IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-60714
_____________________
In re: BENJAMIN MOORE & CO.,
wholly-owned subsidiary of
Berkshire Hathaway Inc., et al.,
Petitioners.
*********************************************
DANNY BORDEN, et al.,
Plaintiffs - Respondents.
_________________________________________________________________
Petition for Writ of Mandamus to
the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
December 18, 2002
Before JOLLY, JONES, and EMILIO M. GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Seventeen plaintiffs, all Mississippi residents, filed suit
against diverse paint manufacturers and distributors, as well as 33
Mississippi retail establishments, asserting product liability
claims for alleged exposure to paint that contained lead. The
diverse manufacturers and distributors removed the case to federal
court, claiming that the Mississippi retail establishments were
fraudulently joined as defendants. The plaintiffs moved to remand.
1
In opposition to the motion to remand, the removing defendants
asserted, in a footnote, that the plaintiffs were fraudulently
misjoined. They pointed out that the plaintiffs’ claims did not
arise out of the same transaction or occurrence, nor the same
series of transactions or occurrences. In support, they cited
Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir.
1996), abrogated on other grounds, Cohen v. Office Depot, Inc., 204
F.3d 1069 (11th Cir. 2000). In Tapscott, one group of plaintiffs
sued a group of non-diverse defendants in state court for fraud
arising from the sale of automobile service contracts. 77 F.3d at
1355, 1359-60. In the same lawsuit, another group of plaintiffs
sued an entirely separate group of diverse defendants for fraud
arising from the sale of service contracts covering retail
products. Id. The Eleventh Circuit affirmed the district court’s
denial of the plaintiffs’ motion to remand, stating that the
plaintiffs’ misjoinder of the two groups of unrelated defendants
was “so egregious as to constitute fraudulent joinder.” Id. at
1360.
The district court in this case granted the motion to remand
(unlike the district court in Tapscott, which denied remand). The
removing defendants moved for reconsideration, arguing that the
fraudulent misjoinder of the plaintiffs constituted fraudulent
joinder under the federal removal statute. They requested that the
district court reconsider its remand order, sever the claims of the
2
seventeen plaintiffs, and remand only the claims of those four
plaintiffs whose testimony indicated that they had a possibility of
recovery against the non-diverse defendants.
The district court denied the motion for reconsideration,
holding that the defendants failed to establish any of the grounds
for granting a motion for reconsideration under Federal Rule of
Civil Procedure 59(e): (1) an intervening change in controlling
law; (2) the availability of new evidence not previously available;
or (3) the need to correct a clear error of law or prevent manifest
injustice.
The removing defendants filed a petition for writ of mandamus
on August 30, 2002. The defendants argued that the district
court’s failure to consider misjoinder of plaintiffs before
determining whether diversity jurisdiction existed deprived them of
their right to a federal forum. They asked us to vacate the remand
order, remand the case to the district court, and require the
district court to assess the misjoinder of plaintiffs before
determining whether it had diversity jurisdiction. According to
the defendants, only four of the seventeen plaintiffs have any
possibility of recovery against the non-diverse defendants;
therefore, the other thirteen plaintiffs’ claims should be severed
and the district court should retain jurisdiction over their
claims.
3
The removing defendants moved for leave to file an amended
petition for writ of mandamus on September 9, to address the
district court’s amended order entered on September 3. In that
September 3 order, the district court amended its order denying the
defendants’ motion for reconsideration. The district court noted
that the fraudulent misjoinder argument “was not made by defendants
in their notice of removal or response to the motion for remand,”
and stated that it was inappropriate for the defendants to advance
new arguments in a motion for reconsideration.
We denied the petition for writ of mandamus without prejudice,
stating:
Petitioners’ motion is framed around the
district court’s failure to address whether
diversity jurisdiction was fraudulently
defeated because among the seventeen
plaintiffs herein, who have nothing in common
with each other, only four have asserted
claims that relate in any way to the
nondiverse defendants. It may thus be
contended that the other thirteen did raise
claims cognizable in diversity jurisdiction.
See Tapscott .... Further, it might be
concluded that misjoinder of plaintiffs should
not be allowed to defeat diversity
jurisdiction. See Tapscott id. (holding
misjoinder may be as fraudulent as the joinder
of a resident against whom a plaintiff has no
possibility of a cause of action). The
district court no doubt inadvertently
overlooked that this point was timely raised,
but the point cannot be ignored, since it goes
to the court’s jurisdiction and to the
defendants’ rights to establish federal
jurisdiction following removal. Because we
are confident that the able district court did
not intend to overlook a feature critical to
4
jurisdictional analysis, there is no reason to
grant mandamus relief at this time.
In Re Benajmin Moore & Co., 309 F.3d 296 (5th Cir. 2002).
On October 14, the district court issued another opinion to
clarify its treatment of the defendants’ fraudulent misjoinder
allegations. The district court stated that it “was aware of the
defendants’ argument, duly considered it, and found it to be
without merit.” The district court explained that it did not
address the argument in its initial opinion because the defendants
presented the claim “as a bare, conclusory allegation” without any
argument or evidentiary support. The district court stated that
the new arguments advanced in the defendants’ motion for
reconsideration should have been offered earlier.
On October 30, the defendants filed a second Petition for Writ
of Mandamus. They request that we order the district court to:
(1) address the joinder of plaintiffs; (2) sever the plaintiffs who
are clearly improperly joined; and (3) retain jurisdiction where
the remaining plaintiffs have complete diversity with defendants.
On November 12, 2002, the district court issued a memorandum
order denying the defendants’ Joint Motion to Recall Remand Order
and Joint Motion for Reconsideration. In that opinion and order,
the district court stated, once again, that it had considered and
rejected the defendants’ fraudulent misjoinder argument.
We first must determine whether we have jurisdiction to
consider the defendants’ requests for relief. Congress has limited
5
our jurisdiction to review remand orders issued pursuant to 28
U.S.C. § 1447(c) (requiring remand if district court lacks subject
matter jurisdiction): Except in civil rights cases, “[a]n order
remanding a case to the State court from which it was removed is
not reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d). The
defendants maintain that § 1447(d) does not apply, and that we have
jurisdiction to address the issue of misjoinder by way of mandamus
because joinder determinations “preced[e] the remand in logic and
in fact.” Arnold v. State Farm Fire & Casualty Co., 277 F.3d 772,
776 (5th Cir. 2001); Doleac v. Michalson, 264 F.3d 470, 489 (5th
Cir. 2001); Tillman v. CSX Transp., Inc., 929 F.2d 1023, 1026-29
(5th Cir. 1991). The plaintiffs contend, however, that we do not
have jurisdiction to review either the remand order or the district
court’s rejection of the misjoinder claim. The plaintiffs maintain
that resolution of joinder issues is inappropriate unless and until
the court determines that it has jurisdiction, and that the
defendants’ arguments about the propriety of joinder should be
addressed in state court under state joinder rules.
As we have stated earlier, the defendants seek mandamus to
order the district court to take three actions: (1) address the
joinder of plaintiffs; (2) sever the plaintiffs who are clearly
improperly joined; and (3) retain jurisdiction where the remaining
plaintiffs have complete diversity with defendants. The
defendants’ first request is moot, because the district court’s
6
orders make clear that it considered, but rejected, the defendants’
argument that the plaintiffs are fraudulently misjoined.* As we
shall explain, under our precedent, we do not have jurisdiction to
grant the remaining relief requested by the defendants. Thus,
without detracting from the force of the Tapscott principle that
fraudulent misjoinder of plaintiffs is no more permissible than
fraudulent misjoinder of defendants to circumvent diversity
jurisdiction, we do not reach its application in this case.
Although the defendants are correct that our court has held
that joinder decisions are separable from a decision to remand a
case for lack of subject matter jurisdiction, Doleac and Arnold
hold that more is required for the court to review the joinder
decision. In addition to logically preceding the remand, a
separable order also must be “conclusive, in the sense of being
functionally unreviewable in state court.” Arnold, 277 F.3d at
776. Moreover, the order must “also be independently reviewable by
*
Perhaps the district court would have taken a more favorable
view of the defendants’ argument had it been raised earlier (either
in the removal papers, in a motion to sever, or in the defendants’
initial response to the motion to remand), and had it been
supported by evidence. Instead, as the district court observed,
the defendants mentioned the issue only in a footnote in their
opposition to the motion to remand. They did not present any
supporting arguments or evidence until they moved for
reconsideration after the district court had already remanded the
case. Although the point goes to the court’s jurisdiction, as well
as to the defendants’ right to a federal forum, the point cannot be
sustained simply on the basis of conclusory allegations unsupported
by any evidence or argument.
7
means of devices like the collateral order doctrine.” Id.; see
also Doleac, 264 F.3d at 478.
Doleac involved a remand following the district court’s
decision to allow an amendment adding a nondiverse defendant. Our
court held that the district court’s decision to allow the
amendment was separable from the remand, but dismissed the appeal
because the decision allowing the amendment did not satisfy the
collateral order doctrine. In their original petition for writ of
mandamus, the defendants argued that Doleac does not bar review of
the district court’s joinder decision because, unlike the defendant
in Doleac, they are pursuing mandamus relief. In their reply to
the plaintiffs’ response to the renewed petition for writ of
mandamus, the defendants state, without citation of authority, that
the collateral order rule does not apply to writs of mandamus. In
Arnold, however, our court dismissed the appeal and denied mandamus
relief because the district court’s decision to disregard class
action allegations, although separable from the decision to remand
for lack of subject matter jurisdiction, was not a reviewable
collateral order. 277 F.3d at 777. The court observed further
that “engaging in appellate review of the district court’s joinder
decision would lead to an impermissible advisory opinion, for ...
our decision cannot reverse the remand order, which in any event
has no effect, preclusive or otherwise, on the ongoing state
litigation.”
8
Under Doleac and Arnold, we do not have jurisdiction to review
the district court’s decision regarding misjoinder. Although that
decision is separable from, and logically precedes, the remand, it
is not conclusive, because the state court can consider misjoinder
of the plaintiffs on remand. Moreover, the decision is not
independently reviewable under the collateral order doctrine. In
sum, under Doleac and Arnold, the district court’s decision on
misjoinder, like its decision to remand the case to state court, is
not reviewable “by appeal or otherwise.” 28 U.S.C. § 1447(d);
Arnold, 277 F.3d at 777. Accordingly, the petition for writ of
mandamus is
D E N I E D.
9