     Case: 09-40993     Document: 00511017220          Page: 1    Date Filed: 02/01/2010




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

                                                  FILED
                                                                          February 1, 2010

                                       No. 09-40993                    Charles R. Fulbruge III
                                                                               Clerk

MARLA MELISSA MENENDEZ; ADELFA MANCILLAS MENENDEZ;
GRISELL MENENDEZ MANCILLAS; ALICIA BEATRIZ MANCILLAS;
MARLENE MENENDEZ MANCILLAS; ANA TERESA MANCILLAS,

                                                   Plaintiffs - Appellants
v.

WAL-MART STORES, INC.; WAL-MART STORES EAST, LP; WAL-MART
REALTY; WALTON CONSTRUCTION COMPANY, INC.; WALTON
CONSTRUCTION COMPANY, LLC; CARTER & BURGESS, INC.; JACOBS
ENGINEERING GROUP, INC; JACOBS ENGINEERING, INC.; HANSEN-
RICE, INC.; NES RENTALS HOLDING, INC.; NES EQUIPMENT
SERVICES CORPORATION; NES EQUIPMENT RENTAL, LP; JLG
INDUSTRIES, INC.,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:08-cv-00348


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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       This is an interlocutory appeal from an order denying the plaintiffs’ motion
to remand and granting the defendants’ motion to amend their notice of removal
to federal court. We AFFIRM.
                                     I. Background
       This case arises from the death of Humberto Gustav Menendez. Mr.
Menendez was fatally injured in Gas City, Indiana, while operating a lift (“the
JLG lift”) on a project to build a Wal-Mart Distribution Center.                    Marla
Menendez, the daughter of the deceased, brought this action individually and as
the personal representative of Mr. Menendez’s estate in the 93rd Judicial
District Court in Hidalgo County, Texas. Mr. Menendez’s widow and remaining
children joined in the lawsuit.
       The plaintiffs assert two separate causes of action against the defendants.
First, they assert a survival action on behalf of Mr. Menendez for the personal
injuries, physical and mental pain and suffering, and other damages he suffered
prior to his death. Second, each plaintiff asserts a wrongful death claim for the
damages they sustained as a result of Mr. Menendez’s death. The plaintiffs
argue that the defendants were negligent “in the design, build, construction, and
supervision of the premises and/or the JLG lift.” 1
       The defendants filed a timely notice of removal to federal court, arguing
that removal was proper because the plaintiffs had joined non-diverse defendant
Carter & Burgess for the sole purpose of defeating diversity jurisdiction. The
parties do not dispute that complete diversity would exist between the parties
if defendant Carter & Burgess was not a party to the suit.2 The plaintiffs moved


       1
         The plaintiffs also assert strict liability and negligence claims against the
manufacturer and owner of the JLG lift. Because the claims against the individual defendants
other than Carter & Burgess are not relevant to the issues raised in this appeal, we do not
distinguish the claims raised against each defendant.
       2
        In addition to the diversity question, Carter & Burgess’s presence in the lawsuit
would create an impediment to removal under 28 U.S.C. § 1441(b) because Carter & Burgess

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to remand the case, asserting that the defendants failed to properly allege the
citizenship of the parties or the amount in controversy, and disputing that
Carter & Burgess is an improperly named defendant.3
       The district court granted the defendants leave to amend their notice of
removal.     The district court also denied the plaintiffs’ motion to remand,
concluding that the facts supporting diversity jurisdiction were apparent from
the record; the plaintiffs’ claims, either standing alone or aggregated, satisfied
the amount in controversy requirement; and defendant Carter & Burgess had
been improperly joined. Accordingly, the district court retained jurisdiction over
the case. The plaintiffs filed this interlocutory appeal, challenging the district
court’s denial of its motion to remand, method of calculating the amount in
controversy, and conclusion that non-diverse defendant Carter & Burgess was
improperly joined.
                                 II. Standard of Review
       We review a district court’s exercise of jurisdiction de novo. Acuna v.
Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000). Factual determinations
regarding jurisdiction are reviewed for clear error. New Orleans & Gulf Coast
Ry. Co. v. Barrois, 533 F.3d 321, 327 (5th Cir. 2008).
       The federal diversity statute, 28 U.S.C. § 1332(a)(2), states that federal
courts have jurisdiction over all civil actions between citizens of a state and
citizens or subjects of a foreign state where the amount in controversy exceeds



is a resident of the forum state. The “forum-defendant rule” is not jurisdictional and may be
waived. In re 1994 Exxon Chem. Fire, 558 F.3d 378, 393 (5th Cir. 2009).
       3
         The defendants assert that the plaintiffs failed to file their motion to remand within
the thirty-day period prescribed by 28 U.S.C. § 1447(c), and have accordingly waived their
arguments about jurisdictional defects. The plaintiffs did file a motion to remand on
December 26, 2008, within the thirty-day window, but the district court struck the motion as
deficient. A proper motion to remand was not filed until January 13, 2009, outside of the
thirty-day time limit. The plaintiffs do not dispute that their motion to remand was not timely
filed.

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$75,000. The statute requires complete diversity, meaning that a federal court
may not exercise diversity jurisdiction if any one of the plaintiffs is a citizen of
the same state as any one of the defendants. The federal removal statute, 28
U.S.C. § 1441, allows defendants to remove an action to federal court if the
federal district court would have original jurisdiction based on diversity of
citizenship and no defendant “is a citizen of the State in which such action is
brought.” § 1441(b); Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 857 (5th Cir.
2003).
      The party seeking to invoke federal jurisdiction has the burden to prove
by a preponderance of the evidence that federal jurisdiction exists. Barrois, 533
F.3d at 327. The basis for diversity jurisdiction must be “distinctly and
affirmatively alleged.” Mullins v. TestAmerica, Inc., 564 F.3d 386, 397 (5th Cir.
2009) (quotation marks and citation omitted).        This court has stated that a
failure to adequately allege the basis for diversity jurisdiction “mandates
dismissal.” Stafford v. Mobil Oil Corp., 945 F.2d 803, 805 (5th Cir. 1991). Any
“doubts regarding whether removal jurisdiction is proper should be resolved
against federal jurisdiction.” Acuna, 200 F.3d at 339.
                                  III. Discussion
      On appeal, the plaintiffs assert three claims of error in denying their
motion to remand. First, they argue that the original notice of removal was
defective and the district court erred by allowing the defendants to amend the
notice of removal to properly demonstrate diversity jurisdiction. They further
assert that the amended notice of removal is deficient because it fails to properly
allege the citizenship of the relevant parties or that the amount in controversy
requirement is satisfied. Finally, the plaintiffs argue that the district court
erred by concluding that non-diverse defendant Carter & Burgess was
improperly joined. We address each of these arguments in turn.



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A. Defects in the Original Notice of Removal
      The plaintiffs assert that the district court erred by allowing the
defendants to amend their notice of removal to correct the deficient allegations.
We find that the plaintiffs waived their objections to the sufficiency of the notice
of removal because they failed to file a proper motion to remand within thirty
days of the action being removed to federal court. See 28 U.S.C. § 1447(c); In re
Shell Oil Co., 932 F.2d 1518, 1523 (5th Cir. 1991).
      Further, the district court did not abuse its discretion by allowing the
defendants to amend their notice of removal to allege facts supporting diversity
jurisdiction. In granting the defendants leave to amend their removal notice, the
district court relied on 28 U.S.C. § 1653, which grants courts the authority and
discretion to allow parties to cure defective allegations of jurisdiction. The
district court correctly observed that § 1653 should be liberally construed to
allow a party to cure technical defects, including the failure to specifically allege
the citizenship of the parties. See Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d
1254, 1258 n.5 (5th Cir. 1988); Whitmire v. Victus Ltd., 212 F.3d 885, 887-88 (5th
Cir. 2000). Therefore, the district court did not abuse its discretion by allowing
the defendants to amend their notice of removal.
B. Denial of the Motion to Remand
      The plaintiffs argue that the amended notice of removal is deficient
because the defendants failed to properly show that the amount in controversy
requirement is satisfied and the parties are diverse from one another.
Accordingly, the plaintiffs argue that the district court erred by denying their
motion to remand.
      1. Amount In Controversy Allegations
      The plaintiffs assert that the district court erred by finding that the
amount in controversy requirement was satisfied.           First, the district court
concluded that each of the plaintiffs’ claims satisfied the jurisdictional

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requirement.    Second, in the alternative, the district court found that the
plaintiffs’ claims could be aggregated to satisfy the $75,000 minimum. We
conclude that each of the plaintiffs’ claims satisfies the amount in controversy
requirement; accordingly, we do not reach the issue of whether the plaintiffs’
claims may be aggregated to satisfy the jurisdictional threshold.
      To establish federal jurisdiction, the removing party must show that the
amount in controversy “exceeds the sum or value of $75,000, exclusive of interest
and costs.” 28 U.S.C. § 1332(a). The amount in controversy is determined at the
time of removal. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir.
2000). If a defendant establishes “by a preponderance of the evidence that the
amount in controversy is greater than the jurisdictional amount,” a plaintiff may
defeat removal only by establishing to a legal certainty that his or her recovery
will not exceed the statutory threshold. In re: 1994 Exxon Chem. Fire, 558 F.3d
378, 387 (5th Cir. 2009) (quotation marks and citation omitted).
      This court determines whether the defendants have satisfied the amount
in controversy requirement by first asking whether it is “facially apparent” from
the state court petition that the claims exceed $75,000 in value. See Allen v.
R.H. Oil & Gas Co., 63 F.3d 1326, 1336 & n.16 (5th Cir. 1995). If it is not
facially apparent that the monetary requirement is satisfied, the defendants
may establish federal jurisdiction by alleging facts—either in the petition for
removal or by affidavit—that support a conclusion that the amount in
controversy requirement is satisfied. Garcia v. Koch Oil Co. of Texas, Inc., 351
F.3d 636, 638-39 (5th Cir. 2003). In this case, the defendants did not introduce
additional facts to show that the amount in controversy requirement was
satisfied; rather, they asserted that it was facially apparent from the complaint
that the jurisdictional threshold is satisfied.




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       We conclude that it is facially apparent that each plaintiff’s wrongful
death claim satisfies the amount in controversy requirement.4 In the complaint,
the plaintiffs, the children of Mr. Menendez, seek damages for their personal
injuries, including their mental pain and suffering, sustained as a result of Mr.
Menendez’s death. Further, plaintiff Adelfa Mancillas de Menendez, the wife of
Mr. Menendez, seeks damages for loss of companionship and consortium. These
allegations, taken on their face, establish that the amount in controversy
requirement is satisfied. See De Aguilar v. Boeing Co., 11 F.3d 55, 57 (5th Cir.
1993) (holding that, based on the face of the complaint, the plaintiffs’ claims for
wrongful death exceeded the $50,000 amount in controversy threshold); see also
Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999) (holding that, on
the face of a complaint for personal injury damages, the plaintiff’s claims
satisfied the $75,000 amount in controversy requirement); Gebbia, 233 F.3d at
883 (holding that it was facially apparent from the plaintiff’s complaint that the
amount in controversy was satisfied where the plaintiff alleged damages for
mental anguish, suffering, loss of wages, and medical expenses).
       Because the amount in controversy requirement is satisfied for each of the
plaintiffs’ wrongful death claims, we need not reach whether the plaintiffs’
survival action satisfies the amount in controversy requirement. The district
court could properly exercise supplemental jurisdiction over the survival action




       4
         In so holding, we do not announce a per se rule that a wrongful death claim will
always satisfy the amount in controversy requirement; rather, we conclude that the complaint
in this case satisfies the jurisdictional threshold.

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pursuant to 28 U.S.C. § 1367. 5 Accordingly, the district court did not err by
concluding that the amount in controversy requirement was satisfied.
       2. Diversity of Citizenship Allegations
       The plaintiffs assert that the amended notice of removal is deficient
because it fails to allege the citizenship of Mr. Menendez, the deceased. The
federal diversity jurisdiction statute states that, in determining whether
diversity jurisdiction exists, “the legal representative of the estate of a decedent
shall be deemed to be a citizen only of the same State as the decedent.” 28 U.S.C.
§ 1332(c)(2). The amended notice of removal alleges only the citizenship of
Marla Menendez, the personal representative of Mr. Menendez’s estate, and not
Mr. Menendez.
       At oral argument and in their briefing before the district court, the
plaintiffs conceded that Mr. Menendez was a citizen of Texas at the time of his
death.6 In any event, no one contends that Mr. Menendez was a citizen of the
same state as any defendant other than Carter & Burgess. Thus, any defect in
the amended notice of removal is purely technical and the plaintiffs waived any
objections to the notice of removal by failing to file timely a proper motion to
remand. In re Shell Oil Co., 932 F.2d at 1523. To remedy the technical defect,
we grant the defendants’ motion for leave to amend their notice of removal


       5
         While a survival action is brought on behalf of the deceased, the cause of action and
any attendant recovery belongs to the heirs of the deceased or the deceased’s legal
representative or estate. See TEX . CIV . PRAC . & REM . CODE § 71.021 (stating that the survival
action “survives to and in favor of the heirs, legal representatives, and estate of the injured
person”). Thus, the survival action and wrongful death actions, while separate causes of
action, are closely related and the exercise of supplemental jurisdiction is not improper.
       6
         We treat the plaintiffs’ statement in their briefing before the district court that Mr.
Menendez was a citizen of Texas as a binding judicial admission. See City Nat’l Bank v.
United States, 907 F.2d 536, 544 (5th Cir. 1990) (noting that the court may “appropriately
treat statements in briefs as binding judicial admissions of fact”); see also Ruiz v. Allstate Ins.
Co., 295 F. App’x 668, 671-72 (5th Cir. 2008) (unpublished) (finding improper joinder where
plaintiff admitted in his briefing before the district court that his claims against the non-
diverse defendant lacked merit).

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contained in their appellate response brief and hold that the district court did
not err in concluding that the facts supporting diversity jurisdiction between the
plaintiffs and the out-of-state defendants were apparent from the record. See 28
U.S.C. § 1653 (stating that defective allegations of jurisdiction “may be amended,
upon terms, in the trial or appellate courts”) (emphasis added); see also Carlton
v. Baww, Inc., 751 F.2d 781, 783 (5th Cir. 1985) (granting leave on appeal to
amend the jurisdictional allegations in the complaint and affirming the decision
of the district court on the merits).   Defendants are ordered to file an amended
notice of removal in the district court stating Mr. Menendez’s citizenship within
thirty days of this opinion.
      3. Improper Joinder
      In the final step of determining whether diversity jurisdiction exists, we
now address whether the plaintiffs improperly joined defendant Carter &
Burgess to defeat diversity jurisdiction. The parties agree that if non-diverse
defendant Carter & Burgess was properly joined, federal jurisdiction does not
exist and the case should be remanded to state court.
      The district court found that there was no reasonable possibility that the
plaintiffs could recover from resident defendant Carter & Burgess and thus
concluded that Carter & Burgess was improperly joined. The district court
relied on the affidavit of Ed Hess, an employee of Carter & Burgess, to conclude
that Carter & Burgess did not owe the decedent or the plaintiffs any legal duty
with respect to the building, construction, supervision, or control over the
premises or lift because they were not involved in these tasks. Alternatively, the
district court held that the plaintiffs had failed to attach a certificate of merit in
support of their claims for professional negligence against Carter & Burgess, as
required by Texas Civil Practice & Remedies Code § 150.002. We hold that,
based on the Hess affidavit, there is no reasonable possibility that the plaintiffs



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can recover from in-state defendant Carter & Burgess; accordingly, we affirm the
district court’s finding that Carter & Burgess was improperly joined.7
       The federal removal statute states that suits that arise under diversity
jurisdiction are removable “only if none of the parties in interest properly joined
and served as defendants is a citizen of the State in which such action is
brought.” 28 U.S.C. § 1441(b). Improper joinder may be established by either
“(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.” Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en
banc) (citation omitted).        In this case, there is no claim that the plaintiffs
fraudulently pleaded jurisdictional facts; accordingly, only the second type of
improper joinder is at issue.
       To determine whether non-diverse defendant Carter & Burgess was
improperly joined, we ask “whether the defendant has demonstrated that there
is no possibility of recovery by the plaintiff against [Carter & Burgess], 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 [it].” Smallwood,
385 F.3d at 573.       Put another way, “there must be a reasonable possibility of
recovery, not merely a theoretical one.” Campbell v. Stone Ins., Inc., 509 F.3d
665, 669 (5th Cir. 2007) (quotation marks and citation omitted). The burden of
persuasion on a party asserting improper joinder is a “heavy one.” Id.; Kling
Realty Co., Inc. v. Chevron USA, Inc., 575 F.3d 510, 514 (5th Cir. 2009).
       In analyzing whether a plaintiff has demonstrated a reasonable possibility
of recovery, the district court may “conduct a Rule 12(b)(6)-type analysis, looking



       7
        In so holding, we decline to reach the second basis for the district court’s decision that
Carter & Burgess was improperly joined. We express no views on whether Texas Civil
Practice & Remedies Code § 150.002 precludes the plaintiffs from recovering from Carter &
Burgess.

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initially at the allegations of the complaint to determine whether the complaint
states a claim under state law against the in-state defendant,” or “the district
court may, in its discretion, pierce the pleadings and conduct a summary
inquiry.” Smallwood, 385 F.3d at 573. In doing so, however, the court “must also
take into account all unchallenged factual allegations, including those alleged
in the complaint, in the light most favorable to the plaintiff.” Travis v. Irby, 326
F.3d 644, 649 (5th Cir. 2003).         Any ambiguities in state law or contested fact
issues must be resolved in favor of the plaintiff. Id. “[T]he focus of the inquiry
must be on the joinder, not the merits of the plaintiff’s case.” Smallwood, 385
F.3d at 573.
       The sole allegations against defendant Carter & Burgess appear in Count
I of the plaintiffs’ complaint. They assert that the defendants “were negligent
in the design, build, construction, and supervision of the premises and/or the
JGL lift by failing to recognize, eliminate, or control hazards, which resulted in
the injury and subsequent death of the decedent.” A claim of negligence consists
of three essential elements: “1) a legal duty owed by one person to another; 2) a
breach of that duty; and 3) damages proximately resulting from the breach.”
Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). To
establish liability, the plaintiffs must demonstrate both the existence and the
violation of a legal duty owed to the plaintiffs by the defendant. Id.
       In support of their fraudulent joinder argument, the defendants submitted
the affidavit of Ed Hess, a senior project manager for Carter & Burgess.8 Hess
testified about the extent of the services provided by Carter & Burgess for the
Wal-Mart Distribution Center project. Hess stated that:




       8
           The plaintiffs moved to strike the Hess affidavit in the district court. The district
court denied the motion. The plaintiffs-appellants have not appealed the denial of the motion
to strike.

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            The scope of services [provided by Carter & Burgess]
            specifically excludes authority over or responsibility for
            the means, methods, techniques, sequences or
            procedures of construction selected by contractors. The
            scope of services further specifically excludes any
            responsibility for or involvement in safety precautions
            and programs incident to the work of contractors.
            Further, the scope of services dictates that Carter &
            Burgess is not responsible for the failure of any
            contractors to comply with the laws, rules, regulations,
            ordinances, codes, or orders applicable to contractors
            furnishing or performing their work.

Accordingly, the defendants assert that Carter & Burgess cannot be held liable
for the injuries and death of Mr. Menendez.
      In response, the plaintiffs assert that the district court erred by conducting
a summary inquiry into the merits of their claims against Carter & Burgess,
rather than a Rule 12(b)(6)-type inquiry.        This argument fails.     We have
repeatedly held that a court may pierce the pleadings and consider summary-
judgment-type evidence to determine whether joinder of a party was proper.
Smallwood, 385 F.3d at 573. Indeed, in In re: 1994 Exxon Chemical Fire, this
court examined extensive deposition testimony and affidavits to determine
whether the plaintiffs could show individual liability for any of the allegedly
improperly joined defendants. 558 F.3d at 385-87.           After that review, we
concluded that the individual defendants were improperly joined because no
evidence in the record showed that the non-diverse defendants were personally
liable for the tortious conduct. Id. at 386-87; see also Kling Realty Co., Inc., 575
F.3d at 516 (concluding from the evidence in the record that the non-diverse
defendants were improperly joined because no evidence supported a reasonable
possibility of recovery against them).       Where the record fails to support a
reasonable possibility of recovery and merely suggests a theoretical possibility,
this court has found improper joinder.


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       Here, the plaintiffs argue that Carter & Burgess provided project
management services, and thus may be held liable for the negligent provision of
these services or the creation of a dangerous condition. The plaintiffs rely on
Mathis v. RKL Design/Build, 189 S.W.3d 839 (Tex. App.—Houston 2006, no
pet.). The court in Mathis did observe that, in a premises liability action, “[a]
general contractor on a construction site, who is in control of the premises, is
charged with the same duty [to keep the premises under his control in a safe
condition.]” Id. at 844. But where a defendant lacked control over the allegedly
unsafe premises, the defendant does not owe the plaintiff a duty of care. Id. at
845.
       In this case, there are no facts in the record showing that Carter &
Burgess “owned, occupied, or created the [JLG lift] or agreed to make it safe,” or
that it actually controlled the premises. Mathis, 189 S.W.3d at 845. Nor have
the plaintiffs alleged any link between the services provided by Carter &
Burgess and the death of Mr. Menendez. Carter & Burgess was not a general
contractor and did not provide similar services. The plaintiffs have not contested
Hess’s testimony that the Carter & Burgess contract expressly disclaimed
responsibility for the supervision of other contractors or the safety of the
premises.      Accordingly, the district court did not err by concluding that
defendant Carter & Burgess was improperly joined because there was no
reasonable possibility that the plaintiffs could recover from it.9 See In re: 1994
Exxon Chem. Fire, 558 F.3d at 386-87 (finding that defendants were improperly




       9
         The defenses asserted by Carter & Burgess do not apply equally to the remaining
defendants; accordingly, the district court did not err by denying the motion to remand. See
Rico v. Flores, 481 F.3d 234, 237 (5th Cir. 2007) (noting that, under Smallwood, “a district
court must remand a case where a defendant asserts a defense in support of improper joinder
that is dispositive of all claims in the action”); Smallwood, 385 F.3d at 571.


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joined because the plaintiff failed to allege facts showing that the non-diverse
defendants were responsible for the injury alleged).
                                IV. Conclusion
      For the foregoing reasons, the motion for leave to amend is GRANTED, the
order of the district court granting leave to amend and denying the motion to
remand is AFFIRMED, and the case is REMANDED for further proceedings.




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