explaining that, “when, on a motion to remand, a showing that compels a holding that there is no reasonable basis for predicting that state law would allow the plaintiff to recover against the in-state defendant necessarily compels the same result for the nonresident defendant, there is no improper joinder; there is only a lawsuit lacking in merit” and that, “[i]n such cases, it makes little sense to single out the in-state defendants as ‘sham’ defendants and call their joinder improper” and, “[i]n such circumstance, the allegation of improper joinder is actually an attack on the merits of plaintiff’s case as such”
How later courts described this case
- explaining that, “when, on a motion to remand, a showing that compels a holding that there is no reasonable basis for predicting that state law would allow the plaintiff to recover against the in-state defendant necessarily compels the same result for the nonresident defendant, there is no improper joinder; there is only a lawsuit lacking in merit” and that, “[i]n such cases, it makes little sense to single out the in-state defendants as ‘sham’ defendants and call their joinder improper” and, “[i]n such circumstance, the allegation of improper joinder is actually an attack on the merits of plaintiff’s case as such”
- finding “when a defendant removes a case to federal court on a claim of improper joinder, the district court's first inquiry is whether the removing party has carried its heavy burden of proving that the joinder was improper. Indeed, until the removing party does so, the court does not have the authority to do more; it lacks the jurisdiction to dismiss the case on its merits.”
- holding that, “when a nonresident defendant’s showing that there is no reasonable basis for predicting that state law would allow recovery against an in-state defendant equally disposes of all defendants, there is no improper joinder of the in-state defendant”; instead, “the entire suit must be remanded to state court”
- holding that there is no improper joinder when "the allegation of improper joinder rests only on a showing that there is no reasonable basis for predicting that state law would allow recovery against the in-state defendant and that showing is equally dispositive of all defendants”
Written by the judges who cited it.
The opinion
*585 JERRY E. SMITH, Circuit Judge,
with whom EDITH H. JONES and RHESA HAWKINS BARKSDALE, Circuit Judges, join, dissenting:
“Courts must be particularly circumspect in reconsidering decisions interpreting statutes.” Bhandan v. First Nat'l Bank of Commerce, 829 F.2d 1343, 1353 (5th Cir.1987) (en banc) (Higginbotham, J., concurring), vacated, 492 U.S. 901 , 109 S.Ct. 3207 , 106 L.Ed.2d 558 (1989). “As an inferior court we must not allow our version of a ‘correct’ result to deceive us into semantic games of reformulation and hair splitting in order to escape the force of a fairly resolved issue.” Id. at 1352 (Higginbotham, J., concurring). Contrary to this well-established tenet of stare deci-sis, however, the majority, in an opinion by Judge Higginbotham that reflects lowest-common-denominator reasoning, has unnecessarily created a mess in this circuit’s removal jurisprudence. Most significantly, in an offering worthy of the Oracle at Delphi, the majority, in an exercise of judicial activism, has made a quagmire out of what had been an orderly and fair process for determining fraudulent joinder.
In so doing, and by dusting off a forgotten decision of the Supreme Court, the majority has introduced needless friction and conflict into the federal-state rubric for determining the proper forum for civil diversity actions. And finally, in a remarkable showing of euphemistic chutzpah, the majority has renamed “fraudulent joinder” as “improper joinder,” upsetting decades of nomenclature without apparent reason. Agreeing with every word of Judge Jolly’s compelling dissent, I add a few comments.
I.
A.
The majority insists that “the focus of the inquiry must be on the joinder, not the merits of the plaintiffs case.” As Judge Jolly cogently shows, however, it is the majority’s new-fangled common-defense theory that expands inquiry into the merits by, as Judge Jolly puts it, “requiring] that the court look beyond the joinder of the nondiverse defendant to the entirety of the case and determine the defenses of the diverse defendant as well.”
The majority pretends that it avoids inquiry into the merits when making the determination of fraudulent-joinder-now-to-be-ealled-improper-joinder. The fatal flaw in this exercise is that under the majority’s construction, it is impossible to decide fraudulent-joinder-now-to-be-called-improper-joinder without making decisions on the merits.
Because the district court has jurisdiction to decide its own jurisdiction, that court has not only the capacity but the duty, in deciding the issue of fraudulent-joinder-now-to-be-called-improper-joinder, to address any merits questions that are made necessary by the majority’s scheme. The decision on any such merits issue then logically becomes a holding, because it is necessary to the result (i.e., remand) and therefore (again, logically) should be binding on the state court to which the action is returned.
If the majority were to respond (which it will not, see infra), it undoubtedly would counter that it is not deciding the merits at all — indeed, that it is prohibited from doing so, because, given that the ultimate result is that it is without jurisdiction over the merits, its power to decide is limited to *586 determining its own jurisdiction. In the majority’s words, “[attempting to proceed beyond [a] summary process carries a heavy risk of moving the court beyond jurisdiction and into a resolution of the merits.”
Overlooked in this reasoning is that it is at times not only desirable but necessary for a court to examine at least a portion of the merits as a precursor to deciding jurisdiction. “[A] federal court always has jurisdiction to determine its own jurisdiction. In order to make that determination, it was necessary for the [court of appeals] to address the merits.” United States v. Ruiz, 536 U.S. 622, 628 , 122 S.Ct. 2450 , 153 L.Ed.2d 586 (2002).
B.
The problem with imposing a rule by which the district court must “address the merits” is that the state court that receives the remand will need to decide what to do with that decision. In the instant case, the majority blesses “a summary inquiry ... to identify the presence of discrete and undisputed facts that would preclude plaintiffs recovery against the in-state defendant.” Where such preclusion is found, it “necessarily compels the same result for the nonresident defendant, [so] there is no improper joinder; there is only a lawsuit lacking in merit.” In other words, as the majority further explains, “the allegation of improper joinder is actually an'attack on the merits of plaintiffs case.... ”
The majority makes no effort to examine the consequences of its own explanation. The majority imposes a process whereby the federal district court is required to decide merits issues, even to' the point of declaring that the lawsuit is entirely “lacking in merit.” One would think that once a court of competent jurisdiction has made such á “decision” that a case is wholly without merit, that case is at an end, and no other court — state or federal — may reexamine it.
What, then, under the majority’s formulation, is the state court supposed to.do on remand? One option would be for the state court to dismiss the case ministerially and without making further inquiry into the correctness of the federal district court’s decision. 1 But that would be a process of unnecessary formalism and, in any event, is not what the majority apparently contemplates.
The majority gives no hint that the state court will be in any way bound by the federal district court’s pronouncement that, as a matter of merits and substance, the lawsuit is wholly lacking in merit. Very much to the. contrary, under today’s logic the state court will be free to disagree, to resurrect the case, and ultimately to award the plaintiff relief against the instate and out-of-state defendants as well. In other words, the state court will be free to ignore whatever merits conclusions the federal court has reached.
II.
The majority thus unnecessarily and unwittingly creates friction between state and federal jurisdictions. The majority’s new paradigm eviscerates what the majority venerates as the “principles of comity and federalism.” By thinly-veiled implication, the majority declares that the federal court is incompetent to make a binding pronouncement on the merits issues as to which the majority insists that same federal court is obliged to reach non-binding conclusions.
*587 This contrivance is at war with the collegial state-federal relations that the majority pretends to honor. The majority’s novel plan invites parties to take one tack in federal court and another once remand has been achieved. The majority’s reasoning invites disparate interpretations of the same issues of law by state and federal forums. It promotes manipulation and complication of a process that, until now, has been stable, predictable, and fair.
III.
By redesignating “fraudulent joinder” as “improper joinder,” the majority has shown its agility in innovative nomenclature. What should the majority call its new breed of merits decisions that are not binding holdings? Perhaps they are “musings,” or “asides” or “ruminations,” or “advisory opinions” or dicta, or even “preliminary predictions” — something less than a holding but more than an idle thought. They are, in any event, a breed apart. They are rulings the majority says are necessary to the decision on fraudulent-joinder-now-to-be-called-improper-joinder, but, once these rulings or ruminations are issued, they disappear into the ether, after remand, as if they had never even been expressed. They are simultaneously indispensable and expendable, at once both necessary and superfluous.
IV.
The majority’s newly-concocted “common-defense” rule, raised by plaintiff for the first time on appeal, will cause resourceful defense counsel, in the vigorous defense of their clients’ interests, to alter the way in which they plead defenses. The filing of defenses will be timed not in a way designed to ensure “the just, speedy, and inexpensive determination of [removed] action[s],” Fed.R.Civ.P. 1, but instead in such a manner as to avoid imposition of the majority’s common-defense mechanism. Defenses will be described and fashioned so that they cannot be deemed to apply to diverse and non-diverse defendants alike. Such manipulation and contrivance, exacerbating the prospect of varying state-federal adjudications I have described above, can only undermine respect for the courts.
V.
Entirely overlooked in the majority’s analysis is any concern for “the traditional values of stare decisis.” Bhandari v. First Nat’l Bank of Commerce, 829 F.2d 1843 , 1352 (5th Cir.1987) (en banc) (Higginbotham, J., concurring), vacated, 492 U.S. 901 , 109 S.Ct. 3207 , 106 L.Ed.2d 558 (1989). This principle is especially important where, as here, we are interpreting statutes instead of the Constitution. “Courts must be particularly circumspect in reconsidering decisions interpreting statutes.” Id. at 1353 (Higginbotham, J., concurring). “[I]f only a question of statutory construction were involved, we would not be prepared to abandon a doctrine so widely applied throughout nearly a century.” Erie R.R. v. Tompkins, 304 U.S. 64, 77-78 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938) (Brandeis, J.).
“[A]ny detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged to bring its opinions into agreement with experience and with facts newly ascertained.” Vasquez v. Hillary, 474 U.S. 254, 266 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986) (internal quotation and citation omitted). Here, the majority offers absolutely no reason why there is a problem, much less one that so badly needs to be fixed that it can trample stare decisis to achieve a questionable and bizarre result.
*588 We should not break with a well-established rule of law unless it is “outdated, ill-founded, unworkable, or otherwise vulnei'able to serious reconsideration.” Id. “[TJhere is a point at which the orderly-accommodations of law-making and law-interpreting demands that we resist reconsideration because Congress may well have acquiesced in prior statutory interpretations.” Bhandari, 829 F.2d at 1352 (Higginbotham, J., concurring). Here, there is not only no good reason to enact a change, there is no reason at all, except the majority’s ipse dixit.
It would be bad enough that the majority effects a sea change in the heretofore orderly world of removal jurisprudence. It is worse still that the majority makes no attempt to offer compelling reason for its revolution. It appears, in fact, that the majority can identify no reason, for it provides no answer — not even a word — in response to the cogent points made by Judge Jolly in dissent, to Judge Clement’s resourceful concurrence, or to the issues I have raised. The majority’s silence harms the collegial judicial process by leaving the reader to wonder whether the majority has even examined the objections that have been raised or, instead, is intransigent because of fear of losing its majority status. It would be far better for the two sides to join issue, despite their differences, in the interest of frankly fleshing out these important questions. Perhaps the majority merely has no answer to the deficiencies in its reasoning that the dissents have identified.
VI.
In sum, the majority is wrong for many reasons, not the least of which is that its pronouncement that a “defense [that] disposes of the entire case and renders it a ‘meritless case’” logically should, if true, completely end the litigation, not prolong it in another forum. The proper answer, instead, is that we can easily avoid the potential state-federal conflict, not to mention the inefficiency imposed by the majority’s new scheme, which, as Judge Jolly notes, will require mini-trials that turn simple proceedings into ordeals.
As Judge Jolly lucidly explains, “the [majority’s] common-defense theory requires that the court look beyond the join-der of the nondiverse defendant to the entirely of the case and determine the defenses of the diverse defendant as well. If the majority were serious in trumpeting a test that focuses on the joinder, and not the entire case, it would adhere to the traditional test.” That traditional test avoids all the pitfalls I have explained, and we are left with no explanation of why the majority is so determined to abandon it. Because our settled jurisprudence on fraudulent joinder should be left alone, I respectfully dissent.
. See, e.g., FDIC v. Meyerland Co. (In re Meyerland Co.), 960 F.2d 512 , 520 (5th Cir.1992) (en banc) (requiring court that receives an action to take it as it finds it and enter prescribed judgment without making independent evaluation of the merits).