“The Fifth Circuit has taken an important step in preventing the plaintiffs’ bar from frustrating the right of out-of-state defendants to have cases heard in federal court. The Constitution’s Framers viewed the right to remove cases to federal court as an important safeguard against the bias that state courts sometimes exhibit towards local plaintiffs.”
—Richard Samp, WLF Chief Counsel
WASHINGTON, DC—The U.S. Court of Appeals for the Fifth Circuit late yesterday issued an en banc decision that broadly supports the right of defendants to remove cases from state to federal court, and that prevents plaintiffs from blocking removal by improperly joining extraneous parties. The 11-4 decision in Flagg v. Stryker Corp. overturned a previous panel decision that had denied removal rights. The decision was a victory for WLF, which filed a brief urging the court to support broad removal rights.
Where diversity of citizenship exists in connection with a lawsuit filed in state court (that is, the plaintiff and defendant are citizens of different States), federal law generally permits the defendant to remove the case to federal district court. Because plaintiffs’ attorneys usually prefer to keep their suits in state court, they will sometimes seek to prevent removal by joining claims against an extra defendant who shares the plaintiff’s citizenship—thereby eliminating complete diversity of citizenship. The improper-joinder doctrine (a/k/a the fraudulent-joinder doctrine) prevents such maneuvers by decreeing that removal is still permitted when the claims against the nondiverse defendant are patently invalid.
In a product liability case arising under Louisiana law, the Louisiana plaintiff sued both a medical device manufacturer and the Louisiana doctor who had implanted the device. The Fifth Circuit agreed with WLF that the Louisiana doctor was improperly joined because the claim against the doctor was premature as a matter of law—Louisiana medical malpractice law requires plaintiffs to bring their claims to a medical review board before filing a malpractice claim in court. The Fifth Circuit held that joinder was improper because, at the time of removal, the plaintiff had not yet completed review-board proceedings—even though (as the dissent noted) the right to sue the doctor would eventually ripen.
After the decision, WLF issued the following statement by Chief Counsel Richard Samp: “The Fifth Circuit has taken an important step in preventing the plaintiffs’ bar from frustrating the right of out-of-state defendants to have cases heard in federal court. The Constitution’s Framers viewed the right to remove cases to federal court as an important safeguard against the bias that state courts sometimes exhibit towards local plaintiffs. In the absence of the improper-joinder doctrine, a plaintiff could always avoid removal by adding random defendants to a suit.”
WLF is a free-market, public-interest law firm and policy center that seeks to ensure that economic liberty is not impeded by excessive litigation.