Tapscott v. MS Dealer Service Corp.

United States Court of Appeals,

Eleventh Circuit.

No. 95-6055.

Gregory TAPSCOTT, Jessie James Davis, Sharon West, Leroy Brown,
Carrie L. Bowen, Ira P. Lewis, Bobby G. Shore, Minnie B. Shore,
Sheila D. Ware, James R. Bickley, Inez T. Davis, Olivia Thompson,
Emma Galloway, Marie A. Anderson, Lola D. Greer, Russell Thornton,
Stephen H. Schoepflin, Robbie L. Langley, Tollie L. Isome, Larry
Clark, Vanessa Mahone, Bobbie S. Kimbrell, Andrew Moreland, Jr.,
Robin A. Watkins, Angela McWaine, David W. Reyer, Plaintiffs-
Appellants,

North American Specialty Insurance Co., Intervenor,

v.

MS DEALER SERVICE CORP., Defendant,

Lowe's Home Centers, Inc., Defendant-Appellee,

Jim Burke Automotive, Inc., Mississippi Life Insurance Co., MS
Casualty Insurance Co., Serra Automotive, Inc., d/b/a Serra Budget
Center, Roadguard Motor Club Inc., etc., et al., Defendants,

Ford Life Insurance Company, Ford Motor Company, Movants.

March 20, 1996.

Appeal from the United States District Court for the Northern
District of Alabama. (No. CV 94-02027-PT-S), Robert B. Propst,
Judge.

Before TJOFLAT, Chief Judge, BLACK, Circuit Judge, and GOODWIN*,
Senior Circuit Judge.

BLACK, Circuit Judge:

Appellants challenge the exercise of diversity jurisdiction by

the federal district court over a state law action. Appellee

Lowe's Home Centers (Lowe's) removed the putative class action, and

the district court denied Appellants' motion to remand with respect

to Lowe's. The district court held the amount-in-controversy

*
Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for
the Ninth Circuit, sitting by designation.
requirement was satisfied by aggregating punitive damages and

diversity of citizenship was not defeated by a fraudulent joinder.

We affirm and hold where a plaintiff makes an unspecified claim for

damages, the defendant must prove the amount in controversy by a

preponderance of the evidence.

I. BACKGROUND

Appellant Gregory Tapscott, an Alabama resident, originally

filed this state law class action against four defendants, one of

which is an Alabama resident. On behalf of a putative class,

Tapscott alleged violations of the Alabama Code, Ala.Code §§ 5-19-

1, 5-19-19, & 5-19-20 (1975 & Supp.1995), common law and statutory

fraud, Ala.Code § 6-5-100, et seq (1975), and civil conspiracy

arising from the sale of "service contracts" on automobiles sold

and financed in Alabama. Appellants' first amended complaint,

alleging identical claims as the original complaint, added sixteen

named plaintiffs and twenty-two named defendants.

A second amended complaint contained four additional named

plaintiffs, including Appellants Jessie Davis and Sharon West,

Alabama residents, and three additional named defendants, including

Appellee Lowe's, a North Carolina resident.1 Unlike the initial

and first amended complaints, which alleged violations arising from

1
The two other defendants, Alabama Power Company and Circuit
City Stores, Inc., have been dismissed by Appellants. Lowe's is
the sole remaining defendant added by the second amended
complaint. Appellants Davis and West are the only plaintiffs who
assert claims against Lowe's.

Appellants' joinder of these co-defendants was
accomplished exclusively through Rule 20. Fed.R.Civ.P. 20.
Rule 20 of the Federal Rules of Civil Procedure is identical
to Rule 20 of the Alabama Rules of Civil Procedure.
sales of service contracts in connection with the sale of

automobiles, the second amended complaint alleged violations of the

Alabama Code §§ 5-19-1, 5-19-19, and 5-19-20, arising from the sale

of "extended service contracts" in connection with the sale of

retail products. Davis and West are the putative plaintiff class

representatives,2 and Lowe's is the putative defendant class

representative for a "merchant" class. Appellants seek statutory

damages, unspecified compensatory and punitive damages, and

injunctive relief.

On August 18, 1994, Lowe's filed a notice of removal to the

United States District Court for the Northern District of Alabama,

asserting diversity jurisdiction under 28 U.S.C. § 1332. 3 Lowe's

also filed a motion to sever the claims against Lowe's from the

claims against the other defendants. On August 26, 1994,

Appellants filed a motion to remand for lack of federal subject

matter jurisdiction. In support of their motion to remand, Davis

and West filed affidavits on October 11, 1994, purporting to limit

their individual damages and those of any other class members to an

amount not more than $49,000. Their attorney also filed an

affidavit stating that no class member would seek more than $49,000

and that he would not attempt to obtain more than $49,000 by

amendment or otherwise.

2
Appellants aver that the total class membership is at least
10,000.
3
A district court has original jurisdiction over all cases
where the matter is between citizens of different States and "the
matter in controversy exceeds the sum or value of $50,000,
exclusive of interest and costs." 28 U.S.C. § 1332(a) & (a)(1)
(1994).
 The district court granted Lowe's Motion to Sever and denied

Appellants' Motion to Remand as to Lowe's. The action was remanded

to state court as to all defendants except Lowe's. Appellants

appeal the district court's order, and we have jurisdiction under

28 U.S.C. § 1292(b).4

II. STANDARD OF REVIEW

The subject matter jurisdiction of the district court is a

question of law subject to de novo review. Mutual Assur., Inc. v.

United States, 56 F.3d 1353, 1355 (11th Cir.1995) (citing United

States v. Perez, 956 F.2d 1098 (11th Cir.1992).

III. DISCUSSION

A. Burden of Proof

Any civil case filed in state court may be removed by the

defendant to federal court if the case could have been brought
5
originally in federal court. 28 U.S.C. § 1441(a). A removing

defendant has the burden of proving the existence of federal

4
On December 5, 1994, the district court amended its order
of November 1, 1994, indicating that it "is of the opinion that
this order involves a controlling question of law as to which
there is a substantial ground for difference of opinion and that
an immediate appeal from the order may materially advance the
ultimate termination of the litigation." Tapscott v. MS Dealer
Service Corp., et al., No. CV 94-PT-2027-S (N.D.Ala. Dec. 5,
1994) (amended order). This Court granted Appellants' petition
to appeal pursuant to 28 U.S.C. § 1292(b).
5
Section 1441(a) states:

Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of
which the district courts of the United States have
original jurisdiction, may be removed by the defendant
or the defendants, to the district court of the United
States for the district and division embracing the
place where such action is pending.

28 U.S.C. § 1441(a) (1994).
jurisdiction. We first decide what burden of proof the defendant

must bear in demonstrating the amount-in-controversy requirement of

diversity jurisdiction where the plaintiff has made an unspecified

demand for damages.

This Court recently examined the burden of proving the amount

in controversy for diversity jurisdiction:

In the typical diversity case, plaintiff files suit in federal
court against a diverse party for damages exceeding $50,000.
Such a case will not be dismissed unless it appears to a
"legal certainty" that plaintiff's claim is actually for less
than the jurisdictional amount. St. Paul's Indemnity Corp. v.
Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82
L.Ed. 845 (1938). In the typical removal case, a plaintiff
files suit in state court seeking over $50,000. The defendant
can remove to federal court if he can show, by a preponderance
of the evidence, facts supporting jurisdiction. See McNutt v.
General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct.
780, 785, 80 L.Ed. 1135 (1936).

Burns v. Windsor Insurance Co., 31 F.3d 1092, 1094 (11th Cir.1994).

In Burns, we held where a plaintiff has specifically claimed less

than the jurisdictional amount in state court, a defendant, to

establish removal jurisdiction, must prove to a "legal certainty"

that the plaintiff would not recover less than $50,000 if she

prevailed. 6 Id. at 1095. The rationale is that although a

defendant has a right to remove in certain cases, a plaintiff is

still master of her own claim. Id. Noting an attorney's twin

duties to investigate his client's case and be candid with the

court, we reasoned that a pleading containing a specific demand of

damages and signed by a lawyer was due deference and a presumption

of truth. Id. We concluded the defendant's burden was a "heavy

one" and the legal certainty standard was therefore appropriate.

6
The Burns plaintiff specifically claimed "not more than
$45,000.00" in damages. Burns, 31 F.3d at 1093.
Id. Any lesser burden would impermissibly expand federal diversity

jurisdiction. Id. at 1096-97.

In contrast to Burns, the present case concerns an

unspecified claim for damages. See Burns, 31 F.3d at 1096 n. 6

(noting that Burns was not a case where the amount of damages

sought by plaintiff was unspecified).7 Where a plaintiff has made

an unspecified demand for damages, a lower burden of proof is

warranted because there is simply no estimate of damages to which

a court may defer. See also Gafford v. General Elec. Co., 997 F.2d

150, 160 (6th Cir.1993).8 Nevertheless, a defendant's ability to

remove a state case to federal court is not unfettered. The proper

balance between a plaintiff's right to choose his forum and a

defendant's right to remove, without unnecessarily expanding

federal diversity jurisdiction, is struck by a "preponderance of

the evidence" standard. As the Gafford Court stated:

It does not place upon the defendant the daunting burden of
proving, to a legal certainty, that the plaintiff's damages
are not less than the amount-in-controversy requirement. Such
a burden might well require the defendant to research, state
and prove the plaintiff's claim for damages. On the other end
of the spectrum, requiring the defendant to prove that the
amount in controversy "may" meet the federal requirement would

7
Other courts in addressing claims for unspecified damages
have applied varying burdens of proofs. See 14A Charles A.
Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 3725 (Supp.1995) (citing cases applying "legal
certainty," "preponderance," and "reasonable probability"
standards).
8
The "legal certainty" test is derived from the situation
where a plaintiff's state court prayer specifies damages in
excess of the amount-in-controversy requirement. Gafford, 997
F.2d at 160. Such a prayer is contrary to a plaintiff's
forum-selection interests, and it is therefore proper to presume
the plaintiff's presentation is an appropriate estimate. Where
damages are unspecified, such a presumption is inappropriate.
Id.
 effectively force the plaintiff seeking remand to prove in
rebuttal that only a relatively small amount of damages is
legally possible.

Gafford, 997 F.2d at 159 (footnote omitted). Thus, we hold where

a plaintiff has made an unspecified demand for damages in state

court, a removing defendant must prove by a preponderance of the

evidence that the amount in controversy more likely than not

exceeds the $50,000 jurisdictional requirement.

B. Amount in Controversy

We now turn to whether Appellee has established an amount in

controversy exceeding $50,000 by a preponderance of the evidence.9

Appellants have made a claim for punitive damages on behalf of a

putative plaintiff class. If the punitive damages in this putative

class action may be considered in the aggregate, then the amount in

controversy will exceed the $50,000 requirement.10

9
Under Zahn v. International Paper Co., 414 U.S. 291, 94
S.Ct. 505, 38 L.Ed.2d 511 (1973), each putative class member must
satisfy the jurisdictional requirements. Id. at 300, 94 S.Ct. at
511; Lindsey v. Alabama Tel. Co., 576 F.2d 593, 594 (5th
Cir.1978). Some dispute exists as to whether Zahn has been
overruled by the recent passage of 28 U.S.C. § 1367(b) which
would provide supplemental jurisdiction over class members'
claims so long as one class representative meets the
jurisdictional requirements. See generally Fountain v. Black,
876 F.Supp. 1294, 1297-98 (S.D.Ga.1994); 14A Wright, Miller &
Cooper, supra § 3705 (Supp.1995); 1 James W. Moore, Moore's
Federal Practice ¶ 0.97[5], at 927-28 (1995) (hereinafter Moore's
Federal Practice ). We need not address this issue because we
hold that the class claim for punitive damages may be considered
in the aggregate when determining the amount in controversy.
10
Although the amount of statutory and compensatory damages
in controversy has not been precisely determined, it is clear
that such damages would not approach the $50,000 requirement.
The individual transactions between putative class
representatives Davis and West and Appellee are under $1,000, and
the damages available pursuant to Ala.Code §§ 5-19-19 and 5-19-20
would not exceed $50,000. Satisfaction of the
amount-in-controversy requirement in this case, therefore,
depends upon whether a claim for punitive damages by a class may
 In Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d

319 (1969), the Supreme Court held that aggregation is permissible

to meet the amount-in-controversy requirement where "two or more

plaintiffs unite to enforce a single title or right in which they

have a common and undivided interest." 394 U.S. at 335, 89 S.Ct.

at 1056. The corollary is that "separate and distinct" claims may

not be aggregated to satisfy the jurisdictional requirement. Id.

at 336, 89 S.Ct. at 1057. Despite the Court's belief that the

"lower courts have developed largely workable standards for

determining when claims are joint and common, and therefore

entitled to be aggregated, and when they are separate and distinct

and therefore not aggregable," Id. at 341, 89 S.Ct. at 1059,

distinguishing a "common and undivided" interest from claims that

are "separate and distinct" remains a difficult task in many cases.

See generally 14A Wright, Miller, & Cooper, supra § 3704; 1

Moore's Federal Practice ¶ 0.97[5], at 931 ("Of course, terms such

as "joint,' "common,' and "separate and distinct' are elusive and

elastic.").

This Circuit has not yet addressed whether punitive damages

in a class action may be aggregated. Appellants contend that the

punitive damages may not be aggregated because this case involves

separate, individual contract claims between the parties and not a
11
single wrong by Appellee, such as a mass tort. We disagree.

be considered in the aggregate. At oral argument, attorney for
Appellants conceded that if considered in the aggregate, punitive
damages would exceed $50,000.
11
Whether punitive damages are aggregable cannot be
determined on the distinction of whether they arise from multiple
individual transactions or from a single act or mass tort. For
Instead, we believe the inquiry must focus on an examination of the

nature of punitive damages under Alabama law.

The Fifth Circuit recently addressed a similar issue under

Mississippi law, which is substantially like Alabama's law on

punitive damages. In Allen v. R & H Oil & Gas Co., 63 F.3d 1326

(5th Cir.1995), the court looked at several factors and concluded

that each plaintiff12 had "an undivided claim for the full amount

of the alleged punitive damages," id. at 1329, and therefore "the

amount of such an alleged award [must be] counted against each

plaintiff's required jurisdictional amount," id. at 1335.

Reviewing the nature of punitive damages under Mississippi law, the

Allen Court determined punitive damages are "fundamentally

example, in Asociacion Nacional de Pescadores a Pequena Escala o
Artesanales de Colombia (ANPAC) v. Dow Quimica de Colombia, S.A.,
988 F.2d 559, 563 (5th Cir.1993), cert. denied, --- U.S. ----,
114 S.Ct. 685, 126 L.Ed.2d 653 (1994), approximately 700
Colombian fishermen filed suit seeking damages from an alleged
chemical spill by the defendant. Although the actions arose from
a mass tort, the court held that the individual claims could not
be aggregated since each claim will vary based upon the
particular plaintiff's injuries. Id. at 563. Even though the
plaintiffs' injuries were caused by a single act of the
defendant, the nature of the right and remedy sought was still
particular to each individual plaintiff. ANPAC demonstrates that
the proper focus is on the nature of the claim or right asserted
and not on the nature of the wrong underlying the suit.
12
Allen is a mass tort case arising from an explosion of an
oil and gas well. Plaintiffs sought unspecified compensatory and
punitive damages.

In Allen 512 plaintiffs jointly filed suit, thus it was
not a class action. Although not a class action, we do not
believe this distinguishes Allen from the case sub judice.
"It is important to remember ... that claims occasionally
can be aggregated in the class action context. Snyder and
Zahn simply mean that the aggregation rules formulated for
cases involving multiple plaintiffs or defendants apply to
class actions." 1 Moore's Federal Practice ¶ 0.97[5], at
928-29. It is not the nature of the suit, but the nature of
the claim that is important.
collective," their purpose being to protect society by punishing

and deterring wrongful conduct. Id. at 1333. Since punitive

damages are not compensatory, "they are individual awards in

function only." Id. A further indication of their collective

nature is that no plaintiff has a claim of right to punitive

damages; rather, the damages are within the discretion of the

court or jury. Id. Because of the nature of punitive damages as

a public good, punitive damages as a whole are treated as belonging

to each plaintiff for jurisdictional purposes. Id. at 1333-34.

As is the case under Mississippi law, the purpose of punitive

damages in Alabama is to deter wrongful conduct and punish those

responsible. Reserve Nat'l Ins. Co. v. Crowell, 614 So.2d 1005,

1009 (Ala.), cert. denied, --- U.S. ----, 114 S.Ct. 84, 126 L.Ed.2d

52 (1993). An injured party is not entitled to punitive damages as

a matter of right. City Bank of Alabama v. Eskridge, 521 So.2d

931, 933 (Ala.1988). Rather, the state and not the victim is

considered the true party plaintiff because punitive damages do not

compensate a victim for loss but serve to punish and deter.

Maryland Casualty Co. v. Tiffin, 537 So.2d 469, 471 (Ala.1988).

Thus, similar to Mississippi punitive damages, Alabama punitive

damages are awarded for the public benefit—the collective good.

We also note that any punitive damage award in this case

would be made on the wrongfulness of the defendant's course of

conduct as a whole. The individual transactions in this case are

relatively small—under $1,000 each. Plaintiffs, however, have

alleged a class in excess of 10,000 members. In such an instance,

where the wrong to the individual is small but the course of
conduct is large, the potential punitive damages would be to punish

and deter the course of conduct as a whole. When punitive damages

reflect the defendant's course of conduct towards all of the

putative class members, it is entirely proper that the damages be

considered in the aggregate.13

The punitive damages sought in this case are a single

collective right in which the putative class has a common and

undivided interest; the failure of one plaintiff's claim will

increase the share of successful plaintiffs. Lowe's is not

concerned with the particular distribution of the punitive damages

among the plaintiffs, but with the overall size of any such award.14

The egregiousness of the defendant's conduct in this case, upon

which an award of punitive damages would rest, would stem from its

course of conduct as a whole. We therefore hold that punitive

damages in this class action suit may be considered in the

aggregate when determining the amount in controversy for

13
We note without embellishing that there may be cases where
the punitive damages, albeit within a class action, would be
determined on an individualized consideration of the
egregiousness of the harm done to individual class members. In
such a case, aggregation of punitive damages may very well be
inappropriate.
14
How the remedy is to be distributed has been considered
important in determining whether an interest is common and
undivided. Remedies for the benefit of the group rather than
vindication of individual rights are considered a common
interest. See generally 1 Moore's Federal Practice ¶ 0.97[5], at
931. Courts look to whether the defendant has an interest in how
the remedy is distributed among the plaintiffs, see, e.g., Allen,
63 F.3d at 1334, or whether the failure of one class member's
claim will increase the others' shares, see, e.g., ANPAC, 988
F.2d at 563. If a defendant is disinterested in how a potential
remedy is distributed among plaintiffs or whether the failure of
one plaintiff's claim increases the shares of others, the
plaintiffs are considered to have a common interest in the award.
jurisdictional purposes.15 Our holding in this case is not to be

taken to establish a bright line rule that any class claim for

punitive damages may be aggregated to meet the

amount-in-controversy requirement. While the facts in this case

result in an aggregation of punitive damages, other factual

situations may dictate that punitive damages are non-aggregable.

C. Diversity of Citizenship

Diversity jurisdiction under 28 U.S.C. § 1332 requires

complete diversity—every plaintiff must be diverse from every

defendant. Palmer v. Hospital Authority of Randolph County, 22

F.3d 1559, 1564 (11th Cir.1994) (citing Strawbridge v. Curtiss, 3

Cranch (7 U.S.) 267, 2 L.Ed. 435 (1806)). An action may

nevertheless be removable if the joinder of non-diverse parties is

fraudulent. See Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th

15
Appellants also contend their post-removal affidavits and
the affidavit of their attorney submitted in support of remand
conclusively limit the amount in controversy for each putative
class member to $49,000. We are not so sure. As the Supreme
Court has stated:

[E]vents occurring subsequent to removal which reduce
the amount recoverable, whether beyond the plaintiff's
control or the result of his volition, do not oust the
district court's jurisdiction once it has attached....

We think this well established rule is supported
by ample reason. If the plaintiff could, no matter how
bona fide his original claim in state court, reduce the
amount of his demand to defeat federal jurisdiction the
defendant's supposed statutory right of removal would
be subject to the plaintiff's caprice.

St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283,
293-94, 58 S.Ct. 586, 592-93, 82 L.Ed. 845 (1938). We
decline to decide today whether such artful pleading may be
utilized to defeat diversity jurisdiction because regardless
of whether each member's individual damages has been limited
to $49,000, the punitive damages may be considered in the
aggregate and the amount-in-controversy requirement is met.
Cir.1983). "Removability should be determined "according to the

plaintiff's pleading at the time of the petition for removal.' "

Id. (citations omitted); see also Cabalceta v. Standard Fruit

Co., 883 F.2d 1553, 1561 (11th Cir.1989).

In their initial and amended complaints, particular plaintiffs

have been matched with particular defendants against whom they

allege individual claims. Appellants Davis and West assert claims

against Lowe's. These are the only putative class representatives

for the purported "merchant" class action. It is not disputed that

Davis and West (Alabama residents) are diverse from Lowe's (a North

Carolina resident). Other defendants, however, are Alabama

residents.16

The joinder of defendants in this action has been accomplished

solely through Rule 20. The district court, finding no allegation

of joint liability between Lowe's and any other defendant and no

allegation of conspiracy, held there was an "improper and

fraudulent joinder, bordering on a sham." The court rejected

Appellants' argument that "a mere allegation of a common business

practice subjects all defendants to joinder." Tapscott v. MS

Dealer Service Corp., et al., No. CV 94-PT-2027-S, at 2 (N.D.Ala.

Nov. 1, 1994) (memorandum opinion). Disregarding the citizenship

of the improperly joined parties, the district court asserted

jurisdiction and severed and remanded the remainder of the action

to state court.

It is important to note that Appellants have not contended

16
The non-diverse defendants are parties to the putative
"automobile" class action.
that Lowe's was properly joined with any other non-diverse

defendants. Rather, they contend that while a court may disregard

the citizenship of fraudulently joined parties, a misjoinder, no

matter how egregious, is not fraudulent joinder. We disagree.

Joinder of defendants under Rule 20 requires: (1) a claim for

relief asserting joint, several, or alternative liability and

arising from the same transaction, occurrence, or series of

transactions or occurrences, and (2) a common question of law or

fact. Fed.R.Civ.P. 20(a). The district court correctly found no

allegation of joint liability or any allegation of conspiracy.

Further, the alleged transactions involved in the "automobile"

class are wholly distinct from the alleged transactions involved in

the "merchant" class. The only similarity between the allegations

in the "automobile" class and the "merchant" class are allegations

of violations of Alabama Code §§ 5-19-1, 5-19-19, and 5-19-20.

Such commonality on its face is insufficient for joinder.

Misjoinder may be just as fraudulent as the joinder of a

resident defendant against whom a plaintiff has no possibility of

a cause of action.17 A defendant's "right of removal cannot be

defeated by a fraudulent joinder of a resident defendant having no

real connection with the controversy." Wilson v. Republic Iron &

Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921).

Although certain putative class representatives may have colorable

17
This Circuit has previously recognized two situations
where joinder is fraudulent: (1) if there is no possibility the
plaintiff can prove a cause of action against the resident
defendant; or (2) if there has been outright fraud by the
plaintiff in pleading jurisdictional facts. Coker, 709 F.2d at
1440 (citations omitted).
claims against resident defendants in the putative "automobile"

class, these resident defendants have no real connection with the

controversy involving Appellants Davis and West and Appellee Lowe's

in the putative "merchant" class action. We hold that the district

court did not err in finding an attempt to defeat diversity

jurisdiction by fraudulent joinder. We do not hold that mere

misjoinder is fraudulent joinder, but we do agree with the district

court that Appellants' attempt to join these parties is so

egregious as to constitute fraudulent joinder.

IV. CONCLUSION

For the foregoing reasons, we hold: (1) where a plaintiff has

made an unspecified demand for damages, the defendant's burden of

proof as to amount in controversy is by a preponderance of the

evidence; (2) the amount-in-controversy requirement is met by an

aggregation of the class claim for punitive damages; and (3)

diversity of citizenship is satisfied by reason of fraudulent

joinder.

AFFIRMED.