IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30942
CARRIE BADON; RAY BADON; RUSSELL BADON; JOE MAE
BADON-ROBERSON; SCOTTY JOSEPH BADON,
Plaintiffs-Appellants,
versus
R J R NABISCO INC; LIGGETT & MEYERS TOBACCO CO; AMERICAN
BRANDS INC; PHILIP MORRIS COMPANIES INC; B A T INDUSTRIES,
LTD; PELICAN CIGAR CO; MALONE & HYDE INC; SCHLESINGER
WHOLESALERS & AUTOMOTIVE CIGARETTE SERVICE INC; PHILIP
MORRIS INC; R J REYNOLDS TOBACCO CO; BROWN & WILLIAMSON
TOBACCO CO; BATUS HOLDINGS INC; AMERICAN TOBACCO
CO; LIGGETT GROUP INC; BROOKE GROUP LIMITED; HILL & KNOWLTON
INC; TOBACCO INDUSTRY RESEARCH COMMITTEE; COUNCIL FOR TOBACCO
RESEARCH USA INC; TOBACCO INSTITUTE INC; FORTUNE BRANDS INC;
LIGGETT & MYERS INC,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
December 21, 2000
Before KING, Chief Judge, GARWOOD and STEWART, Circuit Judges.
GARWOOD, Circuit Judge:
In this interlocutory appeal under 28 U.S.C. § 1292(b),
plaintiffs-appellants, Carrie Badon and certain of her relatives,
challenge the district court’s order overruling their motion to
remand this removed suit to the Louisiana court in which it was
filed. The relevant facts, procedural history and contentions of
the parties are set out in our August 16, 2000, opinion herein,
Badon v. RJR Nabisco Inc., 234 F.3d 382 (5th Cir. 2000), issued in
connection with our certification of the controlling issue of law
to the Supreme Court of Louisiana. By order issued November 27,
2000, the Louisiana Supreme Court declined to accept the
certification (Chief Justice Calagero and Justice Lemmon would
grant certification).
As noted in our prior opinion, the instant suit, originally
filed in a Louisiana court in May 1994, is on account of personal
injury to Carrie Badon, who allegedly incurred throat cancer,
diagnosed in 1993, as a result of having smoked cigarettes
manufactured and/or sold by defendants. The suit alleges that
Badon smoked cigarettes for approximately forty years and “became
addicted to them.” There are numerous named defendants,
principally cigarette manufacturers and their parents and
affiliates. Plaintiffs are all Louisiana citizens, and it is
conceded that the amount is controversy exceeds $75,000.00 and that
all defendants are diverse save only two Louisiana corporations
which are cigarette wholesalers. No retailers were sued.
Defendants removed the action on grounds of diversity of
citizenship, contending that the Louisiana wholesaler defendants
were fraudulently joined. Plaintiffs filed an unverified motion to
remand contending that the case was not timely removed, and that
2
the joinder of the Louisiana wholesalers was not fraudulent because
they had alleged valid causes of action against the Louisiana
wholesalers on the basis of redhibition under La. Civ. Code arts.
2520, 2524 and 2531, breach of warranty under La. Civ. Code art.
2475, and conspiracy under La. Civ. Code art. 2324 (characterized
by plaintiffs as “an agreement between all defendants to manipulate
nicotine in cigarettes with the intent to addict Carrie Badon”).
In reference to the redhibition and article 2475 breach of warranty
claims, it was not alleged that Badon purchased cigarettes from
either of the wholesalers, but rather that she purchased them from
retailers who had acquired them from the wholesalers. Defendants
filed their opposition to motions to remand, supported, inter alia,
by affidavits of officers of the Louisiana wholesalers denying the
allegations of conspiracy and averring, among other things, that
they sold the cigarettes unaltered in the original labeled and
sealed packages in which they received them from the manufacturers,
had nothing to do with their design, manufacture, content,
packaging or labeling, and had no specialized or superior knowledge
not available to the general public, and made no representations to
the public or any plaintiff, concerning nicotine levels in
cigarettes, or nicotine addiction or health risks associated with
smoking. Plaintiffs filed an unverified reply to defendants’
opposition to the motion to remand, contending only that the
removal was untimely and that recovery against the Louisiana
3
wholesalers on the basis of redhibition or breach of warranty was
possible even though there was no privity between them and
plaintiffs. Neither plaintiffs’ motion to remand nor their reply
to defendants’ opposition thereto was supported by any affidavit or
other summary judgment type evidence.1
The district court denied the motion to remand, ruling that
the removal was timely and that the Louisiana wholesalers were
fraudulently joined. The court noted that the only bases of
recovery asserted against the Louisiana wholesalers were
redhibition, breach of warranty of fitness, and conspiracy. As to
conspiracy, the court held that, on the basis of the defendants’
affidavits and “in light of plaintiffs’ lack of evidence,” there
was no reasonable possibility of recovery against the Louisiana
wholesalers. The court likewise reached the same ultimate
conclusion as to the redhibition and breach of warranty claims,
holding that the asserted defects in the cigarettes was not
redhibitory or within article 2475, that La. Civ. Code art. 2521
barred recovery because the dangers of smoking should have been
discovered by a reasonably prudent buyer, and that the Louisiana
wholesalers did not have a relationship to the consumer and the
manufacturers which was analogous to that of the distributor
1
The sole exception to this is that the motion to remand was
supported by the affidavit of plaintiffs’ attorney which merely
attempted to explain why citation had initially been long withheld
on the complaint.
4
defendant in Media Production Consultants, Inc. v. Mercedes Benz of
North America, 262 So. 2d 377 (La. 1972).
Plaintiffs did not seek reconsideration, but moved the
district court to certify its ruling denying the motion to remand
for interlocutory appeal under 28 U.S.C. § 1292(b). The district
court did so, and we granted leave to appeal.
In our prior opinion, we affirmed the district court’s rulings
that the removal was timely and that the conspiracy claim against
the Louisiana wholesalers was fraudulently joined because there was
no reasonable possibility of recovery thereon. Badon, 224 F.3d at
388-94. We reaffirm those holdings.
That left as the sole and determinative issue on appeal
whether it was demonstrated that plaintiffs had no reasonable
possibility of recovery on their articles 2520, 2524 and 2531
redhibition claim, and their article 2475 breach of warranty claim,
against the Louisiana wholesalers.2 We held that resolution of
this issue depended on answers to one or more of the following
three questions of Louisiana law as to which it appeared to us that
there are no clear controlling precedents in the decisions of the
Louisiana Supreme Court, namely: (1) whether the fact that smoking
cigarettes has serious adverse health affects and is addictive
2
As we observed, Badon, 224 F.3d at 394 n.18, plaintiffs have
consistently made it clear that, apart from their conspiracy claim,
they did not and do not seek to impose liability on the Louisiana
wholesalers on the basis of tort or products liability.
5
constitutes a redhibitive defect in the cigarettes or a defect
warranted against under article 2475; (2) whether it is judicially
known that at the relevant time there was such common knowledge of
the adverse affects of cigarette smoking as to preclude such
redhibition and article 2475 claims; and (3) whether the lack of
privity between the Louisiana wholesalers and Badon precludes her
redhibition and article 2475 claims against those wholesalers who
were not, and did not with respect to consumers occupy the position
of, manufacturers of the cigarettes.3 We accordingly certified the
following question of Louisiana law to the Supreme Court of
Louisiana:
“Does a consumer of cigarettes, who, without actual
knowledge of their addictiveness or of all their health
risks, purchased them at retail and smoked them from
about age sixteen in 1953 until 1993, and, as a result,
became addicted to them, suffered cancer diagnosed in
1993, and filed suit within a year thereafter, state with
respect to such purchases a claim for either redhibition
or for breach of warranty under article 2475, on the
basis of the fact that smoking cigarettes is addictive
and seriously harmful to health, as against the wholesale
distributors of those cigarettes with whom the consumer
was not in privity and who did not manufacture, or occupy
as to the consumer the position of manufacturer of, the
cigarettes, or hold themselves out as such, who sold the
cigarettes only in the unaltered original sealed and
labeled containers received from the manufacturers, who
made no representations respecting whether smoking
3
We held that under the undisputed summary judgment type
evidence there was no reasonable possibility of plaintiffs being
able to recover in redhibition or under article 2475 on the basis
that the Louisiana wholesalers occupied, vis-a-vis the consumer,
the position of manufacturer in the same (or an analogous) sense as
did the defendant distributor in Media Production Consultants, Inc.
We reaffirm that holding.
6
presented health risks or was addictive, and who neither
had nor claimed any greater knowledge concerning the
asserted defects in the cigarettes than that available to
members of the general public through the public media?”
As noted, the Louisiana Supreme Court declined the
certification.
Since the Louisiana Supreme Court declined the certificate,
the certified question is, in a sense, back before us. However, it
is important to note the context in which it is presented to us,
namely the context of a claim of fraudulent joinder as it bears on
removal jurisdiction. In that context, as we explained in Bobby
Jones Garden Apartments, Inc. v. Suleski, 391 F.2d 172 (5th Cir.
1968), we approach the matter somewhat differently than we would in
other contexts, where we simply make the best determination that we
can as to how the state courts would ultimately resolve the issue.
In Bobby Jones Garden Apartments, Inc., we observed:
“Unlike the parties who joust for victory on who wins or
loses our sole concern is: Who tries this case. State or
Federal Court? For to us we cannot escape the problem of
removability.” Id., 391 F.2d at 175 . . .
“This is an Erie problem in part, but only part. In the
usual diversity situation a Federal Court, no matter how
difficult the task, must ascertain (and then apply) what
the state law is. [citations omitted] But here the
question is whether there is arguably a reasonable basis
for predicting that the state law might impose liability
on the facts involved. . . .
Thus we get to the question: Is there a reasonably good
chance that Florida today will hold the Agent to some
liability?” Id., 391 F.2d at 176-77.
See also Parks v. New York Times Company, 308 F.2d 474, 479 (5th
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Cir. 1962) (“whether there was a reasonable basis in law and fact”
for the claim); Tedder v. F.M.C. Corporation, 590 F.2d 115, 117
(5th Cir. 1979) (“If there is no arguably reasonable basis for
predicting that state law might impose liability on the resident
defendants under the facts alleged, then the claim is deemed
fraudulent. . .”; removal proper because “there is no such
reasonable basis for predicting that the [plaintiff] could prevail
under Louisiana law as it stands today”); Jernigan v. Ashland Oil
Inc., 989 F.2d 812, 816 (5th Cir. 1993) (“If there is ‘arguably a
reasonable basis for predicting that the state law might impose
liability on the facts involved’, then there is no fraudulent
joinder”); Burden v. General Dynamics Corp., 60 F.3d 213, 217 (5th
Cir. 1995) (“whether, ‘as a matter of law, there [is] no reasonable
basis for predicting that plaintiff might establish liability
against a named in-state defendant in state court’”); Fields v.
Pool Offshore, Inc., 182 F.3d 353, 357 (5th Cir. 1999) (claim as to
defendant is fraudulent, so as not to prevent removal, where court
“determines, after resolving ‘all disputed questions of fact and
any ambiguities in the current controlling substantive law in
plaintiff’s favor’ that there is ‘no reasonable basis for
predicting that the plaintiff might establish liability’” against
that defendant).4
4
Plaintiffs appear to argue that any mere theoretical
possibility of recovery under local law–no matter how remote or
fanciful–suffices to preclude removal. We reject this contention.
8
If the Louisiana Supreme Court had accepted the certificate
and answered the certified question in the negative, we would, of
course, know that there is not arguably any reasonable basis for
predicting that plaintiffs might establish liability against the
in-state defendants on the redhibition and article 2475 claims.5
However, the Louisiana Supreme Court declined the certificate. We
are thus thrown back on our own resources. Our prior opinion
reviews and analyzes the Louisiana authorities on these issues.
Badon, 224 F.3d at 394-400. No good purpose would be served by
repeating that exercise. We conclude that there is arguably a
reasonable basis for predicting that plaintiffs might establish
redhibition or article 2475 liability against the Louisiana
wholesalers under Louisiana law as it stands today–i.e., that there
is arguably a reasonable basis for predicting that under Louisiana
law as it stands today the answer to the certified question is
“yes.” Lest we be misunderstood, we stress that we are not
predicting that the Louisiana Supreme Court would or even probably
would actually so hold or that in our opinion Louisiana law does
indeed afford plaintiffs a redhibition or article 2475 claim
As the cited authorities reflect, there must at least be arguably
a reasonable basis for predicting that state law would allow
recovery in order to preclude a finding of fraudulent joinder.
5
Conversely, if the Louisiana Supreme Court had answered the
certified question in the affirmative we would know that there is
at least a reasonable basis for predicting that plaintiffs might
establish liability against the in-state defendants on those
claims.
9
against the wholesalers in these circumstances. As the cited
passages of our prior opinion reflect, Louisiana law on these
points is simply not reasonably clear. We may well tend to believe
that the probabilities ultimately favor Louisiana denying
redhibition or article 2475 recovery against the wholesalers in
these circumstances. That might well be our best Erie guess. But
that is not the issue before us in this fraudulent joinder removal
case. What we do hold is that there is at least an arguably
reasonable basis for predicting that Louisiana would allow
redhibition or article 2475 recovery against the wholesalers.
For this reason, we hold that the district court erred in
denying the motion to remand. We accordingly remand the case to
the district court for further proceedings consistent herewith.
REMANDED
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