     Case: 14-30925    Document: 00513470939      Page: 1   Date Filed: 04/19/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                    Fifth Circuit

                                                                          FILED
                                                                       April 19, 2016
                                  No. 14-30925
                                                                       Lyle W. Cayce
                                                                            Clerk

TINA DAVIDSON, Individually and on behalf of William Cleve Davidson;
KATHRYN D. DAVIDSON, Individually and on behalf of William Cleve
Davidson; KRISTEN M. DAVIDSON, Individually and on behalf of William
Cleve Davidson,

             Plaintiffs - Appellants

v.

GEORGIA-PACIFIC, L.L.C.; UNION CARBIDE CORPORATION;
CERTAINTEED CORPORATION; BEAZER EAST, INCORPORATED; J
GRAVES INSULATION COMPANY, INCORPORATED, formerly known as
Graves-Aber Insulation Company, Incorporated; TAYLOR SEIDENBACH,
INCORPORATED, formerly known as Taylor-Seidenbach, Incorporated,

             Defendants - Appellees



                Appeals from the United States District Court
                    for the Western District of Louisiana


Before REAVLEY, PRADO, and COSTA, Circuit Judges.
COSTA, Circuit Judge:
      This asbestos case requires us to once again wade into the thicket of
improper joinder law. 13F CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE
AND PROCEDURE § 3641.1 (3d ed. 2009) (noting that the Fifth Circuit “embraces

a number of district courts that in particular have seen a considerable amount
of removal activity that has raised issues of fraudulent joinder”). It also affords
us an opportunity to decide a question about removal procedure that district
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                                No. 14-30925
courts often face, but that we have not yet confronted: when a district court
refers a motion to remand to a magistrate judge, is that matter a
nondispositive one in which the magistrate has the authority to enter an order
of remand? Or is it a dispositive matter in which the magistrate judge may
only make a recommendation subject to the district court’s de novo review?
                                      I.
      William Davidson was diagnosed with mesothelioma in March 2010.
Two months later, he filed a lawsuit in Louisiana state court against numerous
manufacturer, supplier, and contractor defendants that he contended were
responsible for his exposure to asbestos. Eventually, the case was removed to
federal court. The parties conducted eleven months of discovery, including
depositions of Davidson and his coworkers. Davidson died in October 2011.
Davidson’s estate and family did not substitute as proper plaintiffs. Instead,
a motion to dismiss was filed and granted without prejudice in October 2012.
      Meanwhile, in April 2012, Plaintiffs filed the instant survival and
wrongful death action in Louisiana state court bringing similar claims to those
in the first suit. The new suit did, however, add an allegation that Davidson
was exposed to asbestos-containing insulation while working at Poulan
Chainsaw in Shreveport from 1972 to 1978. All of the defendants in Davidson
II were parties to Davidson I with the exception of the nondiverse Louisiana
Defendants whose joinder is contested in this appeal: J. Graves Insulation
Company, Inc. (Graves) and Taylor-Seidenbach, Inc. (Taylor). Graves and
Taylor, according to Plaintiffs, are contractors that frequently installed
asbestos insulation during the 1970s in northwest Louisiana.
      Defendant Georgia-Pacific timely removed this case on the ground that
the Louisiana citizenship of Graves and Taylor should be ignored because these
Defendants had been improperly joined.        It pointed out that “substantial


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                                 No. 14-30925
discovery was completed” in the first case and that there had been no mention
of either Graves or Taylor during that discovery.
      Plaintiffs sought remand. In support of their motion, Plaintiffs attached
the affidavit of one of their attorneys, who stated, based on her experience that
“to the extent Mr. Davidson was exposed to asbestos insulation at Poulan
Chainsaw, this insulation was more likely than not supplied, installed[,] and
repaired by Graves and Taylor.” Georgia-Pacific and a second defendant,
CertainTeed, opposed the motion to remand, urging the court to pierce the
pleadings and to consider summary-judgment type evidence.
      Both sides supported their positions by quoting Davidson’s testimony,
from two depositions in the first lawsuit, about potential asbestos exposure
while working at Poulan Chainsaw. In the first deposition he testified as
follows:
      Q: Okay. Do you have any reason to believe that you were exposed
      to any asbestos or asbestos-contain[ing] products when you worked
      for Poulan between that 19, you know, 72 or so to 1978 or ’79?

      A: It’s a possibility because being out in the plant a lot and there
      were repairs being done to equipment all the time, some big
      machinery, and, you know, it’s very possible.

In the second deposition, Davidson responded again to questions about
asbestos exposure at Poulan Chainsaw:
      Q: One of the things that you said was that you saw repairs being
      done to machinery out at [Poulan]. Can you describe what
      machinery that was?

      A: Drills. You know, industrial-type drills, presses. I really can’t
      remember beyond that.

      Q: And do you remember any of this machinery being insulated out
      at [Poulan]?

      A: I don’t recall.
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       Q: Do you remember insulated pipe being out at [Poulan]?

       A: I don’t recall.

       Q: Do you ever remember seeing anybody doing any type of
       insulation work out at [Poulan]?

       A: No.

The district court referred the remand motion to a magistrate judge. The
magistrate judge issued an order granting the motion to remand, concluding
that the allegations in the petition were sufficient to survive a Rule 12(b)(6)-
type analysis and that there was not a basis for piercing the pleadings.
       Georgia-Pacific and CertainTeed filed “appeals” of the order. The district
court disagreed with the magistrate’s analysis. After piercing the pleadings,
it concluded that Graves and Taylor had been improperly joined. Based on its
improper joinder finding, the court dismissed Graves and Taylor with
prejudice. After a period of discovery, the remaining Defendants filed a series
of motions that resulted in the dismissal of all claims.
                                              II.
       On appeal, Plaintiffs challenge only the denial of their motion to
remand. 1 Before we reach the merits of that question, we address a procedural
question that a number of other circuits have decided but we have not: does a




       1 Graves and Taylor argue that this court lacks appellate jurisdiction over them
because the Plaintiffs did not appeal the district court’s order dismissing them with prejudice.
In their amended notice of appeal, Plaintiffs specified that they were appealing the order
denying their motion for remand, but failed to specifically mention the dismissals that were
derivative of that ruling. Because Plaintiffs’ success on the remand issue that they have
clearly preserved would mean the district court lacked jurisdiction to enter any dismissals,
we reject this challenge to our appellate jurisdiction.
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                                       No. 14-30925
magistrate judge have authority to enter an order remanding a case to state
court? 2
       In the trial court proceedings, the parties and both judges operated on
the belief that the magistrate judge has that authority. The magistrate judge
did not just recommend that the case be remanded, he entered an Order of
Remand; Georgia-Pacific and CertainTeed filed “appeals” of that ruling; and
the district court treated the magistrate judge’s ruling as one involving a
nondispositive matter that could be set aside only if “clearly erroneous or
contrary to law.” 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a). In contrast,
rulings by a magistrate judge on dispositive matters—motions to dismiss and
for entry of summary judgment being the common examples—are mere
recommendations subject to de novo review when properly challenged by the
losing party. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(3).
       This dichotomy of a magistrate judge’s authority in civil cases referred
by the district court is outlined in the Federal Magistrates Act, 28 U.S.C. § 636,
and seeks to enforce the constitutional limits on non-Article III judges. See 12
CHARLES ALAN WRIGHT ET. AL., FEDERAL PRACTICE AND PROCEDURE § 3068.2
(3d ed. 2014) (“Constitutional concerns explain the statutory distinction
between types of pretrial matters. Motions thought ‘dispositive’ of the action
warrant particularized objection procedures and a higher standard of review
because of the possible constitutional objections that only an article III judge



       2 At least once, this circuit has reviewed a remand ruling from a magistrate judge that
a district court treated as nondispositive. See In re 1994 Exxon Chem. Fire, 558 F.3d 378,
383 (5th Cir. 2009) (noting that the district court affirmed the magistrate judge’s denial of
remand motions in fifteen cases under the “clear error” standard of 28 U.S.C. § 636(b)(1)(A)
that governs rulings by magistrate judges on nondispositive matters). But in that case
neither the parties nor the court raised an issue about the magistrate judge’s authority. See
id. at 381 (listing the sole issue on appeal as whether the district court lacked subject matter
jurisdiction).

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                                       No. 14-30925
may ultimately determine the litigation.” (quotation marks omitted)). The Act
lists the following as dispositive pretrial matters in civil cases in which the
magistrate judge may only issue a recommendation: motions for injunctive
relief, for judgment on the pleadings, for summary judgment, to certify or
decertify a class action, to dismiss for failure to state a claim, and to
involuntarily dismiss a case. 28 U.S.C. § 636(b)(1)(A). Although motions to
remand are not included in this list, every court of appeals to consider the
question has held that they should be treated as dispositive matters in which
only the district court may enter an order. See Flam v. Flam, 788 F.3d 1043,
1046–47 (9th Cir. 2015); Williams v. Beemiller, Inc., 527 F.3d 259, 266 (2d Cir.
2008); Vogel v. U.S. Office Prods. Co., 258 F.3d 509, 517 (6th Cir. 2001); First
Union Mortg. Corp. v. Smith, 229 F.3d 992, 995–96 (10th Cir. 2000); In re U.S.
Healthcare, 159 F.3d 142, 145–46 (3d Cir. 1998). 3
       We agree with the conclusion of our five sister circuits. The duty to avoid
constitutional difficulties when interpreting a statute warrants a narrow
reading of the matters in which a magistrate judge may enter orders without
de novo Article III review. Williams, 527 F.3d at 264–65 (citing Gomez v.
United States, 490 U.S. 858, 863–64 (1989) 4). Allowing magistrate judges to



       3 A number of district courts have held that a motion to remand is a nondispositive
matter. Indeed, “district courts in this circuit have generally adhered to the view that
motions to remand are non[]dispositive pretrial matters and have applied the clearly
erroneous standard of review.” Credeur v. York Claim Serv., 2013 WL 5935477 at *3 (W.D.
La. 2013) (citing cases).
       4 Gomez is useful for its general point that courts interpreting the Federal Magistrates

Act should do so in a manner that avoids constitutional concerns about the exercise of power
by non-Article III judges. 490 U.S. at 864 (noting, in interpreting the Act, the “settled policy
to avoid an interpretation of a federal statute that engenders constitutional issues if a
reasonable alternative interpretation poses no constitutional question”). We do not, however,
read it as two courts of appeals have as a holding that the list of dispositive matters in 28
U.S.C. § 636(b)(1)(A) is not exhaustive. See, e.g., Flam, 788 F.3d at 1046 (citing Gomez for
the proposition that the “Supreme Court has identified some judicial functions as dispositive
notwithstanding the fact that they do not appear in the list”); Williams, 527 F.3d at 265 (also
characterizing Gomez as holding that jury selection in felony trials is dispositive despite not
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                                        No. 14-30925
enter remand orders at a minimum approaches the constitutional line because
“a remand order is dispositive insofar as proceedings in the federal court are
concerned” and thus is “the functional equivalent of an order of dismissal.” See
U.S. Healthcare, 159 F.3d at 145 (noting that the question of subject matter
jurisdiction is “at the core of the exercise of federal judicial power”). Treating
motions to remand as nondispositive would create a situation in which an
Article III judge might never exercise de novo review of a case during its entire
federal lifespan. And although a remand order is a final disposition only of the
jurisdictional question, a merits determination is not a necessary feature of a
“dispositive” matter as the statute labels requests for preliminary injunctions
and class certification as dispositive. 28 U.S.C. § 636(b)(1)(A).
        We note an additional reason, one our sister circuits have not discussed,
for treating rulings on motions to remand as dispositive matters. 5 An order of
remand like the one the magistrate judge issued “is not reviewable on appeal
or otherwise.”      28 U.S.C. § 1447(d).            Yet the statute and rule governing



being in the statute’s list of dispositive matters). The question in Gomez was not dispositive
versus nondispositive, but whether magistrates had any authority to conduct jury selection
in felony cases. 490 U.S. at 860. The relevant statutory language provided that a “magistrate
may be assigned such additional duties as are not inconsistent with the Constitution and
laws of the United States.” Id. at 863 (quoting 28 U.S.C. § 636(b)(3)). In finding that jury
selection in felony cases did not fall within this catch-all provision, the Court noted that if it
were within the scope of a magistrate’s duties, one would expect jury selection to be a
dispositive one enumerated in the statute given that duty’s importance. The absence of the
jury-selection duty from the enumerated list of dispositive matters thus counseled against
including it within the catch-all provision. Id. at 873–74. If anything then, Gomez attaches
significance to the statutory list of dispositive matters. We nonetheless come to the same
conclusion in regard to a magistrate judge’s authority over motions to remand, for the reasons
discussed above, as the courts of appeals that have read Gomez differently than we do.
        5 U.S. Healthcare discussed some of these concerns after holding that the magistrate

judge should not have entered an order of remand. 159 F.3d at 145–47. It did so in
determining whether that order was appealable or the basis for a petition for mandamus on
the ground that the magistrate judge exceeded his authority. See id. (concluding that the
latter avenue offered relief). We conclude that these difficult issues surrounding appellate
review of an order of remand issued by a magistrate judge also inform the initial classification
decision.
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                                       No. 14-30925
magistrate judge rulings on nondispositive matters provides for an appeal to
the district court under the “clearly erroneous or contrary to law” standard.
28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a). Classifying motions to remand
as dispositive matters on which magistrate judges may enter recommendations
but not orders of remand avoids a potential collision between these review
provisions. It also avoids a timing problem that would result even if the
magistrate-specific review provisions govern a magistrate judge’s entry of a
remand order: absent a stay, a remand order sends the case back to state court
and deprives the federal court of jurisdiction that would allow for district court
review. 28 U.S.C. § 1447(c) (noting that the clerk of court should mail order of
remand to state court which “may thereupon proceed with such case”); Dahiya
v. Talmidge Int’l, Ltd., 371 F.3d 207, 208 (5th Cir. 2004) (concluding that
district court’s remand order deprived the court of appeals of further federal
jurisdiction). 6
       We therefore join the uniform view of the courts of appeals that have
considered this question and hold that a motion to remand is a dispositive
matter on which a magistrate judge should enter a recommendation to the
district court subject to de novo review.




       6 Escuadra v. Geovera Specialty Ins. Co., 739 F. Supp. 2d 967 (E.D. Tex. 2010), appears
to recognize both of these problems. It qualified its holding that a motion to remand is
nondispositive by saying that is the case “at least when district-judge review is not
foreclosed.” Id. at 972. It then addressed the practical difficulties of that review by noting
that the local rules in that district require a 20-day waiting period after entry of a remand
order before the clerk of court transmits a case back to state court. Id. at 972 n.3. Of course,
not every district has that local rule. And even operating under such a rule, that 20 days
would only allow the objecting party to file its appeal with the district judge. In most cases,
the district judge would need more time to rule and thus would have to enter a stay. See also
U.S. Healthcare, 159 F.3d at 144 (noting that even with a Local Rule’s 15-day grace period,
the district court “treated the remand as effective immediately” because the case was closed
the day the order of remand was entered, thus precluding district court review). Working
around this problem is not impossible, but its existence informs how we classify a remand
matter.
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                                              III.
       That means we review the district court’s ruling as opposed to acting as
the second layer of review for the magistrate judge’s decision. We review de
novo the district court’s “determination that a party is improperly joined and
[its] denial of a motion for remand.” Kling Realty Co. v. Chevron USA, Inc.,
575 F.3d 510, 513 (5th Cir. 2009). The decision to pierce the pleadings and
consider summary judgment-type evidence is reviewed only for abuse of
discretion. La. ex rel. Caldwell v. Allstate Ins. Co., 536 F.3d 418, 425 (5th Cir.
2008).
       “Improper joinder can be established in two ways: (1) actual fraud in the
pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a
cause of action against the non[]diverse party in state court.” Mumfrey v. CVS
Pharmacy, Inc., 719 F.3d 392, 401 (5th Cir. 2013) (internal quotations and
alteration omitted). 7 Only the second situation is before us. The test “is
whether the defendant has demonstrated that there is no possibility of
recovery by the plaintiff against an in-state defendant, which stated differently
means that there is no reasonable basis for the district court to predict that the
plaintiff might be able to recover against an in-state defendant.” Smallwood
v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc).
       Our en banc opinion in Smallwood sets out the procedure for
determining whether, in the absence of actual fraud, a nondiverse defendant
was improperly joined. See Mumfrey, 719 F.3d at 401. First, a court looks at
the allegations contained in the complaint. See id. If a plaintiff can survive a
Rule 12(b)(6) challenge for failure to state a claim, there is ordinarily no


       7 “The Fifth Circuit adopted the terminology ‘improper joinder,’ . . . instead of the
terminology ‘fraudulent joinder,’ which is ‘a term of art’ used in other circuits to describe the
doctrine that ignores a lack of complete diversity where the plaintiff joins a nondiverse
defendant to avoid federal jurisdiction.” Mumfrey, 719 F.3d at 401 n.14 (internal citation
omitted).
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                                  No. 14-30925
improper joinder. Id. (citing Smallwood, 385 F.3d at 573). When “a complaint
states a claim that satisfies 12(b)(6), but has ‘misstated or omitted discrete
facts that would determine the propriety of joinder . . . the district court may,
in its discretion, pierce the pleadings and conduct a summary inquiry.’” Id.
(quoting Smallwood, 385 F.3d at 573). “[T]he decision regarding the procedure
necessary in a given case must lie within the discretion of the trial court.”
Smallwood, 385 F.3d at 573.
      “The burden of persuasion on those who claim [improper] joinder is a
heavy one.” Travis v. Irby, 326 F.3d 644, 649 (5th Cir. 2003). Accordingly, we
view “all unchallenged factual allegations, including those alleged in the
complaint, in the light most favorable to the plaintiff” and resolve “[a]ny
contested issues of fact and any ambiguities of state law” in the plaintiff’s favor.
Id. Moreover, we must “take into account the ‘status of discovery’ and consider
what opportunity the plaintiff has had to develop its claims against the
non[]diverse defendant.” McKee v. Kan. City S. Ry. Co., 358 F.3d 329, 334 (5th
Cir. 2004) (quoting Travis, 326 F.3d at 649).
      We do not agree with Plaintiffs that the district court abused its
discretion in piercing the pleadings and looking to see if evidence had
developed in the first case “that would preclude [P]laintiff[s’] recovery against
the in-state defendant.” See Smallwood, 385 F.3d at 573–74. In light of the
district court’s discretion in deciding whether to pierce the pleadings, it was
not error to do so here given the unusual procedural posture of this case that
meant there was already a lengthy record at the outset of this second lawsuit.
See Guillory v. PPG Indus., Inc., 434 F.3d 303, 309–11 (5th Cir. 2005) (rejecting
plaintiff’s challenge to court’s decision to pierce the pleadings when neither the
scope and amount of remand-related discovery nor the length of time court took
to consider the evidence was excessive).


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                                       No. 14-30925
       We agree with Plaintiffs, however, that the district court erred in
applying the improper joinder standard to that record. Although a court may
pierce the pleadings and consider summary-judgment type evidence, the
standard for finding improper joinder is not the summary judgment standard
in which an absence in the plaintiff’s proof alone can be fatal. Travis, 326 F.3d
at 650 n.3 (noting that “[o]n a motion for summary judgment, the plaintiff’s
lack of evidence in support of her claims, after a sufficient period of discovery,
could have a different effect” than at the motion to remand stage, where such
lack of evidence is not dispositive). It would make little sense to apply the no-
evidence summary judgment standard at the early stages of a case when
improper joinder usually arises as the plaintiff typically will have had little
opportunity to conduct discovery, hire experts, etc. Rather than a standard in
which no evidence on the plaintiff’s part may be dispositive, “the test for
fraudulent joinder is whether the defendant has demonstrated that there is no
possibility of recovery by the plaintiff against an in-state defendant . . . .” 8
Smallwood, 385 F.3d at 573. The examples of improper joinder based on
“discrete and undisputed facts” outside the pleadings that Smallwood provides
are consistent with this language requiring a defendant to “preclude” the
possibility of recovery: 9 evidence showing that “the in-state doctor defendant


       8  In supplemental briefing, Defendants recognize that they must make an initial
showing. They characterize the improper joinder standard as requiring that “once a
defendant offers evidence of the in-state defendant’s non-liability, the plaintiff must respond
with contrary evidence.”
        9 The improper joinder standard is thus similar to the summary judgment standard

that many courts applied before the Supreme Court’s 1986 summary judgment trilogy. One
of the 1986 cases was, like this one, an asbestos case. The D.C. Circuit denied summary
judgment based on its understanding that the summary judgment standard required “that
the party moving for summary judgment must prove the absence of any genuine issue of
material fact, and that only after the movant has done so must the nonmovant respond with
‘specific facts showing that there is a genuine issue for trial.’” See Patricia M. Wald,
Summary Judgment at Sixty, 76 TEXAS L. REV. 1897, 1911 (1998) (explaining Catrett v.
Johns-Manville Sales Corp., 756 F.2d 181, 184–85 (D.C. Cir. 1985), and summary judgment
practice generally prior to the 1986 trilogy). The Supreme Court reversed the D.C. Circuit,
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                                      No. 14-30925
did not treat the plaintiff,” that “the in-state pharmacist defendant did not fill
a prescription for the plaintiff patient,” that “a party’s residence was not as
alleged, or any other fact that easily can be disproved if not true.” See 385 F.3d
at 573–74 & n.12 (emphasis added) (citing Travis, 326 F.3d at 648–49).
       Travis v. Irby, cited favorably by the en banc Smallwood court, see 385
F.3d at 573, illustrates the difference between the summary judgment and
improper joinder standards.          The railroad defendant in Travis asked the
district court to pierce the pleadings and consider interrogatory responses
submitted by the plaintiff. 326 F.3d at 646, 648–50. The plaintiff’s responses
acknowledged that she did not, at the time, possess facts supporting the
petition’s allegations that the train engineer failed to keep a proper and
reasonable lookout, to take proper precautions under the circumstances, and
to brake in time. Id. at 649. Characterizing these statements “as admissions
that she had no factual basis or evidence in support of her claims against [the
engineer],” the district court found improper joinder.              Id. at 649–50.       We
reversed, explaining that the “lack of substantive evidence as to the
non[]diverse defendant does not support a conclusion that he was [improperly]
joined” even though that may support summary judgment. Id. at 650 & n3.
Instead, “the defendant must put forward evidence that would negate a
possibility of liability on the part of [the nondiverse defendant].” Id. at 650.
       Much of the argument of the removing parties in this case amounts to
what Travis rejected: “simply pointing to the plaintiff’s lack of evidence at this
stage of the case.” Id. at 650 (finding such an argument insufficient). Aside
from their arguments regarding Davidson’s deposition testimony which we will
address shortly, Defendants cite the district court’s finding that “there was no


holding that summary judgment is warranted when the movant identifies an absence of
evidence supporting a claim and the nonmovant fails to identify facts in response. See id. at
1911–12 (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)).
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                                 No. 14-30925
mention of either Graves or Taylor” in the Davidson I record. They have not,
however, identified any evidence from that earlier lawsuit negating a
possibility of liability on the part of Graves and Taylor, such as receipts or
other business records showing that those businesses did not supply asbestos
to Poulan Chainsaw from 1972–1978. Contrast, e.g., Vaillancourt v. PNC
Bank, Nat’l Ass’n, 771 F.3d 843, 847–48 (5th Cir. 2014) (per curiam) (finding
improper joinder established, in case in which plaintiff alleged that defendant
had not complied with statutory notice requirements before foreclosing, when
defendant produced uncontroverted evidence including certified mail receipt
and affidavit indicating notices were sent to plaintiff); Cuevas v. BAC Home
Loans Servicing, LP, 648 F.3d 242, 250 (5th Cir. 2011) (finding improper
joinder established, in case in which plaintiff alleged that defendant
wrongfully refused to accept tendered payment for loan in default, when
defendant produced uncontroverted evidence that it did not service or originate
the loan). With the pleadings pierced, it also would not have been difficult for
Defendants to submit affidavits from Graves and Taylor stating that they did
not supply Poulan (if that was the case). Contrast Guillory, 434 F.3d at 313
(finding improper joinder established, in case where plaintiff alleged
defendants breached duty to protect, based on “the self-serving [deposition]
testimony of the nondiverse defendant[s] that [they] had no responsibility for
safety measures relating to the particular plant explosion” because the
plaintiffs did not identify evidence contradicting the defendants’ testimony).
      We do not believe that the existence of a developed record in the first
lawsuit warrants expanding the improper joinder standard to allow the
absence of evidence alone to satisfy it. The improper joinder ruling was made
before discovery in this case, which had first named Graves and Taylor. See
McKee, 358 F.3d at 334 (“The district court must also take into account the
‘status of discovery’ and consider what opportunity the plaintiff has had to
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                                  No. 14-30925
develop its claims against the non[]diverse defendant.” (quoting Travis, 326
F.3d at 649)). The district court did not err in considering the record from the
first trial, and that record might have revealed evidence of the sort we just
mentioned that would disprove Plaintiffs’ claims. But finding an absence of
evidence to be controlling when Plaintiffs never had an interest in the first case
to develop evidence against Graves and Taylor would be at odds with the
limited scope of improper joinder and the defendant’s “heavy burden” to
establish it. Travis, 326 F.3d at 649. The record in the first lawsuit did not
include, nor would one expect it to, business records relating to Graves, Taylor,
or Poulan or testimony from people employed at those companies during the
1970s. Defendants point out that the defendants in Davidson I might have
had an incentive to develop such evidence against Graves and Taylor to
support contribution claims. But we have always focused on the plaintiff’s
opportunity to develop its claims, not other parties’ incentives. And if evidence
developed by other parties is relevant, would that extend to earlier cases not
even involving the plaintiff? We refuse the invitation to expand our improper
joinder inquiry.
      That leaves Davidson’s deposition testimony. The district court found,
without explanation, that this testimony supported its finding that Plaintiffs
have no reasonable possibility of recovery against Graves or Taylor. But his
June 2010 statement that it was “very possible” that he had been exposed to
asbestos at Poulan Chainsaw on its face more than satisfies a “some
possibility” standard. Defendants counter that his testimony a year later,
when Davidson said that he never saw anybody doing insulation work at
Poulan Chainsaw, and did not recall specific machinery or industrial Poulan
equipment being insulated with asbestos, shows that the possibility of any
recovery from Graves or Taylor is “merely a theoretical” speculation. See Ross
v. Citifinancial, Inc., 344 F.3d 458, 462 (5th Cir. 2003) (holding that
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    Case: 14-30925          Document: 00513470939         Page: 15     Date Filed: 04/19/2016



                                         No. 14-30925
speculation is insufficient). But accepting as inconsistent his “very possible”
versus “I do not recall” answers, we have to resolve the tension in favor of the
earlier, stronger statement.            See African Methodist Episcopal Church v.
Lucien, 756 F.3d 788, 793 (5th Cir. 2014) (“We repeat for emphasis that any
contested issues of facts and any ambiguities of state law must be resolved in
favor of remand.” (internal quotation marks omitted)). Even if we could credit
only Davidson’s later testimony—and, thus, limit his personal knowledge with
respect to his exposure at Poulan Chainsaw to the “I don’t recall” answer—that
only demonstrates an absence of evidence to support Plaintiffs’ claims. It does
not “preclude [P]laintiffs’ recovery against the in-state [D]efendant[s].” 10
Guillory, 434 F.3d at 310 (quoting Smallwood, 385 F.3d at 573–74).
       Finally, although Defendants make much of Plaintiffs’ apparent forum
manipulation, we have noted that the “motive or purpose of the joinder of in-
state defendants is not relevant” when the basis for removal is not “actual
fraud” in the pleadings but rather the inability of the plaintiff to recover
against the in-state defendant. Smallwood, 385 F.3d at 574.
                                               ***
       We VACATE the judgment and REMAND to the district court for entry
of an order remanding the case to state court.




       10   We thus need not consider the admissibility of the affidavit submitted by Plaintiffs’
counsel.
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