Amicus Curiae Brief — The Hain Celestial Group, Inc., et al., Petitioners v. Sarah Palmquist, Individually and as Next Friend of E.P., a Minor, et al.

Supreme Court briefAug 18, 2025

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No. 24-724

IN THE

Supreme Court of the United States

__________

THE HAIN CELESTIAL GROUP, ET AL.,

Petitioner,

SARAH PALMQUIST, INDIVIDUALLY AND AS NEXT

FRIEND OF E.P., A MINOR, ET AL.,

Respondents.

__________

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

__________

BRIEF OF CIVIL PROCEDURE PROFESSORS

AS AMICI CURIAE IN SUPPORT OF

RESPONDENTS

__________

August 18, 2025

DAVID FREEMAN ENGSTROM

Lead Amicus Curiae and

Counsel of Record

Stanford Law School

559 Nathan Abbott Way

Stanford, CA 94305

(650) 721-5859

(dfengstrom@law.stanford.edu)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................... ii

INTEREST OF AMICI CURIAE ................................. 1

SUMMARY OF THE ARGUMENT ............................. 2

ARGUMENT.................................................................. 3

I. The Fifth Circuit wisely recognized

Caterpillar’s limited reach ................................ 3

II. Conscientious judging, not strategic

party behavior, is the right metric for

choosing among approaches .............................. 6

III.The Fifth Circuit’s approach more fairly

allocates error costs among the parties

and imposes minimal burden on courts ......... 11

IV. The

Fifth

Circuit’s

jurisdictionrespecting rule is more faithful to

federalism values ............................................. 19

CONCLUSION ............................................................ 27

APPENDIX .................................................................. 1a

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Great S. Ry. Co. v. Thompson,

200 U.S. 206 (1906).................................................... 8

Bond v. United States,

564 U.S. 211 (2011).................................................. 20

Bond v. United States,

572 U.S. 844 (2014).................................................. 20

Bylsma v. R.C. Willey,

416 P.3d 595 (Utah 2017) ....................................... 24

Caterpillar Inc. v. Lewis,

519 U.S. 61 (1996)......................... 2, 3, 4, 6, 9, 10, 20

Chambers v. NASCO, Inc.,

501 U.S. 32 (1991)...................................................... 7

Christianson v. Colt Indus. Operating Corp.,

486 U.S. 800 (1988).................................................. 12

Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541 (1949).................................................... 5

Coury v. Prot,

85 F.3d 244 (5th Cir. 1996) ..................................... 10

Davidson v. State,

211 N.E.3d 914 (Ind. 2023) ..................................... 27

Dupree v. Younger,

598 U.S. 729 (2023).................................................... 5

Gilchrist v. Interborough Rapid Transit Co.,

279 U.S. 159 (1929).................................................. 22

Giles v. Maryland,

386 U.S. 66 (1967)...................................................... 6

Gregory v. Ashcroft,

501 U.S. 452 (1991).................................................. 20

iii

Grubbs v. Gen. Elec. Credit Corp.,

405 U.S. 699 (1972)................................................ 3, 6

Grupo Dataflux v. Atlas Global Group, L.P.,

541 U.S. 567 (2004)......................... 4, 5, 6, 11, 12, 13

Harman v. Forssenius,

380 U.S. 528 (1965).................................................. 22

Healy v. Ratta,

292 U.S. 263 (1934).................................................. 21

Hickman v. Taylor,

329 U.S. 495 (1947).................................................... 7

Holcim (US), Inc. v. Ohio Cas. Ins. Co.,

38 So. 3d 722 (Ala. 2009)......................................... 25

Howery v. Allstate Ins. Co.,

243 F.3d 912 (5th Cir. 2001) ................................... 21

Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375 (1994).................................................. 11

Lexecon Inc. v. Milberg Weiss Bershad Hynes &

Lerach,

523 U.S. 26 (1998).................................................. 4, 6

Lexington Ins. Co. v. Rugg & Knopp, Inc.,

165 F.3d 1087 (7th Cir. 1999) ................................. 22

Merrill Lynch, Pierce, Fenner & Smith Inc. v.

Manning,

578 U.S. 374 (2016).................................................. 21

Mollan v. Torrance,

22 U.S. (9 Wheat.) 537 (1824) ................................... 4

Murr v. Wisconsin,

582 U.S. 383 (2017).................................................... 6

Newman-Green, Inc. v. Alfonzo-Larrain R.,

854 F.2d 916 (7th Cir. 1988) ................................... 10

Newman-Green, Inc. v. Alfonzo-Larrain,

490 U.S. 826 (1989)............................................ 3, 4, 6

Romero v. Int’l Terminal Operating Co.,

358 U.S. 354 (1959).................................................. 21

Royal Canin U.S.A., Inc. v. Wullschleger,

604 U.S. 22 (2025)...................................................... 8

Santosky v. Kramer,

455 U.S. 745 (1982).................................................. 11

Shamrock Oil & Gas Corp. v. Sheets,

313 U.S. 100 (1941)............................................ 11, 21

Shantigar Found. v. Bear Mountain Builders,

804 N.E.2d 324 (Mass. 2004) .................................. 25

Tafflin v. Levitt,

493 U.S. 455 (1990).................................................. 19

U.S. Forest Serv. v. Cowpasture River Pres. Ass’n,

590 U.S. 604 (2020).................................................. 20

Vickers v. Chiles Drilling Co.,

822 F.2d 535 (5th Cir. 1987) ................................... 23

Zamora v. Mobil Corp.,

104 Wash. 2d 199 (1985) ......................................... 24

Statutes

28 U.S.C. § 1332 ............................................................ 5

28 U.S.C. § 1407 ............................................................ 4

28 U.S.C. § 1441 ........................................................ 3, 5

28 U.S.C. § 1441(a)........................................................ 5

28 U.S.C. § 1446 ...................................................... 3, 21

28 U.S.C. § 1447 ............................................................ 3

Fed. R. Civ. P. 21 ........................................................... 3

Fed. R. Civ. P. 54(b) ...................................................... 8

IND. CODE § 34-51-2-7(b)(1) ........................................ 26

TEX. CIV. PRAC. & REM. CODE § 33.003(a) ................. 25

TEX. CIV. PRAC. & REM. CODE § 33.004(i)(2) ............. 26

TEX. CIV. PRAC. & REM. CODE § 82.003(a) ................. 23

TEX. R. CIV. P. 203.6(b) ............................................... 13

VA. CODE ANN. § 8.01-443........................................... 25

Other Authorities

14C Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 3723 (Rev. 4th ed.

2025)............................................................................ 5

16 Moore’s Federal Practice § 107.151 (3d ed. 2025).. 5

4 LAWRENCE G. CETRULO, TOXIC TORTS LITIGATION

GUIDE, Westlaw (database updated Feb. 2025) ...... 8

8A Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2044.1 (3d ed. 2025)...... 13

Amanda L. Tyler, After Justice Ginsburg’s First

Decade: Some Thoughts About Her Contributions in

the Fields of Procedure and Jurisdiction, 90 GEO.

WASH. L. REV. 1572 (2022) ...................................... 10

Dolores K. Sloviter, A Federal Judge Views Diversity

Jurisdiction Through the Lens of Federalism, 78

VA. L. REV. 1671 (1992) ........................................... 22

Elizabeth G. Thornburg, Contracting with

Tortfeasors: Mandatory Arbitration Clauses and

Personal Injury Claims, 67 LAW & CONTEMP.

PROBS. 253 (2004) .................................................... 18

Historical Population Change Data (1910-2020), U.S.

CENSUS BUREAU (April 26, 2021),

https://www.census.gov/data/tables/timeseries/dec/popchange-data-text.html ..................... 16

JAMES S. KAKALIK ET AL., RAND INST. FOR CIVIL

JUST., DISCOVERY MANAGEMENT: FURTHER

ANALYSIS OF THE CIVIL JUSTICE REFORM ACT

EVALUATION DATA (1998) ........................................ 13

Joe Palazzolo, We Won’t See You in Court: The Era of

Tort Lawsuits Is Waning, WALL ST. J. (July 24,

2017), https://www.wsj.com/articles/we-wont-seeyou-in-court-the-era-of-tort-lawsuits-is-waning1500930572 .............................................................. 18

John R. Brown, Certification–Federalism in Action, 7

CUMB. L. REV. 455 (1977) ........................................ 22

Judicial Business 2020, U.S. COURTS,

https://www.uscourts.gov/datanews/reports/statistical-reports/judicial-businessunited-states/judicial-business-2020 (last visited

Aug. 17, 2025) .......................................................... 15

Judicial Caseload Indicators – Judicial Business

2024, U.S. COURTS, https://www.uscourts.gov/datanews/reports/statistical-reports/judicial-businessunited-states-courts/judicial-business2024/judicial-caseload-indicators-judicial-business2024 (last visited Aug. 17, 2025) ............................ 15

MARC A. FRANKLIN, ROBERT L. RABIN, MICHAEL D.

GREEN, MARK A. GEISTFELD, & NORA FREEMAN

ENGSTROM, TORT LAW AND ALTERNATIVES: CASES

AND MATERIALS (11th ed. 2021) .............................. 25

Myungho Paik et al., The Receding Tide of Medical

Malpractice Litigation: Part 1—National Trends,

10 J. EMPIRICAL LEGAL STUD. 612 (2013)............... 18

National Population Totals and Components of

Change: 2020-2024, U.S. CENSUS BUREAU

(Dec. 2024),

vii

https://www.census.gov/data/tables/timeseries/demo/popest/2020s-national-total.html ...... 15

Neal Miller, An Empirical Study of Forum Choices in

Removal Cases Under Diversity and Federal

Question Jurisdiction, 41 AM. U. L. REV. 369 (1992)

..................................................................................... 8

Nora Freeman Engstrom & David Freeman

Engstrom, The Making of the A2J Crisis, 75 STAN.

L. REV. ONLINE 146 (2024) ...................................... 19

Nora Freeman Engstrom, Supplying a Key Piece of

the Tort-Decline Puzzle, JOTWELL (Mar. 20, 2020),

https://torts.jotwell.com/supplying-a-key-piece-ofthe-tort-decline-puzzle/ ..................................... 17, 18

Nora Freeman Engstrom, The Diminished Trial, 86

FORDHAM L. REV. 2131 (2018)................................. 14

Rebecca Love Kourlis & Neil M. Gorsuch, Legal

Advice is Often Unaffordable. Here’s How More

People Can Get Help, USA TODAY (Sept. 17, 2020),

https://www.usatoday.com/story/opinion/2020/09/17

/lawyers-expensive-competition-innovationincrease-access-gorsuch-column/5817467002/ ...... 19

Restatement (Second) of Torts § 402A (1965) .......... 23

Restatement (Third) of Torts: Product Liability § 1

(1998) ........................................................................ 23

Roscoe Pound, The Causes of Popular Dissatisfaction

with the Administration of Justice, Address Before

the Annual Convention of the American Bar

Association (Aug. 29, 1906), in 14 AM. LAW. 445

(1906) .......................................................................... 6

STEPHEN DANIELS & JOANNE MARTIN, TORT REFORM,

PLAINTIFFS’ LAWYERS, AND ACCESS TO JUSTICE

(2015) ........................................................................ 18

viii

THOMAS J. SCHOENBAUM, ADMIRALTY & MARITIME

LAW § 5.13 (6th ed. 2019) ........................................ 23

Trial Court Caseload Data, NAT’L CTR. FOR STATE

CTS., https://www.ncsc.org/explore-court-caseloaddata (last visited Aug. 17, 2025)............................. 16

U.S. COURTS, TABLE C-3, U.S. DISTRICT COURTS—

CIVIL CASES COMMENCED, BY NATURE OF SUIT AND

DISTRICT, DURING THE 12-MONTH PERIOD ENDING

JUNE 30, 2005,

https://www.uscourts.gov/sites/default/files/statistic

s_import_dir/C03jun05.pdf ..................................... 15

U.S. COURTS, TABLE C-3, U.S. DISTRICT COURTS—

CIVIL CASES COMMENCED, BY NATURE OF SUIT AND

DISTRICT, DURING THE 12-MONTH PERIOD ENDING

JUNE 30, 2010,

https://www.uscourts.gov/sites/default/files/statistic

s_import_dir/C03Jun10.pdf .................................... 15

U.S. COURTS, TABLE C-3, U.S. DISTRICT COURTS—

CIVIL CASES COMMENCED, BY NATURE OF SUIT AND

DISTRICT, DURING THE 12-MONTH PERIOD ENDING

JUNE 30, 2015,

https://www.uscourts.gov/sites/default/files/c03jun1

5_0.pdf....................................................................... 15

INTEREST OF AMICI CURIAE 1

Amici are law professors whose scholarship and

teaching focus on civil procedure. Amici have devoted

substantial parts of their professional careers to

studying that subject, including conducting

theoretical and empirical analyses of how different

procedural orderings shape litigation and regulatory

schemes.

This brief reflects the consensus of the amici that

this Court should affirm the Fifth Circuit’s decision

and hold that the rule announced in Caterpillar Inc. v.

Lewis, 519 U.S. 61 (1996), does not extend to a

situation in which a jurisdictional error remains

uncured at the time of judgment. Amici are as

follows:2

Professor David Freeman Engstrom is the LSVF

Professor of Law at Stanford Law School.

Professor Stephen B. Burbank is the David Berger

Professor for the Administration of Justice Emeritus

at the University of Pennsylvania Law School.

Professor Maggie Gardner is Professor of Law at

Cornell Law School.

Professor Myriam Gilles is Catharine Waugh

McCullough Professor of Law at Northwestern

Pritzker School of Law.

Pursuant to Supreme Court Rule 37.6, counsel for amici

represent that none of the parties or their counsel made a

monetary contribution intended to fund the preparation or

submission of this brief. Professor Engstrom, as counsel for

amici, was compensated for his work on this submission by Lyons

& Simmons LLP.

Amici’s institutional affiliations are included solely for

identification purposes. The views expressed in this brief do not

reflect the views of those institutions.

Professor Maria Glover is the Carmack Waterhouse

Professor of Law at the Georgetown University Law

Center.

Professor David Marcus is Professor of Law at

UCLA School of Law.

Professor Diego Zambrano is Professor of Law at

Stanford Law School.

Professor Adam Zimmerman is the Robert Kingsley

Professor of Law at USC Gould School of Law.

SUMMARY OF THE ARGUMENT

In Caterpillar, this Court held that all’s well that

ends well where a district court’s “initial

misjudgment” about its own jurisdiction is voluntarily

cured by the parties before entry of judgment. This

case is different. Because the district court’s erroneous

jurisdictional ruling remained interlocutory, the

defect persisted through final judgment. Accordingly,

Caterpillar’s narrow and pragmatic exception simply

does not apply. See Caterpillar Inc. v. Lewis, 519 U.S.

61, 76-77 (1996) (“[I]f, at the end of the day and case,

a jurisdictional defect remains uncured, the judgment

must be vacated.”) (emphasis omitted). As this Court’s

more recent decisions underscore, federal courts may

not turn a blind eye to uncured jurisdictional defects

simply to salvage a judgment. When a district court

lacks subject-matter jurisdiction at the time it enters

judgment, the only appropriate remedy is vacatur.

Lacking doctrinal support for their finality-despiteerror approach, Petitioners and their amici fall back

on lurid tales of far-fetched litigation incentives, onesided claims of prejudice, and the usual, longdebunked warnings about a civil justice system run

amok. On each count, Petitioners and their amici are

simply wrong—and their bare assertions do not

withstand even basic empirical scrutiny. Getting

these background facts right is particularly important

where, as here, judge-made rules would not only

nullify congressionally conferred procedural rights

but also disregard significant federalism interests and

frustrate states’ considered policy judgments.

ARGUMENT

I. The Fifth Circuit wisely recognized

Caterpillar’s limited reach.

Petitioners and their amici are swimming against a

strong tide. True, in three decisions scattered across

several decades, this Court chipped away at strict

jurisdictional purity and pushed the boundaries of

federal jurisdiction by permitting court-made rules to

reshape, in certain narrow instances, the federal

courts’ diversity jurisdiction. In Caterpillar, this

Court licensed retroactive jurisdiction where the

parties voluntarily cured the defect on their own, in

order to conserve judicial resources. Caterpillar Inc. v.

Lewis, 519 U.S. 61, 75-76 (1996). Some years before,

in Grubbs v. Gen. Elec. Credit Corp., 405 U.S. 699, 700

(1972), the Court also recognized the utility of the

doctrine of waiver in the suspect circumstance where

a party, having chosen not to object to removal, suffers

an adverse judgment at trial and raises the

jurisdictional issue for the first time in a postjudgment appeal. See Caterpillar, 519 U.S. at 72-73

(interpreting Grubbs in this light). Finally, in

Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826,

836-38 (1989)—a case commenced in federal court

rather than removed, and so outside Congress’s clear

policy choices in 28 U.S.C. §§ 1441, 1446 and 1447—

this Court allowed the court of appeals to dismiss a

non-diverse “spoiler” party under Rule 21 where the

party was dispensable and no other party would suffer

prejudice. Id. at 836-38.

More recently, however, this Court has wisely

resisted further jurisdictional flexibility in the name

of efficiency. First, in Lexecon Inc. v. Milberg Weiss

Bershad Hynes & Lerach, 523 U.S. 26, 42-43 (1998), a

statutory construction case interpreting 28 U.S.C.

§ 1407’s remand mandate in multidistrict litigation,

this Court unanimously distinguished Caterpillar in

rejecting a harmless-error contention. Values of

finality, economy, and efficiency were relevant in

Caterpillar, this Court explained, only because

jurisdiction was satisfied at the time of judgment and

so did not constitute “continuing defiance of the

congressional condition.” Id. at 43. But Congress’s

command, the Court continued, “would lose all

meaning if a party who continuously objected to an

uncorrected categorical violation of the mandate could

obtain no relief at the end of the day.” Id.

This Court’s decision in Grupo Dataflux v. Atlas

Global Group, L.P., 541 U.S. 567 (2004), limited

Caterpillar’s reach in even more decisive terms. Id. at

572-73. Writing for the Court, Justice Scalia

addressed whether a subsequent change in a party’s

citizenship could cure a defect in diversity jurisdiction

present when the lawsuit was filed. The Court held

that it could not, reaffirming the longstanding “timeof-filing” rule—namely, that jurisdiction must exist

based on the facts at the moment the complaint is

filed. The Court reiterated that “‘the jurisdiction of the

court depends upon the state of things at the time of

the action brought.’” Id. at 570 (quoting Mollan v.

Torrance, 22 U.S. (9 Wheat.) 537, 539 (1824)). In so

doing, this Court emphasized that Caterpillar did not

announce a new approach to jurisdiction—indeed, it

“broke no new ground”—but rather carved out a

narrow, preexisting exception to the usual time-offiling rule. Id. at 572.

The Grupo Dataflux Court took further pains to

reject any suggestion that considerations of finality,

efficiency, or economy were relevant to the “cure of the

jurisdictional defect.” 541 U.S. at 574 (emphasis

omitted). This was so, the Court explained, because its

analysis in Caterpillar “took as its starting point that

subject-matter jurisdiction had been satisfied” by the

time judgment was entered. Id. (emphasis omitted).

Values of finality, efficiency, and economy, the Court

made clear, might be deployed to overlook violation of

a congressional condition at an earlier stage in the

case, but those court-directed values have no purchase

where the violation continues through to final

judgment. Id. at 571 (noting that dismissal is required

in such a case “regardless of the costs it imposes”).

Thus framed, Grupo Dataflux limited Caterpillar’s

reach to cases about statutory defects in removal

procedure, under 28 U.S.C. § 1441(a), not

jurisdictional ones, under 28 U.S.C. § 1332. See 16

Moore’s Federal Practice § 107.151[2][f] (3d ed. 2025);

14C Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 3723 (Rev. 4th ed. 2025).3

That distinction is critical to this case because, as

Respondents ably explain (at 20-21), they neither settled nor

abandoned their claims against Whole Foods. See Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)

(underscoring that interlocutory orders “are but steps towards

[the] final judgment in which they will merge”); Dupree v.

Younger, 598 U.S. 729, 735 (2023) (observing that interlocutory

rulings “merge into the final judgment”). And, because Whole

Foods remained in the case at the time the district court entered

judgment, both the Section 1441(a) and the Section 1332

violations persisted at that judgment’s entry.

Reaffirming the principle that federal courts

possess only limited jurisdiction, this Court has thus

wisely signaled a retreat from the fragile position in

Caterpillar, Grubbs, and Newman-Green that

jurisdiction can be salvaged, judgments resurrected,

and Congress’s command ignored where necessary to

preserve judicial resources. This Court should not now

reenter the jurisdiction renovation business by

minting a new, Caterpillar-expanding exception to the

statutory requirements of subject-matter jurisdiction.

Doing so would run roughshod over Congress’s clear

command in the removal statutes, which nowhere so

much as hint at support for the extreme jurisdictional

flexibility that Petitioners urge here.

II.

Conscientious judging, not strategic

party behavior, is the right metric for

choosing among approaches.

Even if this Court were inclined to ignore Lexecon

and Grupo Dataflux and let efficiency concerns

override Congress’s jurisdictional directives—a tall

order—Petitioners and their amici misread the

strategic incentives involved in this case. Indeed, it is

not party incentives that should occupy the Court here

but rather judicial ones.

A vital aim of civil procedure is to temper costly

forms of strategic behavior by the parties. As Roscoe

Pound cautioned many decades ago, civil procedure

should not enact a “sporting theory of justice.” Roscoe

Pound, The Causes of Popular Dissatisfaction with the

Administration of Justice, Address Before the Annual

Convention of the American Bar Association (Aug. 29,

1906), in 14 AM. LAW. 445, 447 (1906); see also Murr v.

Wisconsin, 582 U.S. 383, 402 (2017) (warning of the

“risk of gamesmanship”); Giles v. Maryland, 386 U.S.

66, 102 (1967) (Fortas, J., concurring) (arguing that a

trial is “not a sporting event”). For this reason, the

Rules Committee and this Court have long tried to

structure procedures to limit delay and curb discovery

abuse, among other costly forms of procedural

maneuvering. See Hickman v. Taylor, 329 U.S. 495,

508 (1947) (explaining that limitations on discovery

are appropriate to prevent examination “conducted in

bad faith or in such a manner as to annoy, embarrass

or oppress the person subject to the inquiry”);

Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991)

(explaining that courts possess inherent powers to

sanction bad-faith tactics, including “delaying or

disrupting the litigation”) (citation omitted). But in so

doing, courts and rulemakers must be clear-eyed

about what the incentives are and where they point.

Petitioners and their amici fail badly in that regard

by distorting, at nearly every turn, the strategic

incentives at issue in this case. For starters, the core

of the elaborate account imagined by Petitioners’

amici is fanciful. On their view, the Fifth Circuit’s

jurisdiction-respecting rule will boost a plaintiff’s

incentive to join non-diverse defendants based in the

hope that, should a remand motion be wrongly denied,

the case might proceed in federal court and, in the

event of an unfavorable trial outcome plus an

appellate court’s assignment of error, yield vacatur

and retrial in state court. The prospect of vacatur and

remand, they suggest, will induce plaintiffs to overjoin non-diverse defendants at the outset of a case

with that distant end-game in mind. Atl. Legal Found.

Br. 2; Prod. Liab. Advisory Council Br. 4; Nat’l Ass’n

of Mfrs. Br. 5-6. Cf. Petr. Br. 21 (asserting “mischief”

supposedly caused by the Fifth Circuit’s approach). 4

4 Petitioners, for their part, focus on the fact that Respondents

did not file a Rule 54(b) motion for partial final judgment as to

The reality is that plaintiffs in Respondents’ shoes

already have powerful incentives to structure their

lawsuit to stay in state court. Litigating in state court

offers numerous advantages, including more familiar

procedures, lower litigation costs, a local judge and

jury, the additional settlement leverage that can come

with litigating against multiple defendants

simultaneously, and preempting a defendant’s effort

to point to the “empty chair” of an absent defendant as

the true culprit. Pursuit of these advantages is

thought to be well within a plaintiff’s prerogatives as

the “master of the complaint” under the American way

of law. Royal Canin U.S.A., Inc. v. Wullschleger, 604

U.S. 22, 35 (2025) (“The plaintiff is ‘the master of the

complaint,’ and therefore controls much about her

suit.”) (citation omitted); Ala. Great S. Ry. Co. v.

Thompson, 200 U.S. 206, 216 (1906) (“[T]he plaintiff

may elect his own method of attack.”).5

Whole Foods. But both Petitioners, no less than Respondents,

had the ability, if they were confident in the district court’s

jurisdictional ruling, to seek a Rule 54(b) certification as to Whole

Foods and achieve finality, but they did not do so.

It should also be noted that defendants, no less than

plaintiffs, have strong forum preferences—and typically prefer

federal court. See 4 LAWRENCE G. CETRULO, TOXIC TORTS

LITIGATION GUIDE § 47:38, Westlaw (database updated

Feb. 2025) (“Generally, civil defendants prefer to litigate in

federal court. Reasons cited by defendants as to why they favor

federal jurisdiction include a more favorable appointed judge,

favorable rules of discovery, a potential choice of venue out of the

state, and a more diverse jury pool. Another common

generalization of federal courts is that they are more likely to

dismiss a pleading on a motion to dismiss or summary

judgment.”); see also Neal Miller, An Empirical Study of Forum

Choices in Removal Cases Under Diversity and Federal Question

Jurisdiction, 41 AM. U. L. REV. 369, 392-423 (1992).

Given these already-existing incentives, it is highly

unlikely that a rational plaintiff, in framing a lawsuit

at its outset, would be further moved to join a nondiverse defendant based on the slim and distant

prospect of a do-over after a twisting chain of events

that includes removal, an erroneous remand ruling,

an adverse trial outcome, and an appellate court’s

determination that the trial court committed error in

denying a remand motion. That convoluted, Palsgrafian sequence is far too speculative and remote to

impact how cases are framed or complaints drafted at

the outset of a case. Indeed, in Caterpillar itself, this

Court rejected a similarly attenuated chain of events

grounded in a dubious assumption regarding

“defendants’ readiness to gamble that any

jurisdictional defect, for example, the absence of

complete diversity, will first escape detection [and]

then disappear prior to judgment.” Caterpillar, 519

U.S. at 77. The absurdity of the “gamble” imagined by

Petitioners and their amici in this case is further

underscored by the paucity of cases in which the

court’s subject-matter jurisdiction was called into

question post-judgment—at best, a small handful

every few years. See infra Part III and Appendix A.

In truth, neither side in cases like this one—neither

plaintiffs nor defendants—is likely to craft a filing or

removal strategy at the front-end of a case based on

the remote chance of vacatur at the case’s distant

back-end. Put more concretely, defendants are no

more likely to over-remove cases under Petitioners’

finality-despite-error rule than are plaintiffs to overjoin non-diverse defendants under the Fifth Circuit’s

jurisdiction-respecting approach. Because both

parties already face far more potent incentives to steer

the case into one forum or another, this Court should

not be distracted by the efforts of Petitioners’ amici to

smoke out perverse incentives that simply do not

exist.

Rather than consider the effect of competing rules

on the parties’ incentives, it would be far more

productive for this Court to instead consider the effect

of those rules on judges. As a respected procedure

scholar has noted, an alternative rule in Caterpillar

that elevated jurisdictional boundaries over finality,

economy, and efficiency would have had a “powerful

effect on federal district judges, encouraging them to

police their removal jurisdiction more carefully rather

than risk an embarrassing and wasteful removal and

appeal.” Amanda L. Tyler, After Justice Ginsburg’s

First Decade: Some Thoughts About Her Contributions

in the Fields of Procedure and Jurisdiction, 90 GEO.

WASH. L. REV. 1572, 1590 (2022).

This is not to suggest that district judges will “balk

at” applying jurisdictional rules with due care—and

this Court has rightly refused to indulge any such

assumption. Caterpillar, 519 U.S. at 77. But it does

not follow that this Court must blind itself to the likely

incentive effects of its rulings. Well-crafted procedures

can and should create incentives for judges to

carefully resolve threshold matters before investing

time and energy in more resource-intensive stages of

litigation. See Newman-Green, Inc. v. Alfonzo-Larrain

R., 854 F.2d 916, 923 (7th Cir. 1988) (noting “the

importance of scrupulous adherence to the

jurisdictional limitations of the federal courts”); Coury

v. Prot, 85 F.3d 244, 249 (5th Cir. 1996) (noting role

for judges as watchdogs to prevent litigants from

“‘playing fast and loose with the judicial machinery’

and using the federal courts’ limited subject matter

jurisdiction in bad faith”) (citation omitted). Moreover,

a modest, stop-and-think incentive to consider the

soundness of a court’s jurisdiction before permitting a

case to go forward is entirely consonant with the

principle that federal courts should “presume[] that a

cause lies outside [their] limited jurisdiction,”

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 377 (1994), and, further, that they should

narrowly construe the removal statutes to avoid

infringing on a state court’s authority to decide a case

within its jurisdiction, Shamrock Oil & Gas Corp. v.

Sheets, 313 U.S. 100, 108-09 (1941).

Far from fueling perverse party incentives, the Fifth

Circuit’s jurisdiction-respecting rule would promote

efficiency over the long-term. By nudging district

courts to proceed cautiously in deciding remand

motions, the threat of vacatur would induce more

accurate jurisdictional determinations upfront while

aligning judicial incentives with the federal courts’

role as courts of limited jurisdiction. Not only that, but

the Fifth Circuit’s rule would minimize burdensome

litigation seeking new, judge-made exceptions to

Congress’s directives—enhancing long-term efficiency

without ignoring congressional command. See Grupo

Dataflux, 541 U.S. at 580-81.

III.

The Fifth Circuit’s approach more fairly

allocates error costs among the parties

and imposes minimal burden on courts.

Another important aim of procedure is to allocate

error costs in the face of inevitable imperfection. Cf.

Santosky v. Kramer, 455 U.S. 745, 755 (1982) (keying

procedural due process analysis to “how the risk of

error should be distributed between the litigants”).

When mistakes are made, who should shoulder the

burden?

Petitioners offer a bracing answer. Their finalitydespite-error rule would have Respondents bear all of

the cost of the district court’s jurisdictional error: first,

a trial in a court, and with a party structure, they did

not choose; second, the expense of two trials rather

than one if they pursue Whole Foods in a separate

state court action; and third, facing down the nearcertain invocation of issue preclusion by Whole Foods

if they do.

The Fifth Circuit’s jurisdiction-respecting approach,

by contrast, would more evenly and equitably

distribute error costs between the parties. For

starters, vacatur would reduce (but not eliminate) the

costs to plaintiffs in Respondents’ shoes—requiring

them to incur the expense of conducting a second trial,

but at least one in the forum they initially chose.

At the same time, vacatur would visit comparably

modest harm on defendants in Petitioners’ position.

True, Petitioners suffered a multi-day trial in federal

court that would be unwound in the event of vacatur,

and they also litigated (but lost) before the Fifth

Circuit in their fruitless effort to defend the district

court’s erroneous jurisdictional ruling. That is an

unfortunate, but hardly unusual, circumstance in

litigation. See Christianson v. Colt Indus. Operating

Corp., 486 U.S. 800, 818 (1988) (“The age-old rule that

a court may not in any case, even in the interest of

justice, extend its jurisdiction where none exists has

always worked injustice in particular cases. Parties

often spend years litigating claims only to learn that

their efforts and expense were wasted in a court that

lacked jurisdiction.”); see also Grupo Dataflux, 541

U.S. at 569 (dismissal after three years of pre-trial

litigation and a six-day trial). But the claims of

Petitioners and their amici are nonetheless

exaggerated in this regard. Every good lawyer knows

that pre-trial litigation is where many and even most

litigation costs accrue. JAMES S. KAKALIK ET AL.,

RAND INST. FOR CIVIL JUST., DISCOVERY

MANAGEMENT: FURTHER ANALYSIS OF THE CIVIL

JUSTICE REFORM ACT EVALUATION DATA, at xxi (1998).

So does this Court. See Grupo Dataflux, 541 U.S. at

577 (noting that pretrial litigation, particularly

discovery and motions practice, often accounts for a

large portion of litigation costs).

Here, those costs are sunk. Much of the pretrial

work performed in the run-up to trial before the

district court would transfer, more or less seamlessly,

to any remanded state court case against both

defendants. See 8A Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 2044.1 (3d ed.

2025) (noting that the “prevailing approach” permits

the use of discovery materials obtained in one

proceeding in another action to reduce expense); TEX.

R. CIV. P. 203.6(b) (authorizing use of depositions in

the “same proceeding,” defined to include “a

proceeding in a different court but involving the same

subject matter and the same parties”).

Petitioners’ proposal that plaintiffs should bear all

of the cost of the district court’s jurisdictional error

rests on their further unfounded assertion (at 29) that

the vacatur required by the Fifth Circuit’s rule would

impose substantial and unnecessary burdens on

federal and state courts. See also Atl. Legal Found. Br.

4-5; Nat’l Ass’n of Mfrs. Br. 6-20. Their contentions

here are demonstrably false.

To begin, federal courts would incur burdens only if

the Fifth Circuit’s jurisdiction-respecting approach

landed more cases in federal court. But, as just noted

in Part II, plaintiffs are no more likely to over-join

defendants under the Fifth Circuit’s rule based on a

distant endgame after a twisting chain of events than

are defendants to over-remove to federal court under

Petitioners’ alternative approach. Much as Petitioners

try to convince the Court otherwise, this is not a case

about perverse party incentives. And, as already noted

in Part II, the Fifth Circuit’s jurisdiction-respecting

rule will lower the burden on federal courts by

creating salutary incentives for district judges to

conscientiously consider their own jurisdiction before

advancing a case.

A more general problem with the court-burden

claims of Petitioners and their amici is that the

number of cases that might trigger the endgame of

vacatur or retroactive jurisdiction under either

approach is likely to be vanishingly small. Indeed, a

comprehensive search of both reported and

unreported cases in Westlaw turned up only 42 cases

between 1990 and 2025—slightly over one per year.

See Appendix A. And all but one went up on appeal

from a dispositive motion, not a trial—a finding that

is entirely consistent with the near-complete

vanishing of trials throughout the American legal

system. See generally Nora Freeman Engstrom, The

Diminished Trial, 86 FORDHAM L. REV. 2131 (2018).

While hard-won experience conducting empirical legal

studies suggests that dozens of hours of further

research using direct PACER docket searches or

similar tools might turn up a handful of additional

cases, the total is all but certain to remain something

less than a very small blip on the federal court radar.

The remaining empirical assertions by Petitioners’

amici that relate to court burdens—that federal and

state courts are “chronically clogged” (Atl. Legal

Found. Br. 5) and laboring under “crushing” caseloads

(Nat’l Ass’n of Mfrs. Br. 3), and that tort claims are on

the rise (Nat’l Ass’n of Mfrs. Br. 17-18)—do not

survive even basic empirical scrutiny.

Far from “chronically clogged” or laboring under

“crushing” caseloads, federal and state courts have

seen substantial reductions in docket loads in recent

years. Start with federal courts. As reflected in Figure

1 below, federal district court filings declined

precipitously between 2020 and 2024 after a spike in

filings caused by a single multidistrict litigation. Zoom

out and federal civil case filings have hovered around

280,000 per year for twenty years, despite substantial

population growth (roughly 17 percent) over that

same period.6

6 This paragraph’s claims and Figure 1’s data visualization

derive from five official sources: Judicial Caseload Indicators –

Judicial

Business

2024,

U.S.

COURTS,

https://www.uscourts.gov/data-news/reports/statisticalreports/judicial-business-united-states-courts/judicial-business2024/judicial-caseload-indicators-judicial-business-2024

(last

visited Aug. 17, 2025) (reporting filings between 2015 and 2024);

Judicial

Business

2020,

U.S.

COURTS,

https://www.uscourts.gov/data-news/reports/statisticalreports/judicial-business-united-states/judicial-business-2020

(last visited Aug. 17, 2025); U.S. COURTS, TABLE C-3, U.S.

DISTRICT COURTS—CIVIL CASES COMMENCED, BY NATURE OF SUIT

AND DISTRICT, DURING THE 12-MONTH PERIOD ENDING JUNE 30,

2005,

https://www.uscourts.gov/sites/default/files/statistics_import_dir

/C03jun05.pdf; U.S. COURTS, TABLE C-3, U.S. DISTRICT COURTS—

CIVIL CASES COMMENCED, BY NATURE OF SUIT AND DISTRICT,

DURING THE 12-MONTH PERIOD ENDING JUNE 30, 2015,

https://www.uscourts.gov/sites/default/files/c03jun15_0.pdf; U.S.

COURTS, TABLE C-3, U.S. DISTRICT COURTS—CIVIL CASES

COMMENCED, BY NATURE OF SUIT AND DISTRICT, DURING THE 12MONTH

PERIOD

ENDING

JUNE

30,

2010,

https://www.uscourts.gov/sites/default/files/statistics_import_dir

/C03Jun10.pdf. For population growth, see National Population

Totals and Components of Change: 2020-2024, U.S. CENSUS

FIGURE 1. U.S. DISTRICT COURT CIVIL CASE FILINGS,

2005–2024

State court docket loads, meanwhile, have seen

steady and substantial declines. As reflected in Figure

2, total state court filings dropped a whopping 30

percent between 2012 and 2023, with civil, domestic

relations, and juvenile matters seeing drops of 18

percent, 14 percent, and 41 percent, respectively.7

BUREAU (Dec. 2024), https://www.census.gov/data/tables/timeseries/demo/popest/2020s-national-total.html;

Historical

Population Change Data (1910-2020), U.S. CENSUS BUREAU

(April 26,

2021),

https://www.census.gov/data/tables/timeseries/dec/popchange-data-text.html.

7 These numbers and Figure 2’s data visualization are derived

from a dashboard tool maintained by the National Center for

State Courts. See Trial Court Caseload Data, NAT’L CTR. FOR

STATE CTS., https://www.ncsc.org/explore-court-caseload-data

(last visited Aug. 17, 2025).

FIGURE 2. STATE COURT CASE FILINGS, 2012–2023

The empirical claims made by Petitioners’ amici

about tort-filing trends are similarly shoddy. In fact,

federal court tort filings declined nearly 70 percent

between 1985 and 2016. See Nora Freeman Engstrom,

Supplying a Key Piece of the Tort-Decline Puzzle,

JOTWELL

(Mar. 20,

2020),

https://torts.jotwell.com/supplying-a-key-piece-of-thetort-decline-puzzle/ (reporting that, in the federal

system, there were 29,655 tort lawsuits filed in 1985

but only 12,114 such cases in 2016, a decline of 69

percent).

Drop down to the state level and tort cases have

almost entirely disappeared from court dockets.

Today, torts account for just 4 percent of state-level

case filings, a sharp drop from the mid-1980s, when

personal injury cases made up about 20 percent of

state court civil filings, and the mid-1990s, when such

cases made up roughly 16 percent of filings. See

Engstrom, Supplying, supra; Joe Palazzolo, We Won’t

See You in Court: The Era of Tort Lawsuits Is Waning,

WALL

ST.

(July

24,

2017),

https://www.wsj.com/articles/we-wont-see-you-incourt-the-era-of-tort-lawsuits-is-waning-1500930572

(reviewing a wide range of empirical research). The

reduction in medical malpractice claims has been

particularly sharp. See Myungho Paik et al., The

Receding Tide of Medical Malpractice Litigation: Part

1—National Trends, 10 J. EMPIRICAL LEGAL STUD.

612, 613 (2013) (reporting a 57 percent nationwide

drop in malpractice claims paid out by doctors or their

insurers between 1992 and 2012, and a 34 percent

decline in malpractice lawsuits from 2001 to 2010).

The reasons for tort’s disappearance from federal

and state court dockets are many. Tort reform efforts

have surely played a role. See generally STEPHEN

DANIELS & JOANNE MARTIN, TORT REFORM,

PLAINTIFFS’ LAWYERS, AND ACCESS TO JUSTICE (2015).

So has the surge in binding arbitration. See Elizabeth

G. Thornburg, Contracting with Tortfeasors:

Mandatory Arbitration Clauses and Personal Injury

Claims, 67 LAW & CONTEMP. PROBS. 253 (2004).

Whatever the cause, and as Justice Gorsuch no doubt

knows, the majority of civil cases filed in state courts

are not torts but instead contract actions, primarily

debt collections, evictions, and home foreclosure cases

that pit an institutional plaintiff, typically with a

lawyer, against an individual defendant without one.

See Rebecca Love Kourlis & Neil M. Gorsuch, Legal

Advice is Often Unaffordable. Here’s How More People

Can Get Help, USA TODAY (Sept. 17, 2020),

https://www.usatoday.com/story/opinion/2020/09/17/l

awyers-expensive-competition-innovation-increaseaccess-gorsuch-column/5817467002/. Neck and neck

just four decades ago, contract cases now dominate

state court dockets, with torts merely a footnote. See

Nora Freeman Engstrom & David Freeman

Engstrom, The Making of the A2J Crisis, 75 STAN. L.

REV. ONLINE 146, 149 (2024) (reviewing data).8

In short, clear thinking and rigorous data put the lie

to the assertions of Petitioners and their amici about

party costs and court burdens. Even if the Court was

inclined to elevate finality, efficiency and economy

over jurisdiction and Congress’s considered policy

judgment, Petitioners’ finality-despite-error approach

heaps all of the error costs on the wrong party. The

Fifth Circuit’s jurisdiction-respecting rule, in

contrast, spreads them fairly without so much as

causing a ripple on the federal docket.

Yet another empirical claim made by Petitioners’ amici—

about allegedly excessive jury verdicts—fares no better and

merits only a brief response. See Atl. Leg. Found. Br. 5, 8-10;

Prod. Liab. Advisory Council Br. 17. Not only is the unsupported

empirical assertion dubious, Petitioners’ amici do not and cannot

explain how the distribution of jury verdicts between federal and

state courts is relevant to this case. This Court should condemn,

in the strongest terms, any implication that it is appropriate for

federal courts to interpret Congress’s jurisdictional directives by

reference to merits outcomes in one court system compared to

another. See Tafflin v. Levitt, 493 U.S. 455, 465 (1990)

(emphasizing the Court’s “full faith in the ability of state courts”

to adjudicate claims and warning that assuming otherwise would

“denigrate the respect accorded coequal sovereigns”).

IV.

The Fifth Circuit’s jurisdictionrespecting rule is more faithful to

federalism values.

Petitioners’ finality-despite-error approach raises a

final and substantial risk of harm: By supercharging

Caterpillar’s emphasis on judicial economy above all

else, Petitioners’ approach would undermine

federalism values by frustrating the considered policy

choices of the many states. In stark contrast, the Fifth

Circuit’s jurisdiction-respecting rule would do no such

injury to state sovereignty interests.

The injury to state sovereignty under Petitioners’

proposed finality-despite-error approach is two-fold.

First, whenever a federal court exercises judicial

power without first establishing its jurisdiction, the

federal court intrudes upon the sovereign territory of

the state in which it sits. “[O]ur Constitution

establishes a system of dual sovereignty” that divides

power “between the States and the Federal

Government.” Gregory v. Ashcroft, 501 U.S. 452, 457

(1991). Recognizing that state sovereignty is an

important safeguard of liberty, this Court has long

presumed that Congress legislates with the aim of

“preserv[ing] ‘the constitutional balance between the

National Government and the states.’” Bond v. United

States, 572 U.S. 844, 862 (2014) (quoting Bond v.

United States, 564 U.S. 211, 222 (2011)). Indeed, to

displace that presumption, Congress must use

“exceedingly clear language.” U.S. Forest Serv. v.

Cowpasture River Pres. Ass’n, 590 U.S. 604, 622

(2020).

This federalism canon takes on special salience

when interpreting statutes that confer jurisdiction.

“Out of respect for state courts, this Court has time

and again declined to construe federal jurisdictional

statutes more expansively than their language, most

fairly read, requires.” Merrill Lynch, Pierce, Fenner &

Smith Inc. v. Manning, 578 U.S. 374, 389 (2016); see

also Romero v. Int’l Terminal Operating Co., 358 U.S.

354, 380 (1959) (“Due regard for the rightful

independence of state governments, which should

actuate federal courts, requires that they scrupulously

confine their own jurisdiction to the precise limits

which the statute has defined.”) (quoting Healy v.

Ratta, 292 U.S. 263, 270 (1934)). That interpretive

stance is warranted because whenever a federal court

exercises judicial power without first establishing its

jurisdiction, “the federal tribunal poaches upon the

territory of a coordinate judicial system, and its

decisions, opinions, and orders are of no effect.”

Howery v. Allstate Ins. Co., 243 F.3d 912, 916 n.6 (5th

Cir. 2001).

The intrusion on sovereignty is particularly sharp

in the case of removal, which wrests from a state court

a legal proceeding that has already commenced, and

does so without any say by the state court. See 28

U.S.C. § 1446(d) (supplying procedures for a “notice of

removal,” not a motion); Shamrock Oil & Gas Corp. v.

Sheets, 313 U.S. 100, 108-09 (1941) (noting that the

policy underlying removal statutes “is one calling for

the strict construction of such legislation”).

A district court’s jurisdiction-less exercise of

judicial power also thwarts a state’s control over the

elaboration of its own law. This Court has held that

the “proper construction of state statutes” is “a matter

primarily for determination by the local courts.”

Gilchrist v. Interborough Rapid Transit Co., 279 U.S.

159, 208 (1929); Harman v. Forssenius, 380 U.S. 528,

535 (1965) (state courts are the ultimate “expositors of

state law”) (citation omitted). Federal courts’

“pronouncements on the content of state law

inherently involve a significant intrusion on the

prerogative of the state courts to control that

development.” Lexington Ins. Co. v. Rugg & Knopp,

Inc., 165 F.3d 1087, 1092 (7th Cir. 1999) (citation

omitted).

Even where jurisdiction is proper, a federal court’s

prediction as to how state courts would resolve an

issue can burden the states. They often amount to no

more than “Erie guesses,” as the former Chief Judge

of the Third Circuit has put it. See Dolores K. Sloviter,

A Federal Judge Views Diversity Jurisdiction Through

the Lens of Federalism, 78 VA. L. REV. 1671, 1679

(1992). And federal courts often guess wrong. See id.

at 1677-78 (cataloging cases); John R. Brown,

Certification–Federalism in Action, 7 CUMB. L. REV.

455, 457 (1977) (same). These incorrect predictions

“inequitably affect the losing federal litigant,” sow

confusion, and can even mislead lower courts, who

have “shown a preference for citing federal decisions

on state law instead of state decisions.” See Sloviter,

78 VA. L. REV. at 1681-82.

This case proves the point. The district court went

astray in its fraudulent joinder analysis because it

relied on a series of federal district court decisions

predicting how Texas law would treat claims against

product sellers, instead of focusing on the

authoritative Texas Supreme Court decisions and

Texas state-court opinions interpreting the relevant

statute, as the Fifth Circuit did. See Pet. App. 19a-20a.

By retroactively excusing jurisdictional error,

Petitioners’ approach entrenches Erie guessing and

invites more mispredictions that burden state courts

with potential preclusion tied to non-authoritative

federal readings of state law. By contrast, and as

noted in Part II, the Fifth Circuit’s jurisdictionrespecting rule creates salutary incentives for district

courts to be certain of their jurisdiction before

allowing a case to proceed.

Second, a federal court’s erroneous exercise of

jurisdiction can intrude on state sovereignty by

frustrating the states’ considered policy judgments.

Many states, including Texas, have made a deliberate

policy choice to hold nonmanufacturing sellers liable

in strict product liability actions, whether generally or

in specified circumstances. See Restatement (Third) of

Torts: Product Liability § 1, cmt. e reporter’s note

(1998) (explaining that “any seller in the chain of

distribution (manufacturer, wholesaler, retailer) is

liable for the sale of a defective product that was a

cause of the plaintiff's injury” and that “[s]upport for

the rule is widespread”); id. (noting that only a few

“states bar a strict liability action against

nonmanufacturer sellers”); Restatement (Second) of

Torts § 402A (1965) (similar); TEX. CIV. PRAC. & REM.

CODE § 82.003(a) (imposing liability on “[a] seller that

did not manufacture a product” where, inter alia, the

nonmanufacturing defendant made an “express

factual representation about an aspect of the product”

(as was alleged in this case), the nonmanufacturing

defendant “participated in the design of the product,”

the manufacturer is insolvent, or the manufacturer is

not subject to the court’s jurisdiction).9

The same is true in admiralty. See, e.g., THOMAS J.

SCHOENBAUM, ADMIRALTY & MARITIME LAW § 5.13 (6th ed. 2019)

(citing Restatement (Second) of Torts § 402A); Vickers v. Chiles

Drilling Co., 822 F.2d 535, 538 (5th Cir. 1987) (applying

Restatement (Second) of Torts § 402A’s liability for “sellers” in

maritime products liability claim).

These frameworks reflect a sensible policy

judgment that sellers in the chain of distribution

(including the manufacturer, distributor, wholesaler,

and retailer) should, under at least some

circumstances, be held liable for the sale of a defective

product in order to spread loss and increase the

likelihood of plaintiffs’ recovery. See, e.g., Bylsma v.

R.C. Willey, 416 P.3d 595, 606 (Utah 2017) (explaining

that liability for nonmanufacturing sellers serves the

“policy goal” of ensuring “that the injured plaintiff has

a party from whom she can recover”); Zamora v. Mobil

Corp., 104 Wash. 2d 199, 206 (1985) (noting that “[t]he

primary policy justification” for extending strict

liability to sellers is “provision of the ‘maximum of

protection’ to the consumer”).

Petitioners’ proposed rule would intrude upon these

considered policy judgments by preventing plaintiffs

in Respondents’ position from pursuing both

manufacturers and sellers in the chain of distribution

in a single action. If adopted, the rule would force

future plaintiffs to bear the cost and burden of filing a

second lawsuit against a wrongly dismissed defendant

while also grappling with preclusion arguments based

on a federal court’s ruling that should never have been

rendered. Some dogged plaintiffs may overcome these

barriers. Many will not. In either case, by

retroactively excusing a district court’s jurisdictional

error and compelling piecemeal proceedings,

Petitioners’ proposed rule would encumber the state’s

decision regarding how liability is assessed and where

it is assigned. In sharp contrast, the Fifth Circuit’s

jurisdiction-respecting approach, and its vacatur

order in the case below, ensures that plaintiffs in

Respondents’ position retain the ability to seek full

relief against all potentially liable parties in

accordance with state law.

The intrusion on state sovereignty can be no less

acute in cases asserting plain-vanilla (non-product)

negligence claims, especially where states have

adopted several liability. Some states continue to

impose joint-and-several liability on tortfeasors, thus

permitting a plaintiff to recover the full amount of

damages from any culpable defendant, regardless of

that defendant’s share of fault. See, e.g., Holcim (US),

Inc. v. Ohio Cas. Ins. Co., 38 So. 3d 722, 729 (Ala.

2009); Shantigar Found. v. Bear Mountain Builders,

804 N.E.2d 324, 332 (Mass. 2004); VA. CODE ANN.

§ 8.01-443. However, many other states, including

Texas, have abrogated joint-and-several liability by

statute and replaced it with a version of several

liability, which typically requires a court to perform a

comprehensive allocation of damages and fault across

all responsible parties.10

Petitioners’ finality-despite-error approach risks

upending these latter frameworks. By forcing

plaintiffs to re-file against wrongly dismissed

10 Roughly a dozen states hold a solvent defendant severally

liable only for his or her percentage of fault. Another dozen states

(including Texas) have abolished joint and several liability only

for cases in which the defendant is at fault below a specified

threshold, usually 50 percent. See TEX. CIV. PRAC. & REM. CODE

§ 33.003(a). A few states, including California, have retained

joint and several liability for economic damages but not for noneconomic damages. A handful of states have abolished joint and

several liability when the plaintiff is partially at fault but have

retained it when the plaintiff is not at fault. Finally, a handful of

states have retained joint and several liability but reallocate the

percentage share of any insolvent defendant to the other parties.

See MARC A. FRANKLIN, ROBERT L. RABIN, MICHAEL D. GREEN,

MARK A. GEISTFELD, & NORA FREEMAN ENGSTROM, T ORT LAW

AND ALTERNATIVES: CASES AND MATERIALS 462 (11th ed. 2021).

defendants in separate proceedings, Petitioners’

approach invites fragmented litigation that

undermines the accurate and efficient assignment of

fault among the parties and risks inconsistent

judgments.

In Texas, for instance, a federal court’s allocation of

liability to a wrongly dismissed defendant would enjoy

no preclusive effect in state court. See, e.g., TEX. CIV.

PRAC. & REM. CODE § 33.004(i)(2) (a finding of fault

against a non-party tortfeasor “may not be used in any

other proceeding, on the basis of res judicata,

collateral estoppel, or any other legal theory, to

impose liability on the person”). With two courts

independently assigning fault to the defendants, a

plaintiff could be left with a finding of 20 percent

liability as to one defendant and 30 percent as to the

other or, conversely, 70 percent liability as to one

defendant and 80 percent as to the other. The very

real threat of inconsistent judgments, with some

plaintiffs not made whole and others enjoying a clear

windfall, is a high price to pay to salvage a federal

district court’s erroneous jurisdictional ruling.

Petitioners’ approach would work an especially

serious intrusion on state sovereignty in jurisdictions

that take the opposite approach—where an allocation

of fault in a single action is treated as the final

adjudication of responsibility for the injury and has

preclusive effect. Indiana provides an illustrative

example. Under the State’s Comparative Fault Act,

the trier of fact must determine “the percentage of

fault of the claimant, of the defendant, and of any

person who is a nonparty.” IND. CODE § 34-51-27(b)(1). The Indiana Supreme Court has explained

that this single action “necessarily adjudicates all the

liability and damages for the plaintiff’s alleged injury”

and that issue preclusion bars re-adjudication of this

determination in subsequent litigation against other

tortfeasors. Davidson v. State, 211 N.E.3d 914, 922-23

(Ind. 2023). Under Petitioners’ rule, if a federal court

wrongly retains a diversity case and allocates fault to

the non-diverse party, that allocation will bind the

plaintiff in later state court proceedings—effectively

stripping the state court of its prerogative to

adjudicate the core state-law question of who is liable

for the injury sustained by one of the state’s own

citizens.

In short, Petitioners’ proposed approach, by

tolerating a district court’s error and forcing plaintiffs

in Respondents’ shoes to pursue defendants

piecemeal, in multiple courts, will intrude upon state

sovereignty and frustrate the considered policy

judgment of numerous states that several liability is

the best way to achieve an optimal allocation of fault

among responsible parties and an optimal level of care

in protecting the health and safety of their citizens.

CONCLUSION

For the foregoing reasons, the Court should affirm

the Fifth Circuit’s decision.

Respectfully submitted,

DAVID FREEMAN ENGSTROM

Lead Amicus Curiae and

Counsel of Record

Stanford Law School

559 Nathan Abbott Way

Stanford, CA 94305-8610

(650) 721-5859

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August 18, 2025

APPENDIX

TABLE OF CONTENTS

Appendix A List of Appeals Court Decisions

Reversing Remand Denials for

Fraudulent Joinder After

Judgment ...............................................1a

APPENDIX A

List of Appeals Court Decisions Reversing

Remand Denials for Fraudulent Joinder After

Judgment

Based on a comprehensive search and analysis of

cases in Westlaw, this appendix lists appellate

decisions since 1990 in which a district court

erroneously denied a motion to remand on the basis of

fraudulent joinder, the case against the remaining

diverse defendant proceeded to judgment, and the

court of appeals reversed the jurisdictional ruling and

held that complete diversity was lacking.

The table below also includes how the district court

judgment came about: whether appeal followed a

motion to dismiss (MTD), summary judgment (SJ), a

motion to compel arbitration (Arb.), a trial, or some

other disposition.

No.

Case

1 Bounds v. Pine

Belt

Mental

Health

Care

Resources

2 Bayer v. Snap-on

Tools Corp.

Citation

593

F.3d

209 (2d Cir.

2010)

Trial

913

F.2d

108 (3d Cir.

1990)

Batoff v. State 977

F.2d

Farm Ins. Co.

848 (3d Cir.

1992)

Fister v. Allstate 166

F.3d

Life Ins. Co.

332 (4th Cir.

1998)

MTD

Mayes

Rapoport

v. 198

F.3d

457 (4th Cir.

1999)

Baltimore Cnty. 238

Fed.

Cigna Appx. 914

Healthcare

(4th

Cir.

2007)

Jones v. Wells 671

Fed.

Fargo Co.

Appx. 153

(4th

Cir.

2016)

Brewer v. UNUM 95 F.3d 50

Life Ins. Co. of (5th

Cir.

America

1996)

Valdes v. Wal- 158

F.3d

Mart Stores, Inc. 584 (5th Cir.

1998)

Cobb v. Delta

186

F.3d

Exports, Inc.

675 (5th Cir.

1999)

Riley

F.A. 46

Fed.

Richard

& Appx. 732

Assocs., Inc.

(5th

Cir.

2002)

Travis v. Irby

326

F.3d

644 (5th Cir.

2003)

Collins ex rel. 343

F.3d

Collins

v. 765 (5th Cir.

American Home 2003)

Prods. Corp.

Smallwood

v. 385

F.3d

Illinois Cent. R.. 568 (5th Cir.

Co.

2004)

(en

MTD

McKee v. Kansas

City Southern Ry.

Co.

De La Hoya v.

Coldwell Banker

Mexico, Inc.

Vargas v. Stone

Container Corp.

Salazar

Allstate

Texas

Lloyd's, Inc.

Gasch v. Hartford

Accident

Indem. Co.

Smith v. Petsmart

Inc.

Elam v. Kansas

City. S. Ry. Co.

African Methodist

Episcopal Church

v. Lucien

Davidson

Georgia-Pacific,

LLC

Cumpian v. Alcoa

World Alumina,

LLC

banc)

358

F.3d

329 (5th Cir.

2004)

125

Fed.

Appx. 533

(5th

Cir.

2005)

144

Fed.

Appx. 365

(5th

Cir.

2005)

455

F.3d

571 (5th Cir.

2006)

491

F.3d

278 (5th Cir.

2007)

278

Fed.

Appx. 377

(5th

Cir.

2008)

635

F.3d

796 (5th Cir.

2011)

756

F.3d

788 (5th Cir.

2014)

819

F.3d

758 (5th Cir.

2016)

910

F.3d

216 (5th Cir.

2018)

Trial

MTD

Williams

Homeland

Ins.

Co. of New York

Wilson v. Kemper

Corp. Servs., Inc.

Walker v. Philip

Morris USA, Inc.

Schur v. L.A.

Weight Loss Ctrs.,

Inc.

Wilkinson

Shackelford

Junk v. Terminix

Intern. Co.

In re Prempro

Prods.

Liab.

Litig.

Cal. Dump Truck

Owners Ass'n v.

Cummins Engine

Co., Inc.

Evans v. Mutual

of Omaha Ins. Co.

Hunter v. Philip

Morris USA

Woods

Ross

18 F.4th 806

(5th

Cir.

2021)

134

F.4th

339 (5th Cir.

2025)

443

Fed.

Appx. 946

(6th

Cir.

2011)

577

F.3d

752 (7th Cir.

2009)

478

F.3d

957 (8th Cir.

2007)

628

F.3d

439 (8th Cir.

2010)

591

F.3d

613 (8th Cir.

2010)

Fed.

Appx. 727

(9th

Cir.

2001)

134

Fed.

Appx. 194

(9th

Cir.

2005)

582

F.3d

1039

(9th

Cir. 2009)

833

Fed.

MTD

Arb.

MTD

Rule 41(a)

MTD

Rule 12(c)

MTD

Dress

Inc.

for

Less, Appx. 754

(10th

Cir.

2021)

Henderson

v. 454

F.3d

MTD

Washington Nat'l 1278 (11th

Ins. Co.

Cir. 2006)

Florence

v. 484

F.3d MTD/SJ (in

Crescent

Res., 1293 (11th alternative)

LLC

Cir. 2007)

Stillwell

v. 663

F.3d

Allstate Ins. Co.

1329 (11th

Cir. 2011)

SFM Holdings, 465

Fed.

MTD

Ltd. v. Fisher

Appx. 820

(11th

Cir.

2012)

Ullah v. BAC 538

Fed.

MTD

Home

Loans Appx. 844

Servicing LP

(11th

Cir.

2013)

Kimball v. Better 613

Fed.

MTD

Bus. Bureau of W. Appx. 821

Fla.

(11th

Cir.

2015)

Dever v. Family 755

Fed.

Dollar Stores of Appx. 866

Georgia, LLC

(11th

Cir.

2018)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.