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                   United States Court of Appeals
                        For the First Circuit
                        ____________________
                                  
                                  
No. 97-1750

                           JULIO DELGADO,
                                  
                        Plaintiff, Appellant,
                                  
                                 v.
                                  
                  PLAZA LAS AMERICAS, INC., ET AL.,
                                  
                       Defendants, Appellees.
                                  
                        ____________________
                                  
            APPEAL FROM THE UNITED STATES DISTRICT COURT
                                  
                   FOR THE DISTRICT OF PUERTO RICO
                                  
          [Hon. Salvador E. Casellas, U.S. District Judge]
                                  
                        ____________________
                                  
                               Before
                                  
                       Torruella, Chief Judge,
                  Boudin and Stahl, Circuit Judges.
                                  
                        ____________________
                                  
    Jorge Miguel Suro Ballester, with whom Cherie K. Durand and Law
Offices Benjamin Acosta, Jr. were on brief for appellant.
    Ivan M. Fernandez for appellees.


                         ____________________

                            March 9, 1998
                         ____________________�      Per curiam.  Plaintiff-appellant Julio Delgado appeals from
    the district court's dismissal of his complaint against
    defendants-appellees Plaza Las Americas, Inc. and Universal
    Insurance Company for failure to join a party needed for just
    adjudication.  See Fed. R. Civ. P. 19.  Because we conclude
    that the court's determination was premised upon a mistaken
    reading of Fed. R. Civ. P. 19(a)(2)(ii), we vacate and
    remand.
                               I.
      On August 19, 1994, Nannette Delgado Ocasio was sexually
  abused and raped at gunpoint by an unidentified man on the
  premises of the Plaza Las Americas shopping center in San
  Juan, Puerto Rico.  Subsequently, plaintiff, who is Ocasio's
  father and a Florida resident, brought this diversity action
  in United States District Court for the District of Puerto
  Rico.  The complaint sought damages for the emotional pain
  and anguish plaintiff suffered as a result of the rape of his
  daughter.  Meanwhile, Ocasio, who is a Puerto Rico resident,
   sued the same defendants in Puerto Rico Superior Court.
      On February 27, 1996, acting sua sponte, the district court
  directed Delgado to show cause why this case should not be
  dismissed for (i) failure to meet the amount in controversy
  requirement of 28 U.S.C. � 1332(a); and/or (ii) nonjoinder of
       a non-diverse party -- Ocasio -- needed for just
   adjudication.  Thereafter, the district court dismissed
  Delgado's complaint without prejudice, holding that, although
   a sufficient amount in controversy had been established,
  Delgado had failed to join a party necessary to the lawsuit
  under Fed. R. Civ. P. 19(a)(2)(ii)(an absentee may be deemed
   a necessary party if nonjoinder could "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"), and
  indispensable to the lawsuit under Fed. R. Civ. P. 19(b).
      In determining that Ocasio was a necessary party, the court
   reasoned that the potential for inconsistent verdicts in
  Ocasio's state action and Delgado's federal action subjected
  defendants to a substantial risk of incurring multiple or
  otherwise inconsistent obligations.  The court also observed
     that allowing the two actions to proceed would be an
  inefficient use of judicial resources and raised the specter
     of one of the plaintiffs using "offensive collateral
  estoppel" against defendants.    Having determined that Ocasio
    was a necessary party on these bases, the court applied the
    gestalt factors set forth in Fed. R. Civ. P. 19(b) and found
    that Ocasio also was indispensable to the lawsuit.  Because
    Ocasio was non-diverse, the court then dismissed the action
    without prejudice to its being reinstated should the
    Commonwealth court deny plaintiff permission to join in
    Ocasio's lawsuit.
                              II.
      Plaintiff makes three arguments on appeal.  He first contends
  that the district court exceeded its discretion in addressing
  the issue of nonjoinder sua sponte.  He also argues that the
  court premised its dismissal upon an erroneous construction
  of Fed. R. Civ. P. 19(a)(2)(ii).  Finally, he challenges the
  lower court's indispensability determination under Fed. R.
  Civ. P. 19(b).  For their part, defendants contend that we do
  not have appellate jurisdiction over this appeal under 28
   U.S.C. � 1291 because the dismissal challenged here was
  without prejudice and was therefore not a final judgment.
      Although we accept plaintiff's second argument, we think it
    important to note that his first argument is entirely
  unpersuasive.  We have squarely held that a district court
  may raise the issue of nonjoinder sua sponte.  See Gonzalezv. Cruz, 926 F.2d 1, 5 n.6 (1st Cir. 1991) (citing Fed. R.
   Civ. P. 21).  So too do we reject summarily defendant's
   contention that we lack appellate jurisdiction over this
  matter, as the effect of the dismissal without prejudice was
  to oust from federal court a suit over which the court had
   subject matter jurisdiction.  See Moses H. Cone Hosp. v.
     Mercury Constr. Corp., 460 U.S. 1, 9-10 & n.8 (1982)
  (appellate court has jurisdiction where district court enters
  a stay with expectation that if plaintiff does not obtain
  relief in state court federal litigation may resume); Burnsv. Watler, 931 F.2d 140, 143 (1st Cir. 1991) (similar).
      The primary question before us, then, is whether the district
  court correctly determined that Ocasio is a necessary party
  under Fed. R. Civ. P. 19(a)(2)(ii).    As stated above, Fed.
    R. Civ. P. 19(a)(2)(ii) provides that an absentee may be
    deemed a necessary party if nonjoinder will "leave any of the
    persons already parties subject to substantial risk of
    incurring double, multiple, or otherwise inconsistent
    obligations by reason of the claimed interest."  Although the
    plaintiff has the right to control his own litigation and to
    choose his own forum, Fed. R. Civ. P. 19(a)(2)(ii) balances
    these rights against the defendants' (and systemic) interests
    in avoiding judgments giving rise to "inconsistent
    obligations."  See Schutten v. Shell Oil Co., 421 F.2d 869,
    873 (5th Cir. 1970). 
        "Inconsistent obligations" are not, however, the same as
    inconsistent adjudications or results.  See Micheel v.
    Haralson, 586 F. Supp. 169, 171 (E.D. Pa. 1983); see also 4
    James Wm. Moore et al., Moore's Federal Practice � 19.03 (3d
    ed. 1997).  Inconsistent obligations occur when a party is
    unable to comply with one court's order without breaching
    another court's order concerning the same incident.  See 4
    Moore's at � 19.03.  Inconsistent adjudications or results,
    by contrast, occur when a defendant successfully defends a
    claim in one forum, yet loses on another claim arising from
    the same incident in another forum.  See National Union Fire
    Ins. Co. of Pittsburgh v. Massachusetts Mun. Wholesale Elec.
    Co., 117 F.R.D. 321, 322 (D. Mass. 1987) (citing Bedel v.
    Thompson, 103 F.R.D. 78, 81 (S.D. Ohio 1984)); see also Boonev. General Motors Acceptance Corp., 682 F.2d 552, 554 (5th
    Cir. 1982)(the threat of inconsistent obligations, not
    multiple litigations, informs Fed. R. Civ. P. 19(a)
    considerations); Field v. Volkswagenwerk AG, 626 F.2d 293,
    301 (3d Cir. 1980) (similar).     Unlike a risk of inconsistent
    obligations, a risk that a defendant who has successfully
    defended against a party may be found liable to another party
    in a subsequent action arising from the same incident --
    i.e., a risk of inconsistent adjudications or results -- does
    not necessitate joinder of all of the parties into one action
    pursuant to Fed. R. Civ. P. 19(a).  See Field, 626 F.2d at
    301.  Moreover, where two suits arising from the same
    incident involve different causes of action, defendants are
    not faced with the potential for double liability because
    separate suits have different consequences and different
    measures of damages.  See In Re Torcise, 116 F.3d 860, 866
    (11th Cir. 1997).
        In this situation, defendants faced a federal action and a
    state action arising from the same incident.  In reasoning
    that defendants could be facing "inconsistent obligations,"
    the district court noted that defendants could be found
    liable to Delgado in federal court, but not liable to Ocasio
    in state court, or vice versa.  Although the court also
    looked to other factors in reaching its conclusion, it is
    this determination -- which is really a determination that
    defendants faced the threat of inconsistent results -- that
    grounded the court's ruling that Ocasio was a necessary party
    to this lawsuit.  Yet as we have explained, the mere
    possibility of inconsistent results in separate actions does
    not make the plaintiff in each action a necessary party to
    the other.  And even if it did, the fact remains that Ocasio
    and her father have separate causes of action based on
    different theories of recovery.  We therefore cannot sustain
    the court's ruling that Ocasio is a party both necessary and
    indispensable to this lawsuit.
                              III.
      Although we think the district court was likely correct in
  thinking that efficiency would be served if Delgado's claim
  and Ocasio's claim were litigated in the same proceeding,
  Fed. R. Civ. P. 19 does not permit us to treat this concern
     alone as a basis for refusing to exercise diversity
  jurisdiction over this case.  And whether wise or not, the
  lesson of the abstention cases is, of course, that federal
   jurisdiction should be asserted almost all the time.  We
  therefore are left with no choice other than to vacate the
         judgment and remand for further proceedings.
                        Vacated and remanded.
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