In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3456

Estate of Jose E. Alvarez, by Zulma Prieto,

Personal Representative, Ana L. Alvarez

and Jose R. Alvarez, by his natural parent

Ana Luisa Alvarez,

Plaintiffs-Appellees,

v.

Donaldson Company, Inc.,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend

Division.

No. 3:99-CV-194 RM--Robert L. Miller, Jr., Judge.

Argued April 3, 2000--Decided May 30, 2000

 Before Bauer, Flaum, and Williams, Circuit

Judges.

 Bauer, Circuit Judge. On April 1, 1999,

the Estate of Jose Alvarez filed a

wrongful death action, stemming from an

explosion at an ethylene oxide packaging

facility in Elkhart, Indiana, against the

Donaldson Company. On the final day

within the applicable statute of

limitations, the Estate moved to amend

its complaint to add 48 additional

defendants, some of which destroy

complete diversity. This appeal arises

out of the district court’s decision to

grant the Estate’s motion and its

subsequent dismissal of the case for lack

of complete diversity. 

 Donaldson argues that the district court

erred as a matter of law in dismissing

this case for lack of subject matter

jurisdiction. Donaldson contends that

because diversity was proper when the

action commenced it cannot be divested by

the subsequent addition of a nondiverse

party, citing the Supreme Court’s

decision in Freeport-McMoRAN, Inc. v. K N
Energy, 498 U.S. 426 (1991) (per curiam).

We review the dismissal for lack of

subject matter jurisdiction de novo.

Sapperstein v. Hager, 188 F.3d 852, 855

(7th Cir. 1999). 

 Donaldson tries to broaden the holding

in Freeport-McMoRan by stating that once

jurisdiction is established it cannot be

destroyed. Freeport-McMoRan, however,

looked at a limited part of diversity in

which there was a substitution of

parties. McMoRan, in a business

transaction unrelated to the litigation,

transferred its interest in the contract

to FMP Operating Company. FreeportMcMoRan, 498 U.S. at 428. Because FMPO

"was not an ’indispensable’ party at the

time the complaint was filed (in fact, it

had no interest whatsoever in the outcome

of the litigation until sometime after

suit was commenced) diversity was not

destroyed." Id. The Supreme Court

determined that once jurisdiction is

established it cannot be defeated by the

addition of a nondiverse party to the

action. Id. 

 In this case, however, the district

court was not confronted by the

substitution of parties but the addition

of 48 parties. Therefore the court found

that Freeport-McMoRan did not apply.

Other circuits have also held that

Freeport-McMoRan is limited to the

substitution of parties under Rule 25.

See Cobb v. Delta Exports Inc., 186 F.3d

675 (5th Cir. 1999); Ingram v. CSX, 146

F.3d 858 (11th Cir. 1998); see also Casas

Office Machines, Inc. v. Mita Copystar of

Am., Inc., 42 F.3d 668 (1st Cir. 1994);

Burka v. Aetna Life Ins. Co., 87 F.3d 478

(D.C. Cir. 1996). Further, the Supreme

Court in Freeport-McMoRan specifically

held that it was not overruling Owen

Equipment & Erection Co. v. Kroger, 437

U.S. 365, 375 (1978), which held that a

plaintiff may not bypass the jurisdiction

requirements by suing only the diverse

defendants and waiting for them to

implead the nondiverse defendants.

 The Estate amended the complaint to

include the 48 additional defendants only

after Donaldson identified them as

possible nonparties that may have been at

fault under the Indiana Comparative Fault

Act. Donaldson provided the names just

six days before the end of the statute of

limitations. This was clearly an addition
of parties, not a substitution. The

district court followed the rule of Owen

when it dismissed this case for lack of

jurisdiction stating, "requiring complete

diversity does not require constant

inquiry into the parties’ changing

citizenship; it simply requires

plaintiffs to establish diversity as part

of an amended complaint just as they did

for the original complaint."

 Donaldson further argues that the court

abused its discretion in granting the

Estate leave to amend the complaint. Rule

15(a) of the Federal Rules of Civil

Procedure provides that leave to amend

"shall be freely given when justice so

requires." Id. The amendment however

amounted to joinder under Fed.R.Civ.P.

19.

 Rule 19 of the Federal Rules of Civil

Procedure sets forth the procedure for

joining a party to a pending case.

Because Rule 19(a) only allows joinder if

it will not deprive the court of

jurisdiction, we must turn our analysis

to Rule 19(b). Kreuger v. Cartwright, 996

F.2d 928, 932 (7th Cir. 1993). Section

19(b) provides:

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 provisions in the judgment, by

the shaping of relief, or other measures,

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).

Further, Fed.R.Civ.P. 21 provides that

misjoinder is not grounds for dismissal.

 The factors of 19(b) were clearly met.

First, the absence of the 48 additional
parties would have been prejudicial to

the Estate. Under the Indiana Comparative

Fault Act, nonparties are assessed fault

but not liability. If fault were found

the Estate would be unable to recover

damages from them, requiring the Estate

to follow up in state court. Second, this

prejudice could not be lessened. Third,

the judgment without the additional

parties would not be adequate because the

Estate would have to relitigate in State

court to obtain any recovery from the

nonparties. Finally, the Estate can file

suit in state court against Donaldson and

all the nonparties in the Elkhart Circuit

Court.

 The district court correctly joined the

additional defendants as indispensable

parties and then dismissed the case for

lack of subject matter jurisdiction. The

district court is affirmed.