Pacheco De Perez v. AT&T Co.

United States Court of Appeals,

Eleventh Circuit.

No. 96-8792.

Ligia PACHECO DE PEREZ, individually, et al., Plaintiffs-Appellants,

v.

AT&T COMPANY, et al., Defendants-Appellees.

Cruz SIGALA, and Norma Sofia De Sigala, individually and on behalf of the Estate of Cruz
Fernando Sigala and Monica Huornug, as Succession Representative of Cruz Fernando Sigala,
Plaintiffs-Appellants,

v.

AT&T COMPANY, et al., Defendants-Appellees.

April 29, 1998.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:95-CV-
2749-FMH), Frank M. Hull, Judge.

Before BLACK and BARKETT, Circuit Judges, and PROPST*, Senior District Judge.

BARKETT, Circuit Judge:

In these two consolidated cases, plaintiffs-appellants, individuals injured in a 1993 gas

pipeline explosion in Venezuela, appeal from the district court's order denying their motion to

remand the case to the Georgia state courts and dismissing the action under the doctrine of forum

non conveniens.

The explosion, which killed fifty people and injured many others, occurred during the laying

of fiber-optic cable in the town of Tejerias, Venezuela, when a machine used to dig a trench for the

*
Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of Alabama,
sitting by designation.
cable struck a gas pipeline. Plaintiffs allege that defendants-appellees AT&T Company ("AT&T"),1

a New York corporation, and several citizens of Georgia who worked for AT&T, participated in the

acts or omissions that caused the explosion.2

Before filing the present actions, many of the plaintiffs in this case filed and dismissed

actions based on the same claims against the same or similar defendants in other federal district

courts. Specifically, most of the plaintiffs brought two diversity tort actions in the United States

District Court for the Eastern District of California, which they voluntarily dismissed, and later filed

two similar suits in the United States District Court for the District of New Jersey, which they also

voluntarily dismissed. The several suits named AT&T, AT&T International, and AT&T Andinos,

among others, as potentially liable defendants.3

1
Defendant AT&T is listed as "AT&T Company" in the court records, presumably because
that is what is listed on plaintiffs' original complaints. The entity is actually "AT&T Corp." We
assume that the two entities are the same for purposes of this decision, and refer to the corporate
defendant as "AT&T."
2
The Venezuelan national telephone company subcontracted the cable-laying project to
AT&T Andinos, a subsidiary of AT&T International. The Georgia resident employees of AT&T
named as individual defendants assisted AT&T Andinos in preparing the bid for the project.
AT&T Andinos then subcontracted the trenching portion of the project to Abengoa Venezuela,
S.A., a Venezuelan corporation. Abengoa's machine struck the pipeline.
3
Forty-three of the fifty-six plaintiffs in this case were among the two sets of plaintiffs that
twice filed and twice voluntarily dismissed previous suits against AT&T or its subsidiaries for
claims arising out of the pipeline explosion. One set of plaintiffs, referred to as the "Relsolelo
plaintiffs" by the district court, filed an action in the Eastern District of California against AT&T
based on the alleged tortious conduct of AT&T Andinos arising out of the explosion. The
Relsolelo plaintiffs voluntarily dismissed their action on March 31, 1994. Several months later,
these same plaintiffs sued AT&T International and AT&T Andinos, among others, in New
Jersey. The Relsolelo plaintiffs voluntarily dismissed this action on November 18, 1994. A
second set of plaintiffs, referred to as the "Rojas plaintiffs" by the district court, filed an action in
the Eastern District of California against AT&T International for tortious conduct arising out of
the explosion. After voluntarily dismissing that action, the Rojas plaintiffs filed a second action
in New Jersey against AT&T International, which they also voluntarily dismissed.

2
 Thereafter, plaintiffs filed two separate actions in Georgia state court, asserting various state

law claims against AT&T and the individual employees of AT&T. Defendants removed the cases

to the United States District Court for the Northern District of Georgia. The district court

consolidated the two actions, denied the plaintiffs' motion to remand, and dismissed the consolidated

actions under the doctrine of forum non conveniens.

The threshold question on appeal is whether, as the plaintiffs argue, the district court should

have remanded the case back to the Georgia state court for lack of federal jurisdiction. Although

there is complete diversity among the parties, removal of a case on diversity grounds is not permitted

if one or more of the defendants is a citizen of the state in which the suit was originally filed. 28

U.S.C. § 1441(b). Accordingly, because the individual defendants in this case are Georgia citizens,

removal would not ordinarily be permitted on diversity grounds. The defendants argue, however,

that the presence of the Georgia defendants should not prevent removal of the plaintiffs' lawsuits

because the Georgia defendants were fraudulently joined in order to defeat original diversity

jurisdiction.

The defendants further assert that federal question jurisdiction exists in this case under four

alternative theories. First, the defendants maintain that the plaintiffs' attempt to "artfully plead" their

state-law complaint so as to avoid the preclusive effect of the voluntary dismissals of their prior

federal lawsuits presents a substantial federal question sufficient to support federal jurisdiction.

Second, they argue that the plaintiffs' complaint presents a substantial federal question because the

plaintiffs must rely on a federal treaty to prove that they have standing to proceed in the Georgia

state courts. Third, the defendants argue that the lawsuit involves the federal common law of foreign

relations because the litigation implicates the national interests of Venezuela. Fourth, the defendants

3
assert that the district court had the authority to exercise supplemental jurisdiction over this case

under the All Writs Act, 28 U.S.C. § 1651, to prevent frustration of orders made in related lawsuits

pending before the same district court judge.4

We conclude that federal question jurisdiction does not exist under any of the defendants'

theories. We further conclude that the record does not support the defendants' assertion of

fraudulent joinder of the Georgia resident defendants. Because federal jurisdiction is lacking in this

case, the district court should have granted the plaintiffs' motion to remand.5

4
Defendants suggest that we need not reach the difficult and complex issues of federal
question jurisdiction and fraudulent joinder because resolution of the forum non conveniens issue
is much simpler. Defendants argue that because there is original diversity jurisdiction in this
case, and because removal by the resident defendants is a procedural, and not a jurisdictional,
defect, see, e.g., Korea Exchange Bank v. Trackwise Sales Corp., 66 F.3d 46, 50 (3d Cir.1995);
Borg-Warner Leasing v. Doyle Elec. Co., 733 F.2d 833, 835 n. 2 (11th Cir.1984), we can
exercise our discretion to affirm the district court's forum non conveniens ruling without reaching
the intricacies of federal question jurisdiction and fraudulent joinder. Defendants point to cases
in which courts have avoided questions of subject matter jurisdiction where the jurisdictional
issue is difficult and "the case may be disposed of on a simpler ground." Cantor Fitzgerald, L.P.
v. Peaslee, 88 F.3d 152, 155 (2d Cir.1996). We are not persuaded by the defendants' arguments.
First, that removal of a case with resident defendants is a procedural defect does not render that
defect meaningless; rather, the defect is waivable, and in this case the plaintiffs have not waived
their objection to removal on the grounds that some of the defendants are Georgia residents.
Second, the Supreme Court has recently declined to endorse the approach taken by some of the
courts of appeals of assuming jurisdiction for the purpose of passing upon the merits of an
action. See Steel Co. v. Citizens for a Better Environment, --- U.S. ----, 118 S.Ct. 1003, ---
L.Ed.2d ---- (1998) (rejecting the so-called "doctrine of hypothetical jurisdiction"). Important
jurisdictional questions cannot be ignored merely because they are difficult. To do otherwise
would allow defendants to evade the statutory requirements of § 1441(b) and allow the federal
courts to make significant dispositive rulings in a case over which the federal courts may lack
jurisdiction.
5
The district court based its assumption of jurisdiction over this case upon the defendants' first
two theories of federal jurisdiction, and did not address the defendants' other theories. Because
the district court did not reach the remaining theories, at least one of which (the fraudulent
joinder issue) ordinarily requires an underlying factual determination, the dissent believes that
we should allow the district court to consider these possible bases for federal jurisdiction in the
first instance. We are mindful of the general rule that a court of appeals will not consider issues

4
I. Background Principles

We review the district court's denial of the plaintiffs' motion to remand, which involves

questions of federal subject matter jurisdiction, de novo. See BIW Deceived v. Local S6, Ind. Union

of Marine and Shipbuilding Workers of America, 132 F.3d 824 (1st Cir.1997) (subjecting denial of

motion to remand to de novo review); Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th

Cir.1996) (holding that subject matter jurisdiction determinations are subject to de novo review).

In a motion to remand, the removing party bears the burden of showing the existence of federal

jurisdiction. Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir.1996). We construe removal

jurisdiction narrowly and resolve any doubts regarding the existence of federal jurisdiction in favor

of the non-removing party, in this case the plaintiffs, Diaz, 85 F.3d at 1505.

not reached by the district court, especially where the issues involve questions of fact. See, e.g.,
Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); Stewart v.
Dep't of Health and Human Serv., 26 F.3d 115, 115-16 (11th Cir.1994). This rule is pragmatic
in nature, however, and is "not a jurisdictional limitation." Ochran v. United States, 117 F.3d
495, 502 (11th Cir.1997) ("[A]lthough the general rule is that we do not address arguments that
were not addressed by the district court, we unquestionably have the discretion to do so.").
Based upon the particular circumstances presented by this case, we conclude that it is
appropriate to exercise our discretion to reach the jurisdictional theories not addressed by the
district court. This is not a case where the parties failed to raise the arguments below—both
sides vigorously argued each theory before the district court, and offered evidence in support of
their respective positions. Indeed, AT&T, the party who bears the burden of proving the
existence of federal jurisdiction, does not argue on appeal that the case should be remanded for
further consideration; rather, AT&T contends that the record fully supports each of its alternate
theories of jurisdiction. The voluminous record in this case more than adequately sets forth the
factual and legal grounds for the parties' arguments on each of the jurisdictional theories. In
these circumstances, concerns of judicial economy and fairness to the parties counsel in favor of
our disposing of all of the defendants' asserted grounds of federal jurisdiction. See id. (noting
that judicial economy would not be served by remanding case to district court where both parties
had briefed the issue and the court had expended considerable time analyzing claim not
considered by the district court).

5
 An action filed in state court may be removed to federal court based upon diversity or

federal question jurisdiction. 28 U.S.C. § 1441(a), (b). Diversity will not support removal

jurisdiction, however, if any of the properly joined defendants are citizens of the state in which the

suit was originally filed. See id. § 1441(b). The citizenship of the parties does not matter if there

is federal question jurisdiction. Id. Federal question jurisdiction exists if the plaintiffs' suit "arises

under" the "Constitution, treaties or laws of the United States." Id.; 28 U.S.C. § 1331. In general,

a case "arises under" federal law if federal law creates the cause of action, or if a substantial disputed

issue of federal law is a necessary element of a state law claim. Franchise Tax Bd. v. Construction

Laborers Vacation Trust, 463 U.S. 1, 9-10, 13, 103 S.Ct. 2841, 2846, 2848, 77 L.Ed.2d 420 (1983).

The determination of whether federal question jurisdiction exists must be made on the face of the

plaintiff's well-pleaded complaint; an anticipated or even inevitable federal defense generally will

not support removal based upon federal question jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S.

386, 392-93, 107 S.Ct. 2425, 2429-30, 96 L.Ed.2d 318 (1987).

II. Four Alternative Theories of Federal Question Jurisdiction

A. Res Judicata

The defendants first argue that the plaintiffs' attempt to avoid the preclusive effect of their

prior federal lawsuits by "artfully pleading" their complaint to contain only state law claims creates

a federal issue sufficient to support federal jurisdiction in this case. The district court accepted this

argument, holding that the doctrine of res judicata provides one alternative ground for federal

subject matter jurisdiction over the plaintiffs' suit. Specifically, the district court found that those

plaintiffs who had twice filed and twice dismissed the prior actions in other federal courts could not

6
avoid the preclusive effect of the "two dismissal" rule of Federal Rule of Civil Procedure 41(a)(1).6

Under Rule 41(a)(1), a second voluntary dismissal of a complaint operates as an adjudication on the

merits that has a preclusive effect in subsequent litigation. While noting that the prior suits were

brought against AT&T International and its Venezuelan subsidiary—and not AT&T Corp.—the

district court concluded that AT&T Corp. and AT&T International were in "privity" with one

another so as to permit AT&T Corp. to assert the preclusive effect of Rule 41(a)(1) in this litigation.

Construing the plaintiffs' current suit as an attempt to make an "end run" around the prior federal

adjudication, the district court determined that it had removal jurisdiction in order to prevent this

type of forum shopping, and exercised supplemental jurisdiction over those parties and claims who

were not bound by the two dismissal rule.

On appeal, the plaintiffs argue that the district court committed clear error in finding AT&T

Corp. in privity with AT&T International on the sole basis that AT&T International is a

wholly-owned subsidiary of AT&T Corp. See Hart v. Yamaha-Parts Distrib., Inc., 787 F.2d 1468,

1472-73 (11th Cir.1986) (holding that the determination of whether a parent company and its

subsidiary are in privity for res judicata purposes must be based upon specific facts showing that the

two entities are "alter egos" of each other). Plaintiffs further argue that, even if the two corporations

are in privity, a defense of res judicata will not support federal question jurisdiction.

We need not address the privity question, as the recent Supreme Court decision in Rivet v.

Regions Bank of Louisiana, --- U.S. ----, 118 S.Ct. 921, --- L.Ed.2d ---- (1998), explicitly holds that

6
Rule 41(a)(1) provides that "[u]nless otherwise stated in the notice of dismissal or
stipulation, the dismissal [under this Rule] is without prejudice, except that a notice of dismissal
operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any
court of the United States or of any state an action based on or including the same claim."
Fed.R.Civ.P. 41(a)(1).

7
"claim preclusion by reason of a prior federal judgment is a defensive plea that provides no basis

for removal under [28 U.S.C.] § 1441(b)." Before Rivet was decided, a number of courts of appeals

had interpreted a footnote to the Supreme Court's decision in Federated Department Stores, Inc. v.

Moitie, 452 U.S. 394, 397 n. 2, 101 S.Ct. 2424, 2427 n. 2, 69 L.Ed.2d 103 (1981), as providing a

ground for federal jurisdiction based upon the preclusive effect of a prior federal judgment. See,

e.g., Rivet, (collecting cases). In Rivet, however, the Court clarified "that Moitie did not create a

preclusion exception to the rule, fundamental under currently governing legislation, that a defendant

cannot remove on the basis of a federal defense." Id. at ----, 118 S.Ct. at 926. Therefore, whether

or not AT&T can claim the preclusive benefit of the plaintiffs' prior voluntary dismissals, the

defendants' argument that such a defense of preclusion confers federal jurisdiction over this case is

foreclosed by Rivet.

B. Do Plaintiffs' Claims "Arise Under" a Federal Treaty?

Defendants next argue, as their second basis for removal jurisdiction, that an essential part

of the plaintiffs' causes of action requires interpretation of a federal treaty. Specifically, defendants

contend that plaintiffs' success on their state law claims depends upon an interpretation of the Treaty

of Peace, Friendship, Navigation, and Commerce between the United States and Venezuela, Jan. 20,

1836, 8 Stat. 466, which provides Venezuelan citizens with access to the courts of the United States.

According to the defendants, the treaty is implicated in this case because of a provision of the

Georgia civil code which states that:

The citizens of other states of the United States or of foreign states at peace with this state
shall, by comity, be allowed the privilege of suing in the courts of this state and of giving
evidence therein, as long as the same comity is extended in the courts of the other states to
the citizens of this state.

8
Ga.Code. Ann. § 1-2-10 (1990). Defendants argue that under § 1-2-10, plaintiffs cannot proceed

on their tort actions in the Georgia state courts without showing that the Venezuelan courts extend

the requisite comity to Georgia citizens, and that in order to make this showing, the plaintiffs must

rely on the treaty. The district court accepted the defendants' argument, and held that "[b]ecause

Plaintiffs' standing—a critical element of their causes of action—is determined by interpretation of

a treaty, a substantial federal question is presented on the face of Plaintiffs' Complaint, and removal

is proper." District Court Opinion at 7.7

In reaching its conclusion, the district court relied upon Kern v. Jeppesen Sanderson, Inc.,

867 F.Supp. 525 (S.D.Tex.1994), which held that a similar provision of Texas law required an

interpretation of an international treaty on the issue of standing and, therefore, a substantial federal

issue was presented by the plaintiffs' state law complaint. The holding in Kern, however, has been

rejected by the Fifth Circuit. See Torres v. Southern Peru Copper Corp., 113 F.3d 540, 542 (5th

Cir.1997). In Torres, the Fifth Circuit considered the same provision of the Texas civil code, which

authorizes wrongful death actions brought by citizens of foreign nations provided that "the country

has equal treaty rights with the United States on behalf of its citizens." Tex. Civ. Prac. & Rem. §

71.031 (Vernon 1986). The Fifth Circuit rejected the reasoning set forth in Kern, stating:

At the outset we reject [the defendant's] contention that Tex. Civ. Prac. & Rem.Code §
71.031 confers federal question jurisdiction.... The mere fact that section 71.031 requires
a Texas state court to examine treaties to determine whether a plaintiff has standing is
insufficient by itself to create federal jurisdiction.

Torres, 113 F.3d at 542.

7
We use the term "standing" because that is how the parties and some courts refer to the
ability of a plaintiff to proceed in state court under statutes like the one in Georgia. As used in
this opinion, however, "standing" does not refer to Article III standing, which implicates the
subject matter jurisdiction of the federal courts.

9
 In this case, we agree with the Fifth Circuit. We conclude that the need to look to the treaty

to satisfy the Georgia code provision does not present a federal question substantial enough to place

the plaintiffs' state law tort actions within the jurisdiction of the federal courts. As the Supreme

Court has emphasized, "the mere presence of a federal issue in a state cause of action does not

automatically confer federal-question jurisdiction." Merrell Dow Pharm., Inc. v. Thompson, 478

U.S. 804, 813, 106 S.Ct. 3229, 3234, 92 L.Ed.2d 650 (1986). Defendants argue that because

resolution of the treaty issue may determine whether the plaintiffs could proceed at all on their

causes of action, the federal issue is essential to plaintiffs' state law actions. While this argument

has superficial appeal, it does not withstand the careful scrutiny required of courts conducting an

inquiry into federal jurisdiction.8

We find instructive the Supreme Court's decision in People of Puerto Rico v. Russell, 288

U.S. 476, 53 S.Ct. 447, 77 L.Ed. 903 (1933), in which the Court held that federal jurisdiction was

lacking where the plaintiff's right to proceed in the courts on its state law based cause of action was

authorized by a federal statute.9 In Russell, the Court stated that:

8
In Merrell Dow, the Court rejected a "bright-line" approach to federal question jurisdiction,
stating that "[t]here is no "single, precise definition' of that concept; rather, "the phrase "arising
under" masks a welter of issues regarding the interrelation of federal and state authority and the
proper management of the federal judicial system.' " Id. at 808, 106 S.Ct. at 3232 (quoting
Franchise Tax Bd., 463 U.S. at 8, 103 S.Ct. at 2845).
9
Russell involved the attempt by the government of Puerto Rico to collect taxes from
corporations and the resistance of those entities to the territory's efforts. Initially, the
corporations filed suit in federal district court in Puerto Rico seeking injunctions against the
collection of taxes. Congress passed a law forbidding such suits. The Supreme Court then
declared that the previous injunction cases were abated by the statute, and the initial lawsuits
were dismissed. Subsequently, Congress enacted a statute giving Puerto Rico the power to
collect the taxes at issue in the prior cases in suits at law, rather than through summary process.
The respondents argued that because the authority to proceed in the courts on the enforcement
action came from federal law, the suit was one arising under the laws of the United States.

10
 Federal jurisdiction may be invoked to vindicate a right or privilege claimed under a federal
statute. It may not be invoked where the right asserted is nonfederal, merely because the
plaintiff's right to sue is derived from federal law, or because the property involved was
obtained under federal statute. The federal nature of the right to be established is
decisive—not the source of the authority to establish it.

Id. at 483, 53 S.Ct. at 449-50 (citations omitted). Although factually distinct, Russell is analytically

analogous. As in Russell, the plaintiffs here have a substantive cause of action based in state law,

but their right to proceed in a particular court system finds its source in federal law. In both cases,

the federal law at issue creates a procedural right of access to the courts that is antecedent to, and

separate from, the plaintiffs' state-based substantive cause of action. See Gully v. First Nat'l Bank

in Meridian, 299 U.S. 109, 116, 57 S.Ct. 96, 99, 81 L.Ed. 70 (1936) ("Here the right to be

established is one created by the state. If that is so, it is unimportant that federal consent is the

source of state authority."); cf. Buechold v. Ortiz, 401 F.2d 371, 372 (9th Cir.1968) (holding that

a similar treaty granting access to United States courts but not establishing substantive rights does

not create a right "arising under" the treaties of the United States for purposes of 28 U.S.C. §

1331).10 As the Court in Gully explained:

10
In contrast, where a treaty creates substantive rights that form an essential element of a
plaintiff's cause of action, federal question jurisdiction will likely exist. In Hidalgo County
Water Control and Improvement Dist. v. Hedrick, 226 F.2d 1 (5th Cir.1955), for example, the
plaintiffs sued defendants to enjoin the latter's use of the waters of the Rio Grande. The
municipal plaintiffs had been diverting the waters for irrigation and other community uses and
wanted to prevent the private landowner defendants from depleting the river's water source. At
common law, however, the defendants, whose land was located adjacent to the river, had priority
of right over the plaintiffs, whose land was not adjacent. The plaintiffs argued that a 1945 treaty
between the United States and Mexico created and protected the plaintiffs' right to continue to
use the waters without interference from the defendants. The court held that it had original
federal jurisdiction over the action under 28 U.S.C. § 1331 because the determination of which
party would prevail depended upon whether the treaty did indeed confer superior rights upon the
plaintiffs. Here, in contrast, the defendants have not shown that the treaty between Venezuela
and the United States creates a substantive right that is essential to the plaintiffs' state law cause
of action.

11
 If we follow the ascent far enough, countless claims of right can be discovered to have their
source or their operative limits in the provisions of a federal statute or in the Constitution
itself with its circumambient restrictions upon legislative power. To set bounds to the
pursuit, the courts have formulated the distinction between controversies that are basic and
those that are collateral, between disputes that are necessary and those that are merely
possible.

299 U.S. at 118, 57 S.Ct. at 100. Therefore, although determination of whether the treaty supplies

the necessary comity required by the Georgia statute may be in some sense outcome-determinative

in plaintiffs' case, we conclude that this is one of those instances where the federal issue is collateral

to the essence of plaintiffs' state-law claims.

As with other courts that have found collateral issues of federal law to be insufficient to

confer federal jurisdiction over a suit otherwise exclusively based in state law, our holding reflects

the concern that whole classes of state law actions should not be "federalized" by the mere presence

of a federal issue. This concern has been most clearly expressed in cases involving actions to

establish title to land in which the plaintiff must trace the source of the title to federal laws or

treaties. See Shulthis v. McDougal, 225 U.S. 561, 32 S.Ct. 704, 56 L.Ed. 1205 (1912); Shoshone

Mining Co. v. Rutter, 177 U.S. 505, 20 S.Ct. 726, 44 L.Ed. 864 (1900); Mobil Oil Corp. v. Coastal

Petroleum Co., 671 F.2d 419 (11th Cir.1982); Mays v. Kirk, 414 F.2d 131 (5th Cir.1969); Huckins

v. Duval County, Fla., 286 F.2d 46 (5th Cir.1960).11 Here, § 1-2-10 premises the ability of any

noncitizen—including citizens of other states, as well as citizens of foreign nations—to sue in the

Georgia state courts on reciprocity of access to the courts of the noncitizen's state. One source of

such reciprocity between the states is the Privileges and Immunities Clause of the Constitution,

which requires each state to provide access to its courts "to the citizens of all other states to the

11
The decisions of the former Fifth Circuit are binding upon this court. Bonner v. City of
Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc).

12
precise extent that it is allowed to its own citizens." Chambers v. Baltimore & Ohio RR Co., 207

U.S. 142, 148, 28 S.Ct. 34, 35, 52 L.Ed. 143 (1907). Under defendants' argument, therefore, every

suit by an out-of-state plaintiff could conceivably present a federal question because the plaintiff

would have to rely on the Privileges and Immunities Clause to satisfy the requirement of § 1-2-10.

We doubt that Georgia meant to "federalize" all actions brought by noncitizens, and we are confident

that in these circumstances federal question jurisdiction is lacking.12

C. Federal Common Law of Foreign Relations

As their third alternative theory of federal jurisdiction, defendants assert that the plaintiffs'

claims implicate the federal common law of foreign relations. The Supreme Court has held that the

area of international relations is governed exclusively by federal law. See Banco Nacional de Cuba

v. Sabbatino, 376 U.S. 398, 423-24, 84 S.Ct. 923, 937-38, 11 L.Ed.2d 804 (1964) (holding that

application of "act of state doctrine," which precludes courts of this country from questioning the

validity of acts of a foreign government committed within its own territory, is governed by federal

law); see also Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641, 101 S.Ct. 2061,

2067, 68 L.Ed.2d 500 (1981) (noting that the narrow realm of federal common law includes

"international disputes implicating ... our relations with foreign nations"). Where a state law action

12
We find further support for our conclusion in the Second Circuit's decision in Travelers
Indemnity Co. v. Sarkisian, 794 F.2d 754, 762 (2d Cir.1986). In Sarkisian, the Second Circuit
rejected the argument that a New York law providing that out-of-state judgments were
enforceable only to the extent of the Full Faith & Credit Clause created a substantial question of
federal law. The court first noted the reluctance of the courts in the land title cases to federalize
whole classes of state-law actions. "Because it would be equally anomalous to federalize every
action seeking to enforce an out-of-state judgment, Travelers' state court complaint is not
removable simply because the plaintiff expects compliance with the Full Faith and Credit
Clause.... To whatever extent New York has thereby made observance of the Full Faith and
Credit Clause an element of plaintiff's cause of action, this "federal' element is too insubstantial
to support federal question jurisdiction." Id.

13
has as a substantial element an issue involving foreign relations or foreign policy matters, federal

jurisdiction is present. Republic of Philippines v. Marcos, 806 F.2d 344, 353 (2d Cir.1986) (holding

that "there is federal question jurisdiction over actions having important foreign policy

implications"). The cases addressing this area of federal common law generally involve disputes

in which a foreign government, or its instrumentality, is a named party to the lawsuit, or where the

actions of a foreign government are a direct focus of the litigation. See Sabbatino, 376 U.S. at 404-

406, 84 S.Ct. at 928-29 (involving a contract dispute between the defendants and the Cuban National

Bank regarding Cuba's expropriation of sugar owned by the defendants); Republic of Philippines,

806 F.2d at 353 (allegations in the complaint "concern efforts by a foreign government to reach or

obtain property located" in the United States); Republic of Iraq v. First Nat'l City Bank, 353 F.2d

47 (2d Cir.1965) (holding that attempt by Republic of Iraq to recover assets held in the United States

was governed by federal law).

The Fifth Circuit has extended the area of federal jurisdiction based on the federal common

law of foreign relations to disputes between private parties that implicate the "vital economic and

sovereign interests" of the nation where the parties' dispute arose. Torres, 113 F.3d at 543 n. 8.13

In Torres, over 700 Peruvian plaintiffs sued the defendant mining company ("SPCC") in Texas state

court alleging that they had been harmed by the SPCC's copper smelting operations conducted in

Peru. After SPCC removed to federal court, the district court upheld the existence of federal

13
See also Marathon Oil Co. v. Ruhrgas, 115 F.3d 315 (5th Cir.1997), petition for reh'g en
banc granted, 129 F.3d 746 (Nov. 17, 1997). In Marathon Oil, the same panel that authored the
Torres opinion reiterated its holding that where a plaintiff's claims implicate the vital interests of
a foreign nation, federal jurisdiction is present. In Marathon Oil, however, the court found that
the interests of Germany in the international commercial dispute were not so substantial as to
confer federal jurisdiction over the action. Given the pendency of Marathon Oil before the Fifth
Circuit en banc, the status of this decision is unclear.

14
jurisdiction and dismissed the case on the basis of forum non conveniens. Pending appeal, the

government of Peru filed a protest letter with the State Department and submitted an amicus brief

to the Fifth Circuit. Noting that the mining industry in Peru "is critical to that country's economy,"

and that the Peruvian government had actually participated in some of the activities for which the

defendant was being sued, the court concluded that "[t]his action therefore strikes not only at vital

economic interests but also at Peru's sovereign interests by seeking damages for activities and

policies in which the government actively has been engaged." Id. at 543.

Citing Torres, defendants argue that the plaintiffs' action implicates the economic and

sovereign interests of Venezuela to such a significant extent that federal jurisdiction based upon the

federal common law of foreign relations exists in this case. Defendants note that the factors

considered by the Fifth Circuit in this jurisdictional inquiry include whether the injuries occurred

on foreign soil, whether the foreign government's policy decisions or actions are brought into

question by the suit, whether the foreign government was involved in the alleged wrongdoing, and

whether the action strikes at the heart of the economic and sovereign interests of the foreign nation.

See id. at 543. Defendants assert that the record shows that the plaintiffs' injuries occurred only in

Venezuela; that the gas pipeline that exploded was owned and operated by a government-owned

Venezuelan corporation; that the cable-laying project was initiated by the national telephone

company, 49% of which is owned by the Venezuelan government, and that a ministry of the

government was responsible for the issuing of permits for the fiber-optic cable project; that the

plaintiffs' action calls into question the laying of the gas pipeline, an act done by the

government-owned corporation; that the Venezuelan National Congress has conducted hearings into

the accident; and that the fiber-optic cable project is "vital" to the Venezuelan economy. All of

15
these factors, the defendants argue, support a finding that the substantial interests of Venezuela are

implicated by this litigation and that, therefore, federal jurisdiction is proper.

We conclude that the federal common law of foreign relations will not support federal

jurisdiction in this case. First, although the court in Torres stated "[t]hat Peru has injected itself into

this lawsuit does not, standing alone, create a question of federal law," 113 F.3d at 542-43, we think

it significant, for purposes of this case, that the Venezuelan government has taken no position on

whether this lawsuit proceeds in the United States or in Venezuela. Without such an indication from

the sovereign nation, we are reluctant to find that the plaintiffs' private cause of action sounding in

Georgia tort law implicates important foreign policy on the face of the plaintiffs' pleadings. It seems

more likely to us that any issues involving the participation of the Venezuelan government, or its

corporate entities, will arise in the form of a defense by AT&T. Federal question jurisdiction,

however, cannot be based upon a federal defense. See Aquafaith Shipping, Ltd. v. Jarillas, 963 F.2d

806, 808 (5th Cir.1992) (holding that where the issue of federal relations is raised by the defendant's

pleadings, and is not apparent on the face of the plaintiff's complaint, there is no federal question

jurisdiction).

Second, we find that the evidence regarding Venezuela's interests in the plaintiffs' action is

too speculative and tenuous to confer federal jurisdiction over this case. In emphasizing that the

plaintiffs' action implicated the vital economic and political interests of Peru, the court in Torres

found that:

[t]he mining industry in Peru, of which SPCC is the largest company, is critical to that
country's economy, contributing up to 50% of its export income and 11% of its gross
domestic product. Furthermore, the Peruvian government has participated substantially in
the activities for which SPCC is being sued. By way of example, the government: (1) owns
the land on which SPCC operates; (2) owns the minerals which SPCC extracts; (3) owned
the Ilo refinery from 1975 until 1994, during which time pollution from the refinery may

16
 have contributed to the injuries complained of by plaintiffs; and (4) grants concessions that
allow SPCC to operate in return for an annual fee. Moreover, the government extensively
regulates the mining industry.

113 F.3d at 543. In this case, by contrast, while the record shows that Venezuelan governmental

entities or corporations partially owned by the government participated in activities that may have

had an effect on the events giving rise to the explosion, the evidence of Venezuela's direct

participation in any tortious actions is weaker than the evidence of the Peruvian government's

involvement in Torres, and there is no evidence regarding the relative importance of the fiberoptic

cable project, or the telecommunications industry in general, to the Venezuelan national economy.

Although this litigation might significantly affect AT&T's business operations in Venezuela, it is not

clear that the lawsuit threatens the economic vitality of Venezuela itself. While we do not doubt that

gas pipeline explosion was a significant event in Venezuela, we conclude that the defendants have

failed to show that the plaintiffs' complaints are so intertwined with the sovereign interests of

Venezuela as to place this case within the purview of the federal courts.

D. All Writs Act

Defendants argue that the All Writs Act, 28 U.S.C. § 1651, furnishes an alternative basis for

federal jurisdiction over this case. The All Writs Act provides that "[t]he Supreme Court and all

courts established by Act of Congress may issue all writs necessary or appropriate in aid of their

respective jurisdictions." 28 U.S.C. § 1651(a). The Supreme Court "has repeatedly recognized the

power of a federal court to issue such commands under the All Writs Act as may be necessary or

appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise

of jurisdiction otherwise obtained." United States v. New York Tel. Co., 434 U.S. 159, 172, 98 S.Ct.

364, 372, 54 L.Ed.2d 376 (1977). Defendants acknowledge that the All Writs Act does not provide

17
an independent basis for federal jurisdiction. See Westinghouse Elec. Corp. v. Newman &

Holtzinger, P.C., 992 F.2d 932, 937 (9th Cir.1993). Defendants argue, however, that the district

court had the authority under the Act to accept jurisdiction over the plaintiffs' suits to protect orders

issued by the court in a related action. Specifically, three of the fifty-six plaintiffs in this

action—Carmen Mercedes Armas, Francisco Alvarez and Omika Evangelino Santos

Melendez—were the named plaintiffs in Armas et al. v. AT & T, No. 95-cv-1430-FMH (N.D.Ga.),

a case pending before the same district court judge at the time the De Perez suits were removed.14

The district court entered several orders in the Armas case granting more limited discovery than

requested by the Armas plaintiffs. Defendants contend that the plaintiffs in the present action—a

group which includes the three Armas plaintiffs-filed their suit in Georgia state court in order to

avoid these discovery orders, and that the district court could have exercised its discretionary

authority under the All Writs Act to assume supplemental jurisdiction over the claims and parties

in the De Perez litigation. Defendants do not explain, however, how the plaintiffs' filing suit in state

court would interfere with the discovery orders made in the Armas action.

14
The Armas action was originally filed by the "Relsolelo" plaintiffs, see supra note 3, in the
United States District Court for the Eastern District of California. On March 28, 1994, most of
the plaintiffs in that action filed a notice of voluntary dismissal, leaving only Armas, Alvarez and
Melendez. The Armas action proceeded in the California district court and was subsequently
transferred to the United States District Court for the Northern District of Georgia. The district
court entered several discovery and other procedural orders in the Armas action, and eventually
dismissed the case forum non conveniens grounds. While the Armas action was pending, the
plaintiffs in this case, including those who had voluntarily dismissed their claims in the Armas
action in California district court, filed their two separate actions in Georgia state court. The
three plaintiffs in the Armas action also joined the suits in Georgia state court, which were
eventually removed to the same federal district court as the Armas case. Although Armas,
Alvarez and Santos were plaintiffs in both actions pending before the same district court judge,
the judge specifically declined to consolidate the De Perez actions with the Armas suit.

18
 Some courts of appeals have held, in the context of complex class actions in which a final

settlement agreement has been reached, and a subsequent or concurrent state court action threatens

the viability of this final agreement, that a district court may exercise its authority under the All

Writs Act to remove an otherwise unremovable case from state court and to enjoin further

proceedings in that case in order to prevent frustration of the settlement agreement. See In re VMS

Securities Litigation, 103 F.3d 1317, 1323-24 (7th Cir.1996) (upholding the district court's

assumption of jurisdiction over a state action under the All Writs Act in order to protect the court's

ongoing orders and prior rulings in complex class action litigation over which the court "expressly

retained jurisdiction"); In re Agent Orange Product Liability Litigation, 996 F.2d 1425, 1431 (2d

Cir.1993) (same). But see Hillman v. Webley, 115 F.3d 1461, 1469 (10th Cir.1997) (rejecting the

approach taken in VMS Securities and Agent Orange and holding that the All Writs Act does not

provide an independent basis for a district court to acquire jurisdiction over a separate case pending

in state court).

We need not decide today whether the approach of the Second and Seventh Circuits in Agent

Orange and VMS Securities or that of the Tenth Circuit in Hillman is the correct one, because we

conclude that even under the Second and Seventh Circuits' approach, the defendants have not shown

the existence of the sort of "exceptional circumstances" that might justify removal of the plaintiffs'

lawsuits to federal court where federal jurisdiction is otherwise wholly lacking. See VMS Securities,

103 F.3d at 1324; In re Agent Orange, 996 F.2d at 1431. As the Second Circuit emphasized in

Agent Orange, the exercise of authority under the All Writs Act is not appropriate where a district

court is "determining simply the preclusive effect of a prior final judgment on claims or issues

expected to be raised in subsequent collateral proceedings." Id. Rather, a district court's assumption

19
of removal jurisdiction under the Act is proper, if at all, only "to enforce [the court's] ongoing orders

against relitigation and to guard the integrity of its prior rulings over which it has expressly retained

jurisdiction." VMS Securities, 103 F.3d at 1324. We do not see how, at the time of removal, the

plaintiffs' prosecution of their action in state court would have interfered with the discovery orders

made in the Armas action, nor do we see how allowing the plaintiffs to go forward now would

thwart the judgment of dismissal for forum non conveniens in Armas. Any questions about the

preclusive effect of judgments made in Armas or in other actions on the claims of certain plaintiffs

in this case can be resolved by the state court. The fact that a few of the fifty-six plaintiffs in this

action may be barred from relitigating their claims, however, does not justify the exercise of

supplemental jurisdiction over the entire case under the All Writs Act. We hold that the district court

did not have authority under these circumstances to assume jurisdiction under the Act.

III. Fraudulent Joinder

Defendants also argue that the plaintiffs fraudulently joined the Georgia defendants to defeat

the original diversity jurisdiction that otherwise exists in this case. "In a removal case alleging

fraudulent joinder, the removing party has the burden of proving that either: (1) there is no

possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the

plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court."

Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir.1997) (citing Cabalceta v. Standard Fruit Co.,

883 F.2d 1553, 1561 (11th Cir.1989)). The burden of establishing fraudulent joinder is a heavy one.

Where a plaintiff states even a colorable claim against the resident defendant, joinder is proper and

the case should be remanded to state court. See id.; Cabalceta, 883 F.2d at 1562. The

determination of whether a resident defendant has been fraudulently joined must be based upon the

20
plaintiff's pleadings at the time of removal, supplemented by any affidavits and deposition

transcripts submitted by the parties. Id. In making its determination, the district court must evaluate

factual allegations in the light most favorable to the plaintiff and resolve any uncertainties about the

applicable law in the plaintiff's favor. Id.

Although the district court did not address the issue of fraudulent joinder in its order, the

parties were afforded the opportunity to present arguments and supporting documents regarding the

fraudulent joinder issue. Defendants argued that under Venezuelan law—which they contend

governs the plaintiffs' suit—plaintiffs could not possibly establish a cause of action against any of

the resident defendants. In support of this argument, defendants submitted to the district court the

affidavit of an attorney who practices in Venezuela, who opined that under the so-called Venezuelan

doctrine of "adequate cause," the individual AT&T employees could not be held liable for the

explosion. Affidavit of Daniel Diquez, R. 3-30, Ex. C. In his affidavit, attorney Diquez stated that

under Venezuelan law a plaintiff must establish a causal link between the defendant's acts and

omissions and the plaintiffs' damages. Diquez predicted that the Venezuelan courts will not find the

individual defendants liable because the explosion could not have been the foreseeable result of the

individual defendants' acts and because there were too many intervening acts taken by others to

establish the necessary causal link between the acts of the individual defendants and the plaintiffs'

damages. Plaintiffs responded that they have adequately alleged claims against the Georgia resident

defendants under the law of either Georgia or Venezuela. Specifically, plaintiffs alleged that they

joined the resident defendants because those defendants were the AT&T employees directly

responsible for planning and surveying the proposed site for laying the fiber-optic cable, and

because they performed their duties negligently.

21
 The fact that the plaintiffs may not ultimately prevail against the individual defendants

because of an insufficient causal link between the defendants' actions and the plaintiffs' injuries does

not mean that the plaintiffs have not stated a cause of action for purposes of the fraudulent joinder

analysis. In a fraudulent joinder inquiry, "federal courts are not to weigh the merits of a plaintiff's

claim beyond determining whether it is an arguable one under state law." Crowe, 113 F.3d at 1538.

Nothing in the Diquez affidavit, or in the record, suggests that Venezuelan law does not provide a

cause of action for the sort of negligence claims asserted against the individual defendants. Cf. id.

at 1539 (holding remand appropriate where it is "arguable" as to whether Georgia law creates a

cause of action against landowner for failure to abate a continuing nuisance created by his property).

We conclude that the defendants failed to show that the plaintiffs cannot state an arguable cause of

action against the resident defendants. Thus, we cannot say that the Georgia defendants were

fraudulently joined.15

Conclusion

15
Finally, defendants argue that plaintiffs waived their right to object to removal by engaging
in affirmative conduct in the district court. Plaintiffs timely objected to removal and have
consistently argued that their action should be remanded to state court. While the plaintiffs'
motion to remand and the defendants' motion to dismiss for forum non conveniens was pending
before the district court, however, the plaintiffs filed a joint status report in which they stated
that they understood a previous court order not to bar discovery on the merits of their claims.
The plaintiffs stated that they were concerned that the local time limits for discovery would not
be tolled during the time the district court was considering the motions to remand and to dismiss.
The district court issued an order clarifying its previous order in which it stated that all
merits-based discovery would be stayed until the court disposed of the pending motions.
Defendants now argue that the plaintiffs' stance in these matters constituted a waiver of their
right to object to removal. This argument is not persuasive. The plaintiffs have consistently and
insistently maintained that this case should be remanded to state court. We conclude that the
plaintiffs' attempt to preserve the timeliness of any possible future discovery cannot be equated
with a waiver of their right to object to removal.

22
 For the foregoing reasons, we conclude that the district court lacked federal question

jurisdiction and that the plaintiffs' actions were improperly removed to federal court. Therefore, we

REVERSE and REMAND this case with directions that the district court remand this action to the

State Court of Fulton County, Georgia.

BLACK, Circuit Judge, concurring in part and dissenting in part:

I fully agree with the majority that federal question jurisdiction cannot be predicated on

either theory addressed by the district court—res judicata or the federal treaty with Venezuela.

Although the majority opinion is thorough and well reasoned, I would remand the case for the

district court to determine whether federal question jurisdiction exists based on either the All Writs

Act or the federal common law of international relations and whether removal is proper because of

fraudulent joinder. See Citro Florida, Inc. v. Citrovale, S.A., 760 F.2d 1231, 1232 (11th Cir.1985).

These three theories require an examination of the factual record, a function uniquely within the

province of the district court. Lee v. Celotex Corp., 764 F.2d 1489, 1492-93 (11th Cir.1985).

23