                                                                            [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                         ________________________________

                                    No. 97-6078
                         ________________________________

                          D.C. Docket No. CV-95-AR-1314-M


ANGELA SUZANNE INGRAM, individually and
as Custodial Parent of Zachary James Glass,
a deceased minor; THOMAS H. TRAMMELL,

                                                Plaintiffs-Appellants,

      versus

CSX TRANSPORTATION, INC., a
corporation; ALBERTVILLE, CITY OF,

                                                Defendants-Appellees.

_________________________________________________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
_________________________________________________________________

                                     (July 16, 1998)

Before HATCHETT, Chief Judge, and FAY and FARRIS*, Senior Circuit Judges.

HATCHETT, Chief Judge:

________________________________
*
 Honorable Jerome Farris, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
       Angela Ingram suffered injuries and her ten-year-old son, Zachary Glass, died

when the car Ingram was driving collided with a train at a railroad crossing in Albertville,

Alabama. Ingram, individually and on behalf of Zachary, filed the present state law

negligence action against the City of Albertville (the City), which owned and operated the

railroad crossing, and CSX Transportation, Inc. (CSX), which owned and operated the

train and railroad tracks.1 Ingram’s complaint alleged that the warning devices at the

railroad crossing were inadequate. The district court granted summary judgment in favor

of the City and CSX, finding the Federal Railroad Safety Act of 1970 (FRSA), as

amended, 49 U.S.C.A. §§ 20101 et seq. (West 1997 & Supp. 1998), and accompanying

federal grade crossing regulations, 23 C.F.R. §§ 646.214(b)(3) and (4) (1997) preempted

the claim. We affirm.

                                   I. BACKGROUND

       The accident giving rise to this lawsuit occurred shortly after 5 p.m. on January 10,

1995, as Ingram, traveling down McKinney Avenue with Zachary, her oldest son, in the

front passenger seat, was on her way to a child day care center to pick up her youngest

son. Although Ingram had often taken this route and knew that it required her to cross

CSX’s railroad tracks, she had never before seen a train at the crossing.

       Advance warning signs, such as no-passing zone signs and crossbucks, preceded

the McKinney crossing on each approach. These passive warning devices had been


       1
         Ingram’s father, Thomas Trammell, owned the car that Ingram was driving and is
also a plaintiff-appellant in this lawsuit.

                                             2
installed pursuant to appropriations of funds from the Federal Highway Administration.

No active warning devices, such as flashing lights and gates, preceded the intersection.

       Before reaching the crossing, Ingram slowed down to 25 miles per hour, but does

not recall whether she stopped. She looked both ways and saw no oncoming train. A

building and fence to her right may have obstructed her view, as well as cars traveling on

Railroad Avenue, which runs perpendicular to McKinney Avenue and parallel to the

railroad tracks. As Ingram proceeded across the tracks, a CSX train struck her car.

       In April 1995, Ingram, an Alabama resident, filed this lawsuit in the Circuit Court

of Marshall County, Alabama against CSX, a corporation incorporated under the laws of

Virginia with its principal place of business in Florida. In May 1995, CSX removed the

case to the United States District Court for the Northern District of Alabama, asserting

diversity of citizenship as the basis for federal jurisdiction. Several months later, Ingram

moved to amend her complaint to add the City as an additional defendant. The district

court granted her motion.

       In October 1996, the City and CSX filed separate motions for summary judgment.

The district court granted these motions, holding that FRSA preempted Ingram’s

inadequate signalization claim because federal funds had “materially participated” in the

installation of the warning devices at the McKinney crossing.

                     II. ISSUES AND STANDARDS OF REVIEW

       We address two issues in this appeal. The first is whether the addition of the City,

a nondiverse defendant, destroyed federal subject matter jurisdiction and, if so, whether

                                             3
this court may dismiss the City in order to retroactively restore diversity of citizenship.

We review subject matter jurisdictional issues de novo. Broughton v. Florida Int’l

Underwriters, Inc., 139 F.3d 861, 863 (11th Cir. 1998).

       After resolving the jurisdictional question, the second issue we consider is whether

the district court erred in granting summary judgment in favor of the appellees on federal

preemption grounds. This court reviews the district court’s grant of summary judgment

de novo, applying the same legal standard that the district court employed in the first

instance. Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 918-19 (11th Cir. 1993).

                                    III. DISCUSSION

A. Jurisdiction

       Ingram first raised the issue of whether federal subject matter jurisdiction exists at

oral argument. “Questions of subject matter jurisdiction may be raised . . . at any time

during the pendency of the proceedings.” United States v. Ayarza-Garcia, 819 F.2d 1043,

1048 (11th Cir.), cert. denied, 484 U.S. 969 (1987). Indeed, we are “bound to ascertain

whether we possess . . . subject-matter jurisdiction whether it is challenged by the

litigants or not[.]” Escobedo v. Estelle, 655 F.2d 613, 614 (5th Cir, Unit A 1981). Thus,

although “we normally will not address issues raised for the first time at oral argument,

‘[a]ny time doubt arises as to the existence of federal jurisdiction, we are obliged to

address the issue before proceeding further.’” Rice v. Ford Motor Co., 88 F.3d 914, 917

n.5 (11th Cir. 1996) (quoting Atlanta Gas Light Co. v. Aetna Cas. and Sur. Co., 68 F.3d



                                              4
409, 414 (11th Cir.1995)). After oral argument, the parties submitted supplemental briefs

on the jurisdictional issue.

       This case involves no federal question. Jurisdiction therefore depends upon

diversity of citizenship. It is axiomatic that lack of complete diversity between the parties

deprives federal courts of jurisdiction over a lawsuit. Strawbridge v. Curtiss, 7 U.S. (3

Cranch) 267 (1806). At the time CSX removed this case to federal district court,

complete diversity existed–Ingram is an Alabama resident and CSX is incorporated in

Virginia and maintains its principal place of business in Florida. After removal, however,

Ingram moved to amend her complaint to add the City as an additional defendant. The

district court granted the motion and entered an order stating that it had done so “with the

EXPRESS UNDERSTANDING that the addition of a non-diverse defendant [would] not

destroy [the] court’s diversity jurisdiction which [had] already attached.”

       The appellees argue that the district court’s diversity jurisdiction was determined

at the time CSX filed its notice of removal. The appellees rely on the Supreme Court’s

decision in Freeport-McMoRan, Inc. v. K N Energy, Inc., which held that “[d]iversity

jurisdiction, once established, is not defeated by the addition of a nondiverse

[dispensable] party to the action.” 498 U.S. 426, 428 (1991).2 In Freeport, a gas seller



       2
         It is undisputed that, as an alleged joint tortfeasor, the City is a “dispensable”
party. See Temple v. Synthes Corp., Ltd., 498 U.S. 5, 7 (1990) (citing Advisory
Committee Notes to Fed. R. Civ. P. 19(a), which state that “a tortfeasor with the usual
‘joint-and-several’ liability is merely a permissive party to an action against another with
like liability”).
                                             5
brought a breach of contract action against a buyer. The seller then assigned its interest in

the contract and substituted the nondiverse assignee as a plaintiff pursuant to Fed. R. Civ.

P. 25(c). In a per curiam opinion, the Supreme Court held that “diversity of citizenship is

assessed at the time the action is filed[,]” and that “if jurisdiction exists at [that] time . . .

such jurisdiction may not be divested by subsequent events.” Freeport, 498 U.S. at 428.

The court rejected the opposite rule, which it reasoned could “have the effect of deterring

normal business transactions during the pendency of what might be lengthy litigation.”

498 U.S. at 428. The appellees assert that, under Freeport, federal diversity jurisdiction

attached at the time of removal and was not destroyed when the district court added the

City as a defendant. We disagree.

       CSX and the City construe Freeport’s holding too broadly. Freeport does not stand

for the proposition that all additions of nondiverse parties are permissible as long as

complete diversity existed at the time of commencement of the lawsuit. Instead, the

holding in Freeport relies upon the assignee’s having been substituted as a plaintiff under

Fed. R. Civ. P. 25(c). In this case, the City’s addition was unrelated to rule 25. As a

result, we find Freeport to be inapplicable. When the district court granted Ingram’s

motion to add the City as a defendant, complete diversity no longer existed between the

parties, thereby destroying subject matter jurisdiction.

       Although Ingram styled her motion to add the City as a motion to amend her

complaint pursuant to Fed. R. Civ. P. 15(a), this amendment amounted to a joinder,

pursuant to Fed. R. Civ. P. 20. We presume that Ingram sought to add the City because

                                                 6
her alleged right to relief against it arose out of the same transaction or occurrence as her

alleged right to relief against CSX, and because questions of law or fact common to both

defendants were likely to arise in the action. See Fed. R. Civ. P. 20(a).3 Thus, in

determining whether to grant Ingram’s motion, the district court should have considered

28 U.S.C.A. § 1447(e), which provides: “If after removal the plaintiff seeks to join

additional defendants whose joinder would destroy subject matter jurisdiction, the court

may deny joinder, or permit joinder and remand the action to the State court.” 28

U.S.C.A. § 1447(e) (West 1994).

       The district court had no discretion to add the City as a defendant, retain

jurisdiction and decide the case on the merits. Indeed, section 1447(e)’s legislative

history indicates that Congress rejected a proposal that would have allowed district courts

to join certain nondiverse parties and still decide the merits of the dispute. H.R. Rep. No.

889, 100th Cong., 2d Sess. 72-73 (1988), reprinted in 1988 U.S.C.C.A.N. 5982, 6033-34

(indicating that the proposal was rejected because it “would [have] provide[d] a small

enlargement of diversity jurisdiction”); see also David D. Siegel, Commentary on 1988

Revision of Section 1447, in 28 U.S.C.A. § 1447 (West 1994). Because section 1447(e)

was applicable here, the district court was left with only two options: (1) deny joinder; or

(2) permit joinder and remand Ingram’s case to state court. The district court chose to




       3
         Ingram’s supplemental brief assumes, and the appellees do not seem to contest,
that the City’s addition may be construed as a joinder.
                                              7
permit the diversity-destroying joinder and, as a result, it should have remanded this

action to Alabama circuit court.

       Ingram urges this court to reverse the summary judgment ruling and remand to the

district court with directions to remand this case to Alabama circuit court. We find this

course of action unnecessary. In Newman-Green, Inc. v. Alfonso-Larrain, 490 U.S. 826

(1989), the Supreme Court held that federal courts of appeals have the authority–like that

given to the district courts in Fed. R. Civ. P. 21–to dismiss dispensable, nondiverse

parties to cure defects in diversity jurisdiction.4 Ingram argues that dismissing the City in

this case would be inappropriate for two reasons. First, Ingram asserts that this court is as

limited in its options as the district court was once it permitted the City to be joined–the

district court’s only option under section 1447(e) was to remand the case to state court.

Likewise, Ingram claims, section 1447(e) leaves this court with no alternative but to

direct the district court to remand this case to state court. Newman-Green’s broad

language, however, belies Ingram’s contention that the district court’s joinder ruling

absolutely deprives this court of any discretion to retroactively restore subject matter

jurisdiction. See, e.g., Casas Office Machs., Inc. v. Mita Copystar Amer., Inc., 42 F.3d

668, 677-78 (1st Cir. 1994) (citing Newman-Green and dismissing dispensable diversity-


       4
           In relevant part, Fed. R. Civ. P. 21 provides as follows:

                Misjoinder of parties is not ground for dismissal of an action.
                Parties may be dropped or added by order of the court on motion
                of any party or of its own initiative at any stage of the action and
                on such terms as are just.
                                                 8
spoiling defendants who were added as parties to the lawsuit after the case was removed

to district court).

       Second, Ingram emphasizes the Supreme Court’s qualifying language in Newman-

Green, i.e., that appellate courts’ authority to dismiss dispensable nondiverse parties

“should be exercised sparingly” and that the appellate court “should carefully consider

whether the dismissal . . . will prejudice any of the parties in the litigation.” Newman-

Green, 490 U.S. at 837-38. Ingram claims that she will be prejudiced if we exercise our

dismissal power here because the statute of limitations has expired on any claim she may

have had against the City. This consideration might be persuasive where a litigant raises

the jurisdictional issue at an earlier stage in the proceedings. Ingram, however, waited

until her oral argument presentation on appeal–long after the district court’s adverse

ruling on the merits of her case. We decline to reward such delay. We therefore exercise

our authority, pursuant to Newman-Green, to dismiss the City of Albertville, Alabama.

Having retroactively restored complete diversity, we retain subject matter jurisdiction and

reach the merits.

B. Preemption

       Congress enacted FRSA “to promote safety in every area of railroad operations

and reduce railroad-related accidents and incidents.” 49 U.S.C.A. § 20101. In

furtherance of these goals, FRSA gives the Secretary of Transportation the power to

“prescribe regulations and issue orders for every area of railroad safety.” 49 U.S.C.A.

§ 20103(a). FRSA contains an express preemption clause, which provides that the states

                                             9
may “adopt or continue in force a law, regulation, or order related to railroad safety until

the Secretary of Transportation prescribes a regulation or issues an order covering the

subject matter of the State requirement.” 49 U.S.C.A. § 20106.5

       Congress enacted the Highway Safety Act of 1973, 23 U.S.C.A. §§ 101 et seq.

(West 1990 & Supp. 1998), in response to the Secretary’s reports on grade crossing safety

problems. This Act makes federal funds available to the states in order to improve grade

crossings. In return, the states must “conduct and systematically maintain a survey of all

highways to identify those railroad crossings which may require separation, relocation, or

protective devices, and establish and implement a schedule of projects for this purpose.”

23 U.S.C.A. § 130(d). The Secretary, through the Federal Highway Administration

(FHWA), promulgated additional regulations setting out further conditions on the states’



       5
           In its entirety, FRSA’s preemption clause reads as follows:

                Laws, regulations, and orders related to railroad safety shall be
                nationally uniform to the extent practicable. A State may adopt
                or continue in force a law, regulation, or order related to railroad
                safety until the Secretary of Transportation prescribes a
                regulation or issues an order covering the subject matter of the
                State requirement. A State may adopt or continue in force an
                additional or more stringent law, regulation, or order related to
                railroad safety when the law, regulation, or order–
                (1) is necessary to eliminate or reduce an essentially local safety
                hazard;
                (2) is not incompatible with a law, regulation, or order of the
                United States Government; and
                (3) does not unreasonably burden interstate commerce.

49 U.S.C.A. § 20106.
                                                10
use of federal aid to improve grade crossings. At issue in this case are 23 C.F.R.

§§ 646.214(b)(3) and (4) (hereinafter “(b)(3)” or “(b)(4)”).6 These provisions require that

a grade crossing improvement project either include an automatic gate or receive FHWA

approval if federal funds “participate in the installation” of the warning devices. The


       6
           In relevant part, 23 C.F.R. § 646.214(b) reads as follows:

                (b) Grade Crossing Improvements. . . .
                (3)(i) Adequate warning devices, under § 646.214(b)(2) or on
                any project where Federal-aid funds participate in the
                installation of the devices are to include automatic gates with
                flashing light signals when one or more of the following
                conditions exist:
                         (A) Multiple main line railroad tracks.
                         (B) Multiple tracks at or in the vicinity of the crossing
                which may be occupied by a train or locomotive so as to obscure
                the movement of another train approaching the crossing.
                         (C) High Speed train operation combined with limited
                sight distance at either single or multiple track crossings.
                         (D) A combination of high speeds and moderately high
                volumes of highway and railroad traffic.
                         (E) Either a high volume of vehicular traffic, high
                number of train movements, substantial numbers of schoolbuses
                or trucks carrying hazardous materials, unusually restricted sight
                distance, continuing accident occurrences, or any combination
                of these conditions.
                         (F) A diagnostic team recommends them.
                   (ii) In individual cases where a diagnostic team justifies that
                gates are not appropriate, FHWA may find that the above
                requirements are not applicable.
                (4) For crossings where the requirements of § 646.214(b)(3) are
                not applicable, the type of warning device to be installed,
                whether the determination is made by a State regulatory agency,
                State highway agency, and/or the railroad, is subject to the
                approval of FHWA.

23 C.F.R. §§ 646.214(b)(3) and (4).
                                               11
issue presented here is whether these regulatory provisions preempt Ingram’s state law

negligence claim based on inadequate signalization at the McKinney crossing.

       The Supreme Court specifically addressed the preemptive effect of sections (b)(3)

and (b)(4) in CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993). The Court

concluded that these regulatory provisions “displace state and private decision-making

authority by establishing a federal-law requirement that certain protective devices be

installed or federal approval obtained.” 507 U.S. at 670. The Court therefore held that

“when [these regulations] are applicable, state tort law is pre-empted.” 507 U.S. at 670.

The Court in Easterwood found, however, that the petitioner’s state law claims were not

preempted because “the preconditions for the application of either regulation [had not]

been met.” 507 U.S. at 671. Namely, the record in Easterwood did “not establish that

federal funds ‘participate[d] in the installation of the [warning] devices’” at the subject

grade crossing. 507 U.S. at 672.

       In this case, it is undisputed that federal funds participated in the installation of the

passive warning devices at the McKinney crossing. Three other circuit courts have held

that such funding equates to federal approval of the warning devices installed, thereby

triggering federal preemption of a plaintiff’s state law negligence claim based upon

inadequate signalization. See Armijo v. Atchison, Topeka and Santa Fe Ry. Co., 87 F.3d

1188 (10th Cir. 1996); Elrod v. Burlington N. R.R. Co., 68 F.3d 241 (8th Cir. 1995);

Hester v. CSX Transp., Inc., 61 F.3d 382 (5th Cir. 1995), cert. denied, 516 U.S. 1093

(1996). The Eighth Circuit explained that “[f]ederal funding is the touchstone of [FRSA]

                                              12
preemption . . . because it indicates that the warning devices have been deemed adequate

by federal regulators.” Elrod, 68 F.3d at 244. Similarly, the Tenth Circuit reasoned that

“[t]he Secretary of Transportation’s authorization of passive warning devices [is]

tantamount to a determination, pursuant to [section (b)(4)], that only passive, rather than

active, warning devices [are] sufficient[.]” Armijo, 87 F.3d at 1190. Likewise, the Fifth

Circuit held that “[t]he fact that federal funds participated in the installation of the

warning devices legally presupposes that the Secretary approved and authorized that

expenditure, which in turn legally presupposes that the Secretary determined that the

safety devices installed were adequate to their task.” Hester, 61 F.3d at 387.

       Ingram argues, however, that the expenditure of federal funds should not, in and of

itself, trigger federal preemption in this case. She contends that section (b)(3) was not

complied with and, therefore, the railroad should not be permitted to use section (b)(4) to

shield it from liability via the defense of FRSA preemption. Specifically, Ingram asserts

that she presented evidence tending to indicate that the sight distance at the McKinney

crossing was “unusually restricted,” and that unsafe conditions at the McKinney crossing

gave rise to “continuing accident occurrences.” Ingram argues that, given these

circumstances, active warning devices should have been installed pursuant to section

646.214(b)(3)(i)(E), unless a diagnostic team “justifie[d] that [active warning devices

were] not appropriate,” pursuant to section 646.214(b)(3)(ii). Ingram emphasizes that

CSX failed to present any evidence that a diagnostic team ever evaluated the McKinney

crossing to make such a determination regarding the appropriateness of passive warning

                                              13
devices. Thus, under Ingram’s theory, we have no occasion to consider section (b)(4)’s

method for obtaining federal approval, because section (b)(4) only enters into the analysis

“[f]or crossings where the requirements of § 646.214(b)(3) are not applicable.” 23 C.F.R.

§ 646.214(b)(4) (emphasis added).

       Ingram’s position is not without support. The Seventh Circuit in Shots v. CSX

Transp., Inc., 38 F.3d 304 (7th Cir. 1994), held that mere federal financial participation in

a grade crossing upgrade project was insufficient to trigger FRSA preemption unless

some evidence existed that the Secretary of Transportation actually approved of the

specific warning devices installed. The Seventh Circuit declined to presume such

approval from the expenditure of federal funds. At the time of the accident giving rise to

the claim in Shots, the grade crossing was equipped only with reflectorized crossbucks,

which had been installed pursuant to an agreement between the state of Indiana and the

railroad to “upgrade” thousands of the railroad’s crossings to “minimum standards, as

established by the State[.]” 38 F.3d at 306. The Secretary of Transportation approved the

project and provided federal funding without receiving a report from a diagnostic team

regarding the type of warning systems required at each individual crossing. In concluding

that the plaintiff’s claims were not preempted, the Seventh Circuit explained:

              The agreement [between the state and the railroad] does not
              state or imply that the thousands of crossings covered by it
              would be adequately safe if equipped with reflectorized cross-
              bucks. . . . [T]he agreement is explicitly limited to providing the
              “minimum” in passive protections . . . . Minimum is not a
              synonym for optimum, or even adequate. . . . So far as can be
              gathered from the record compiled in the district court, the

                                             14
              agreement was a step on the road to adequate safety rather than
              a determination by the State of Indiana or the federal Secretary
              of Transportation as to what safety devices would be adequate
              at each of the thousands of crossings covered by it.

              Thus we do not think it can be realistically said, to use the
              formulation in Easterwood, that “the Secretary has determined
              the devices to be installed” at these crossing merely because he
              authorized federal funds to bring them up to minimum
              standards, utilizing passive warning devices solely. Indeed, it
              would have been an extraordinary act of irresponsibility for the
              Secretary of Transportation, by approving the agreement, to
              preclude tort liability for the railroad’s failing to have active
              warning devices at any of the thousands of crossings covered by
              the agreement, or otherwise to prevent the state from requiring
              adequate safety devices at the busiest or most dangerous of these
              crossings, when no one in the federal government had made a
              determination that the improvements to be made would bring all
              the crossings up to a level of safety adequate to satisfy federal
              standards.

Shots, 38 F.3d at 308-09.

       We decline to adopt the Seventh Circuit’s approach. Instead, we join the Fifth,

Eighth and Tenth Circuits in holding that the participation of federal funds in a grade

crossing improvement project triggers FRSA preemption of a plaintiff’s inadequate

signalization claim. We recognize that the Secretary of Transportation’s approval of

funds to improve the McKinney crossing was only a portion of a larger project to improve

numerous grade crossings in Alabama. We do not think, however, that this undermines

our conclusion. It is true that the Secretary made no specific administrative finding,

pursuant to section (b)(4), that passive warning devices were sufficient to address

whatever safety hazards may have existed at the McKinney crossing. Such an express


                                             15
finding, however, is not the only way for the Secretary to have “approved” of the safety

devices that were installed. The Secretary’s approval may also be inferred. Thus, in

authorizing the expenditure of federal funds to install the passive devices at the

McKinney crossing, we presume that the Secretary approved of those devices. We think

that this approval eliminates the need to consider whether section (b)(3) conditions

existed. As the Fifth Circuit explained in Hester,

              The regulations direct the Secretary to authorize the expenditure
              of federal funds only on projects that satisfy, inter alia, the
              requirements of federal law, specifically 23 U.S.C. § 109. . . .
              Under that section, “[n]o funds shall be approved for
              expenditure . . . unless proper safety protective devices
              complying with safety standards determined by the Secretary at
              that time as being adequate shall be installed or be in operation
              at any highway and railroad grade crossing . . . .” 23 U.S.C.
              § 109(e)(emphasis added).

61 F.3d at 387 (footnote omitted).

       Contrary to Ingram’s assertion, this court’s decision in Michael v. Norfolk S. Ry.

Co., 74 F.3d 271 (11th Cir. 1996), is inapposite. In Michael, the plaintiff alleged that the

active warning device at the subject crossing, an automatic gate, had been negligently

installed because the gate arm was too short. The Michael court labeled this type of claim

a “negligent design or construction” claim. 74 F.3d at 273. Ingram, however, does not

allege that the actual passive warning devices at the McKinney crossing were negligently

installed or otherwise failed to comply with federal design specifications. Rather, she

contends that the entire passive warning design itself is “defective” because active

warning devices should have been installed. The court in Michael seems to allude to this

                                             16
type of claim and labels it one for “defective design.” 74 F.3d at 273. Citing

Easterwood, the court in Michael observed that “there can be no state law claim against

the railroad for defective design” because “[t]he crossing devices at issue . . . were

federally funded[.]” 74 F.3d at 273. Thus, Michael supports our conclusion that

Ingram’s claim is preempted.

       For the foregoing reasons, we affirm the judgment of the district court.

                                       AFFIRMED.




                                             17
