ADKINS;
STANLEY ALLEN; MARGARET ALLEN;
DERETTA ANDERSON; JOHN ANTOBIUS;
JOSEPHINE ARNETT; JAMES ASHCRAFT;
MARY ASHCRAFT; MARY AYERSMAN;
ELIZABETH AYOOB; HERBERT BAKER;
SUE BAKER; PAUL BASTIN; KATHLEEN
BASTIN; ALFRED BECCALONI;
FLORENCE BEEGHLEY; LOREN SMITH;
BENNIE BENNETT; WILLIAM BENNETT;
JOY BENNETT; JUNIOR BILLER;
MARGARET BILLER; ZORA BOGDAN;
                                     No. 98-2218
ALBERT BOOTHE; MILDRED BOOTHE;
MINNIE BOSLEY; ALICE BOYCE; LESLIE
BOYCE; JOHN BRADSHAW; VIRGINIA
BRADSHAW; JOHN BRAMER; FREEDA
BRAMER; EARL BRITTON; MARY
BRITTON; ROY CALDWELL; JUNE
CALDWELL; PAUL CANTERBURY; TONI
CANTERBURY; SAMUEL CAPET; ROBERT
CARPENTER; VIRGINIA CARPENTER;
DOLORES CHIERA; JAMES CHIERA;
RUTH CLARK; LEO CLEVENGER;
CLACY CLEVENGER; DOROTHY COGAR;
MARY COULTER; LANTY COULTER;
MILDRED COX; ROBERT COX;
EARNEST CROSS; GEORGE CROSS;
ATHELLA CROSS; SAMUEL CUTRONE;
RUTH CUTRONE; ELLA DAVIS; OSCAR
DAVIS; FRANCIS DEAN; LOUISE DEAN;
GLENN DEAN; IDA DEAN; THEODORE
DEPOLO; THEDA DEPOLO; AGNES
DEROSA; LOUIS DEROSA; JULIE DIAZ;
JAMES DINGESS; SONIA DINGESS;
LEWIS DOSIER; MARY DOSIER; HELEN
DOSS; FELIX DRAZBA; NOVELLA
DRAZBA; KENNETH DURST; LORETTA
DURST; ALBERTA EDGELL; WILLIAM
EDGELL; CECIL ELDER; ALMA ELDER;
JOHN EMRICK; BEVERLY EMRICK;
JOANNE ERDEN; RUTH FAZIO; JAMES
FISHER; PATRICIA FISHER; FREDERICK
FLEMING; LOIS FLEMING; CLYDEAN
FLOHR; GEORGE FLOHR; JAMES FLOYD;
BETTIE FLOYD; CARL FREDERICK;
CLEO FREDERICK; CHARLES FREEMAN;
MARY FREEMAN; EULES FREEMAN;
EMOGENE FREEMAN; ALPHONSE GENIN;
HELEN GENIN; MADELINE GOOCH;
MELVIN GOOCH; CHARLES
GOODNIGHT; CARMELA GRAY; JAMES
GRAY; DAVID GRIFFITH; GLORDIA
GRINDO; DANNA HARRIS; FRANCIS
HARRIS; FLORENCE HARRIS; AUBREY
HARRIS; JIMMIE HICKMAN; MARY
HICKMAN; EDNA HICKS; SHIRLEY
HILEMAN; WILLIAM HINTER; MARY
HINTER; ROGER HOLMES; SARA
HOLMES; KENNETH HURST; BETTY
HURST; CAROLE MARTIN HUTSON;
RAYMOND INSANI; HAROLD JOHNS;
MARY JOHNS; GARLAND JOHNSTON;
BLANCHE JOHNSTON; HELEN JONES;
SAMUEL KELLY; HELEN KELLY;

              2
ELIZABETH KENDRICK; JOHN
KENDRICK; DELBERT KINCAID;
PAULINE KINCAID; HAROLD KNIGHT;
GEORGE KOPSHINA; FRANCES
KOPSHINA; MARLEY LANDES; VOLA
LANDES; THOMAS LANGFORD; LOIS
LANGFORD; CASEY LASKO; JOSEPHINE
LASKO; ESTHER LEESON; SAM LEROY;
BARBARA LEROY; KENNETH LOWTHER;
PATRICIA LOWTHER; PETE MALE; JOE
MANCUSO; VIRGINIA MANCUSO;
LOWELL MANGUS; KATHLEEN
MANGUS; MARLO MANZO; EUDIZIA
MANZO; MARY MARSH; BERNARD
MARSHALL; SAM MAZZA; MARY
MCELWAIN; ROBERT MCELWAIN;
CHARLES MEALEY; ETHEL MICHNA;
ADAM MICHNA; DANNY MICKLICH;
JUDITH MIKLICH; JAMES MOONEY, JR.;
BONNIE MORGAN; KAREN MORRIS;
PATRICK MORRIS; VINCENT NASH;
FRANCIS NASH; MELVIN NORMAN;
CONSTANCE NORMAN; LOUISE NUTTER;
GOFF NUTTER; BRANTY PETTIGREW;
ELIZABETH PETTIGREW; DONALD
PLIVELICH; TED POE; DIANE POE;
HARRY POPP; ALVENA POPP; JOHN
RIDENOUR; BEATRICE RIDENOUR; PAUL
ROBERTS; KATHLEEN ROBERTS; JAMES
ROMINE; BERNICE ROMINE; CONRAD
ROSS; DOMINICK SALENTRO;
MARGARET SALENTRO; WILSIE SANDY;
WILLIAM SANDY; RANCE SEABOLT;
MELVA SEABOLT; JAMES SECCURO;
FRANK SECRETO; MARY SECRETO;

              3
LYALL SINE; SARAH SINE; HERSHEL
SISSON; JOSEPHINE SISSON; JACKIE
SKINNER; DORIS SKINNER; LILLIE
SLOBADZIAN; ANDREW SLOBADZIAN;
BERNADINE SNIDER; GENE SOMERS;
ALICE SOMERS; JACK STANLEY; JANICE
STANLEY; HAROLD STOCKING; VELMA
STOCKING; DRAPER STRADER; KAY
STRADER; ROBERT SWAIN; ADDISON
SWISHER; BETTY SWISHER; ANTHONY
TALERICO; LUCY TALERICO; WILLARD
TALLMAN; YVONNA TALLMAN;
CLEDITH TAYLOR; CAROL TAYLOR;
DALLAS TAYLOR; MABEL TAYLOR;
BEVERLY TENDA; CARL TENDA;
CHESTER THARP; CAROL THARP;
WILLIAM THAXTON; BETTY THAXTON;
JAMES TORMAN; GALENA TORMAN;
HARRIET TRENT; SOPHIA TROVATO;
CHARLES TROVATO; BETTY TUTTLE;
OLIVE UTT; WILLIAM UTT; EARL
VANCE; KATHERINE VANCE; HARRY
VANDERGRIFT; THOMAS VELTRI; MARY
JANE VELTRI; ARNOLD VINCENT;
GRACE VINCENT; DENTON VINCENT;
CAROLYN VINCENT; ROGER WADE;
VIRGINIA WADE; RALLY WALTERS;
ANNETTA WALTERS; ELOISE WARE;
HENRY WEIMER; BETTY WEIMER;
JAMES WILCOXEN; HELEN WILCOXEN;
BEATRICE WILLIAMS; CHARLES
WILLIAMS; JAMES WILLIAMSON; MARY
WILLIAMSON; MELVIN WILLIAMSON;
ELIZABETH WILSON; DONALD WILSON;
JACK WILSON; SARAH WILSON;

              4
HARVEY WOLFE, GWENDOLYN WOLFE;
MARTHA WRIGHT; HAROLD WRIGHT;
GEORGIA YOHO; ORIE YOUNG;
FRANCIS ZEBLEY,
Respondents-Appellees.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Elizabeth V. Hallanan, Senior District Judge.
(CA-98-533-2)

Argued: March 2, 1999

Decided: August 2, 1999

Before ERVIN, Circuit Judge,
VOORHEES, United States District Judge for the
Western District of North Carolina, sitting by designation,
and FABER, United States District Judge for the
Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Ervin wrote the opinion, in
which Judge Voorhees and Judge Faber joined.

_________________________________________________________________

COUNSEL

ARGUED: William Clifford Wood, Jr., Robert Bruce Shaw, NEL-
SON, MULLINS, RILEY & SCARBOROUGH, L.L.P., Columbia,
South Carolina, for Appellant. Elliott William Harvit, HARVIT &
SCHWARTZ, L.C., Charleston, West Virginia, for Appellees. ON
BRIEF: Robert O. Meriwether, NELSON, MULLINS, RILEY &
SCARBOROUGH, L.L.P., Columbia, South Carolina; David K. Hen-
drickson, Peter B. King, HENDRICKSON & LONG, P.L.L.C.,
Charleston, West Virginia, for Appellant.

                    5
OPINION

ERVIN, Circuit Judge:

Owens-Illinois, Inc. ("Owens-Illinois") appeals a district court rul-
ing dismissing its Petition to Compel Arbitration and two related
motions for lack of jurisdiction because the parties to the motion were
not completely diverse. Owens-Illinois argues that, even if the parties
to the other motions filed simultaneously were not diverse, the district
court erred in dismissing the Petition to Compel Arbitration in which
the named parties were diverse. Because we conclude that the parties
excluded from the Petition to Compel were necessary and indispens-
able parties under Fed. R. Civ. P. 19 and, because their joinder
destroys diversity, the district court lacked jurisdiction over this case.
We affirm.

I.

Owens-Illinois is a manufacturing corporation incorporated in Del-
aware with its principal place of business in Ohio.

On or about January 21, 1993, Owens-Illinois entered into a Settle-
ment Agreement ("the Agreement") with West Virginia attorneys
David L. Meade ("Meade"), William C. Field, and Joseph F. Rice.
The Agreement specified the terms and process by which the attor-
neys' many clients ("Plaintiffs") would settle future asbestos tort
cases they had against Owens-Illinois. The Agreement provided that
Plaintiffs who had been exposed to asbestos contained in products
manufactured by Owens-Illinois, and who had developed an asbestos
related disease, could submit certain medical and exposure informa-
tion and receive an expeditious, extra-judicial settlement offer from
Owens-Illinois. Meade terminated the Agreement in June 1997, when,
in his opinion, Owens-Illinois failed to comply with its obligations
under the Agreement.

Following the termination of the Agreement, several Plaintiffs
injured by Owens-Illinois' asbestos-related products filed tort actions
in the Circuit Court of Kanawha County, West Virginia to recover for
their injuries. The case filed in West Virginia state court is known as

                     6
Haddix v. Owens-Illinois, Inc. et. al., C/A No. 91-C-2273, and
includes Plaintiffs that were residents of both West Virginia and
Ohio.

In an effort to block the Plaintiffs from pursuing their claims in
state court, Owens-Illinois filed a Petition to Compel Arbitration in
the United States District Court for the Southern District of West Vir-
ginia seeking enforcement of the Agreement's arbitration provisions.
The petition contained the same caption as in the Haddix case pend-
ing before the state court naming "David L. Meade, Respondent
Plaintiffs" as parties. In the first paragraph of the petition, however,
Owens-Illinois explicitly stated that the parties for the purpose of the
Petition to Compel were only those named in the attached list entitled
Exhibit A. Exhibit A contained the names of a sub-group of the
Haddix Plaintiffs consisting of only those that were residents of West
Virginia, specifically excluding all Plaintiffs from Ohio.

At the same time, Owens-Illinois also filed a Motion for a Tempo-
rary Restraining Order (TRO) and a Motion to Stay the state court
proceedings. Both of the motions included the same caption as the
Petition to Compel Arbitration, but neither contained a textual refer-
ence to Exhibit A or any indication that the parties were limited to
only the Plaintiffs from West Virginia. Instead, Owens-Illinois
referred loosely to enjoining the "Respondent Plaintiffs," defined as
all of the people involved in the Haddix state court action.

On June 17, 1998, the district court held a hearing on Owens-
Illinois' Motion for a TRO. The court held that, because Owens-
Illinois was trying to enjoin each and every Haddix plaintiff from pro-
ceeding in state court, and some of these Plaintiffs shared citizenship
with Owens-Illinois, complete diversity was lacking. The following
day the district court entered an order dismissing all three of Owens-
Illinois' motions for lack of subject matter jurisdiction.

Owens-Illinois filed a Motion for Reconsideration on June 30,
1998, arguing that the district court erred in dismissing the Petition
to Compel Arbitration because the "Respondent Plaintiffs" listed in
the Motion for a TRO and the Motion to Stay were not the same par-
ties as those explicitly listed in Exhibit A of the Petition to Compel
Arbitration. The district court denied the motion reasoning that,

                    7
because the three motions were filed at the same time and were
intended to act in concert with one another to halt the state court
action, the parties in all three motions were the same. Therefore,
because some of the parties to the state court action included Ohio
residents, diversity was not complete and subject matter jurisdiction
was lacking. Further, even if the parties to the Petition to Compel
were distinct from those in the other two motions, the district court
concluded that the non-diverse, Ohio Plaintiffs were necessary and
indispensable parties under Fed. R. Civ. P. 19 and, because their join-
der would destroy diversity, the case should be dismissed for want of
jurisdiction. Owens-Illinois appeals the district court's ruling.

II.

"The district court's order dismissing a case on the grounds of lack
of subject matter jurisdiction is a legal determination subject to de
novo review." Tillman v. Resolution Trust Corp., 37 F.3d 1032, 1034
(4th Cir. 1994).

Owens-Illinois' cause of action arises out of the Federal Arbitration
Act ("FAA"), 9 U.S.C.A. §§ 1-16 (West 1999). Section 4 of the FAA
confers jurisdiction in the district court over petitions to compel arbi-
tration only to the extent that the federal court would otherwise have
jurisdiction over the case.1 On that basis, this case must include
another independent basis to establish federal jurisdiction. See Moses
H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n.32
(1983).

The parties agree that the only possible independent basis of fed-
_________________________________________________________________
1 Section 4 of the FAA provides in pertinent part:

          A party aggrieved by the alleged . . . refusal of another to arbi-
          trate under a written agreement for arbitration may petition any
          United States district court which, save for such agreement,
          would have jurisdiction under Title 28, in a civil action . . . of
          the subject matter of a suit arising out of the controversy
          between the parties, for an order directing that such arbitration
          proceed in the manner provided for in such agreement.

9 U.S.C.A. § 4.

                     8
eral subject matter jurisdiction here is diversity of citizenship. See 28
U.S.C.A. § 1332 (West 1993 & Supp. 1999). In order to establish
diversity jurisdiction, the parties must be completely diverse; none of
the plaintiffs may share citizenship with any of the defendants. See
Carden v. Arkoma Assocs., 494 U.S. 185, 187 (1990).

Owens-Illinois argues that, even if the other two motions named
non-diverse, Ohio Plaintiffs, diversity of citizenship existed with
respect to the Petition to Compel because it explicitly included only
those Plaintiffs who were diverse from Owens-Illinois. In its ruling,
the district court relied on the fact that the three motions were filed
at the same time and were intended to act in concert with one another
to halt the Plaintiffs' suits in state court to find that the parties were
the same for all three motions. In the alternative the district court con-
cluded that, because the Plaintiffs were highly likely to be prejudiced
by the piecemeal nature of this litigation, they were necessary and
indispensable parties pursuant to Rule 19 and should have been
joined.

We do not agree with the district court's conclusion that, because
the three motions were filed at the same time and were intended to
act in concert, the parties for all three motions were the same non-
diverse parties over which it lacked jurisdiction. However, because
we agree that the non-diverse, Ohio Plaintiffs excluded from the Peti-
tion to Compel are necessary and indispensable parties to this action
and should have been joined, we affirm the district court's dismissal
of the case for want of subject matter jurisdiction.

Rule 19 sets out separate tests for determining whether a party is
"necessary" and "indispensable." It is a two-step inquiry in which
courts must first ask "whether a party is necessary to a proceeding
because of its relationship to the matter under consideration" pursuant
to Rule 19(a).2 Teamsters Local Union No. 171 v. Keal Driveaway
_________________________________________________________________
2 Rule 19(a) provides, in pertinent part:

          (a) Persons to be Joined if Feasible. A person who is subject to
          service of process and whose joinder will not deprive the court
          of jurisdiction over the subject matter of the action shall be
          joined as a party in the action if (1) in the person's absence com-

                     9
Co., 173 F.3d 915 (4th Cir. 1999), No. 98-1292, 1999 WL 170194,
at *2 (Mar. 29, 1999). If a party is necessary, it will be ordered into
the action. When a party cannot be joined because its joinder destroys
diversity, the court must determine whether the proceeding can con-
tinue in its absence, or whether it is indispensable pursuant to Rule
19(b)3 and the action must be dismissed. See id.

Courts are loath to dismiss cases based on nonjoinder of a party,
so dismissal will be ordered only when the resulting defect cannot be
remedied and prejudice or inefficiency will certainly result. See RPR
& Assocs. v. O'Brien/Atkins Assocs., P.A., 921 F. Supp. 1457, 1463
(M.D.N.C. 1995) (relying on Provident Tradesmans Bank & Trust
Co. v. Patterson, 390 U.S. 102, 118 (1968)). Such a decision "must
_________________________________________________________________

          plete relief cannot be accorded among those already parties, or
          (2) the person claims an interest relating to the subject of the
          action and is so situated that the disposition of the action in the
          person's absence may (i) as a practical matter impair or impede
          the person's ability to protect that interest or (ii) leave any of the
          persons already parties subject to a substantial risk of incurring
          double, multiple, or otherwise inconsistent obligations by reason
          of the claimed interest.

Fed. R. Civ. P. 19(a).
3 Rule 19(b) provides:

          (b) Determination by Court Whenever Joinder not Feasible. If a
          person as described in subdivision (a)(1)-(2) hereof cannot be
          made a party, the court shall determine whether in equity and
          good conscience the action should proceed among the parties
          before it, or should be dismissed, the absent person being thus
          regarded as indispensable. The factors to be considered by the
          court include: first, to what extent a judgment rendered in the
          person's absence might be prejudicial to the person or those
          already parties; second, the extent to which, by protective provi-
          sions in the judgment, by the shaping of relief, or other mea-
          sures, the prejudice can be lessened or avoided; third, whether a
          judgment rendered in the person's absence will be adequate;
          fourth, whether the plaintiff will have an adequate remedy if the
          action is dismissed for nonjoinder.

Fed. R. Civ. P. 19(b).

                     10
be made pragmatically, in the context of the substance of each case,
rather than by procedural formula," Patterson , 390 U.S. at 119 n. 16,
by considering "the practical potential for prejudice" to all parties,
including those not before it. Schlumberger Indus., Inc. v. National
Sur. Corp., 36 F.3d 1274, 1286 (4th Cir. 1994).

In the instant case, the district court properly found that the non-
diverse, Ohio Plaintiffs in the Haddix action were necessary and
indispensable parties whose absence requires dismissal.

A.

The non-diverse Plaintiffs are necessary parties to this action
because permitting this suit to continue in both the state and federal
courts would likely subject all of the parties to conflicting legal obli-
gations in a manner prohibited by Rule 19(a)(2)(ii). As the district
court noted, in the instant case both courts are being asked to make
determinations on the validity and interpretation of the Agreement,
creating a high likelihood of incongruous results. In previous cases
we have ruled that the increased potential for inconsistent judgments
is grounds for finding a nonjoinded party necessary. See Keal
Driveaway Co., 173 F.3d 915, ___ (4th Cir. 1999), 1999 WL 170194,
at *3 (continuing without the necessary party is impermissible
because permitting the suit to proceed without unjoined parties could
subject a joined party to conflicting legal obligations); Schlumberger,
36 F.3d at 1286-87 (holding that the potential for factual and legal
"whip-saw" favored finding that the unjoined party was necessary).
See also Window Glass Cutters League of America, AFL-CIO v.
American St. Gobain Corp., 428 F.2d 353, 354-55 (3d Cir. 1970)
(concluding that the potential for inconsistent judgments made two
disputing unions necessary parties).

We agree with the district court that this case creates a high poten-
tial for inconsistent judgments. If this action was allowed to proceed
one court might compel arbitration on the basis of the Agreement,
while the other found that, because Owens-Illinois breached the
Agreement, alternative judicial remedies were available to some of
the Plaintiffs. This potential for factual and legal"whip-saw" weighs
heavily in favor of having one court adjudicate the entire case with
all of the affected parties before it. See Schlumberger, 36 F.3d at

                     11
1287. In fairness to all of the parties involved in this matter, we hold
that the non-diverse, Ohio Plaintiffs excluded from the Petition to
Compel are necessary parties.

B.

Having concluded that the non-diverse Plaintiffs are necessary, and
because their joinder would destroy diversity, we must determine
whether they are indispensable using the factors enumerated in Rule
19(b). Consideration of the first and third factors under the rule -- the
extent to which a judgment rendered in the person's absence might
prejudice the parties or would even be adequate-- address much the
same concerns as under the Rule 19(a)(2) analysis. See 7 Wright, Mil-
ler & Kane, Federal Practice and Procedure§ 1604, at 47 (2d ed.
1986) (noting that the Rule 19(a) analysis is "closely related to several
of the factors mentioned in Rule 19(b)"). As previously discussed, the
high potential for factual and legal whipsawing indicates that the par-
ties will be prejudiced by any judgment rendered in the absence of the
non-diverse Plaintiffs and, therefore, such a resolution would not be
adequate.

As to the second factor, it is hard to see how the district court could
have tailored a remedy to lessen or avoid the potential for prejudice
in this case. In order to reach a judgment on the merits of the Petition
to Compel Arbitration, the district court could not have avoided
addressing the validity and applicability of the Agreement's arbitra-
tion provision, thereby ruling on the same issues before the West Vir-
ginia state court. Without another plausible remedy, the district court
could not have fashioned a remedy that would avoid the inevitable
prejudice to the parties to the duplicative litigation.

Finally, with respect to the fourth factor, we see no reason why the
Circuit Court of Kanawha County, West Virginia will not provide an
adequate remedy for the parties in this case. In fact, it is likely the
best place for the adjudication of this matter since all of the Plaintiffs
work at the same location and will share many witnesses and exhibits
in the event a trial is held. The West Virginia state court is more than
capable of rendering an adequate and fair judgment in this matter.
With all four factors supporting a finding of indispensability, this

                     12
Court could not in good conscience allow this case to proceed in the
absence of the non-diverse, Ohio Plaintiffs.

III.

Having found that the non-diverse Plaintiffs to the Haddix action
are necessary and indispensable parties to the Petition to Compel
Arbitration, we hold that their joinder is mandated under Rule 19.
Their joinder, however, destroys complete diversity, the only basis on
which the district court maintained subject matter jurisdiction.4 With-
out jurisdiction, this claim must be dismissed. The decision of the dis-
trict court is therefore

AFFIRMED.
_________________________________________________________________
4 On motion to this Court and at oral argument, Meade and the Haddix
Plaintiffs argued that oral rulings made in two hearings before the Circuit
Court of Kanawha County, West Virginia rendered this case moot. How-
ever, questions of subject matter jurisdiction must be decided "first,
because they concern the court's very power to hear the case." 2 James
Wm. Moore et al., Moore's Federal Practice§ 12.30[1] (3d ed. 1998).
Our dismissal of this case for lack of jurisdiction, therefore, makes it
unnecessary for us to decide this issue.

                    13
