                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                         F I L E D
                         REVISED SEPTEMBER 23, 2004
                                                                        September 10, 2004
                    IN THE UNITED STATES COURT OF APPEALS
                                                                    Charles R. Fulbruge III
                              FOR THE FIFTH CIRCUIT                         Clerk



                                   No. 02-60782



KELLI SMALLWOOD,

                                                    Plaintiff-Appellant,

                                      versus

ILLINOIS CENTRAL RAILROAD COMPANY;
MISSISSIPPI DEPARTMENT OF TRANSPORTATION,

                                                    Defendants-Appellees.




              Appeal from the United States District Court
                for the Southern District of Mississippi



Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES,
STEWART, DENNIS, CLEMENT, PRADO, and PICKERING, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

      Today    we    decide    a   narrow    but    not   unimportant    question

regarding     diversity       jurisdiction     in   federal   courts     and    the

application of the doctrine of “improper joinder.”1                 This is the

first time this Court en banc has addressed the issue of improper



      1
        We adopt the term “improper joinder” as being more consistent with the
statutory language than the term “fraudulent joinder,” which has been used in the
past.   Although there is no substantive difference between the two terms,
“improper joinder” is preferred.
joinder, although a number of panels of this Court have previously

addressed it. We hold that, when a nonresident defendant’s showing

that there is no reasonable basis for predicting that state law

would allow recovery against an in-state defendant equally disposes

of all defendants, there is no improper joinder of the in-state

defendant.    In such a situation, the entire suit must be remanded

to state court.       In this case, it is undisputed that the district

court’s decision that Smallwood’s claims against the in-state

defendant were preempted effectively decided the entire case.                         On

these facts, we conclude that the district court erred in deciding

the merits of the proffered defense of preemption and in not

remanding the case to the state court from which it was removed.

                                            I

      Kelli Smallwood is a Mississippi resident who was injured when

a   train   struck    her   car    at   a     railroad   crossing     in     Florence,

Mississippi.       The train was operated by Illinois Central, an

Illinois corporation, and the railroad crossing was controlled by

an agency of the Mississippi state government, the Mississippi

Department    of     Transportation         (“MDOT”).     At   the    time     of    the

accident,    the   crossing       did   not     have   automatic     gates;    it    was

equipped only with warning lights, which had been installed using

federal funds.         After   the      accident,      Smallwood     filed    suit    in

Mississippi state court against both Illinois Central and MDOT,

raising claims of negligence.               She alleged, in particular, that

MDOT negligently failed to install gates at the crossing despite

                                            2
its knowledge that the crossing was unreasonably dangerous and

extraordinarily hazardous.

      Illinois Central removed the case to federal court.             Illinois

Central     maintained    that   Smallwood’s   claims    against    MDOT   were

preempted by the Federal Railroad Safety Act (“FRSA”).2             Reasoning

that the preemption defense barred Smallwood’s claims against MDOT,

Illinois Central argued that Smallwood had improperly joined MDOT

because, under the FRSA, there was no reasonable possibility of

recovery against MDOT.

      The   district     court   accepted   Illinois    Central’s   argument,

dismissed MDOT from the case, and denied Smallwood’s motion to

remand.     Applying the “law of the case,” the district court then

granted summary judgment for Illinois Central on the basis that

Smallwood’s claim against the railroad was equally preempted.               The

railroad won its case when it persuaded the district court that the

claims against the in-state defendant, MDOT, were preempted.3

      A panel of this court concluded that Illinois Central had not

carried its burden of demonstrating that the joinder of MDOT was


      2
        The Federal Railroad Safety Act prohibits states from enforcing state
laws when the Secretary of Transportation has adopted regulations covering the
same subject. See 49 U.S.C. §§ 20101-20153.
      3
        Smallwood raised two closely related claims against MDOT: that MDOT
negligently failed to install gates and that its delay in installing gates was
negligent. The district court rejected both of these claims on the basis of
preemption, concluding that the FRSA preempted all of Smallwood’s claims against
MDOT. See Smallwood v. Illinois Central RR Co., No. 3:01-cv-561BN (S.D. Miss.
Aug. 14, 2002) (Opinion and Order); see also Smallwood v. Illinois Central R.R.
Co., 203 F.Supp.2d 686 (S.D. Miss. 2002). At oral argument, Illinois Central
conceded that resolution of its preemption defense required dismissal of
Smallwood’s case in its entirety.

                                       3
fraudulent, reversed the district court’s dismissal of the case on

its merits, and ordered the case remanded to state court.                   We voted

to rehear the case en banc.

                                        II

     The starting point for analyzing claims of improper joinder

must be the statutes authorizing removal to federal court of cases

filed in state court.           The federal removal statute, 28 U.S.C.

§ 1441(a), allows for the removal of “any civil action brought in

a State court of which the district courts of the United States

have original jurisdiction.”           Subsection (b) specifies that suits

arising under federal law are removable without regard to the

citizenship of the parties; all other suits 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.”4      To remove a case based on diversity, the diverse

defendant     must    demonstrate   that      all    of   the   prerequisites       of

diversity jurisdiction contained in 28 U.S.C. § 1332 are satisfied.

Relatedly,     a     district   court    is    prohibited       by    statute   from

exercising     jurisdiction     over    a     suit   in   which      any   party,   by

assignment or otherwise, has been improperly or collusively joined




     4
         28 U.S.C. § 1441(b) (emphasis added).

                                         4
to manufacture federal diversity jurisdiction.5                       As Professor

Wright has noted:

      “[T]he Federal courts should not sanction devices
      intended to prevent the removal to a Federal court where
      one has that right, and should be equally vigilant to
      protect the right to proceed in the Federal court as to
      permit the state courts, in proper cases, to retain their
      own jurisdiction.”6

      The doctrine of improper joinder rests on these statutory

underpinnings, which entitle a defendant to remove to a federal

forum unless an in-state defendant has been “properly joined.”

Since the purpose of the improper joinder inquiry is to determine

whether or not the in-state defendant was properly joined, the

focus of the inquiry must be on the joinder, not the merits of the

plaintiff’s case.

      Given this focus, we have recognized two ways to establish

improper      joinder:      “(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.”7     Only the second way is before us today, and we explained

in Travis v. Irby8 that the test for fraudulent joinder is whether

      5
        28 U.S.C. § 1359. Section 1359 reads in full: “A district court shall
not have jurisdiction of a civil action in which any party, by assignment or
otherwise, has been improperly or collusively made or joined to invoke the
jurisdiction of such court.”

      6
        14 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3641, at 173 (3d
ed. 1998) (alteration in original) (quoting Wecker v. Nat’l Enameling & Stamping
Co., 204 U.S. 176, 186 (1907)).
      7
          Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003).
      8
          Id. at 648.

                                            5
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.       To   reduce    possible

confusion, we adopt this phrasing of the required proof and reject

all others, whether the others appear to describe the same standard

or not.9

      There has also been some uncertainty over the proper means for

predicting whether a plaintiff has a reasonable basis of recovery

under state law.     A court may resolve the issue in one of two ways.

The court may conduct a Rule 12(b)(6)-type analysis, looking

initially at the allegations of the complaint to determine whether

the complaint states a claim under state law against the in-state

defendant.10 Ordinarily, if a plaintiff can survive a Rule 12(b)(6)

challenge, there is no improper joinder.              That said, there are

cases, hopefully few in number, in which a plaintiff has stated a

claim, but has misstated or omitted discrete facts that would

determine the propriety of joinder.           In such cases, the district



      9
        A “mere theoretical possibility of recovery under local law” will not
preclude a finding of improper joinder.   Badon v. RJR Nabisco, Inc., 236 F.3d
282, 286 n.4. (5th Cir. 2000).
      10
         See McKee v. Kansas City S. Ry. Co., 358 F.3d 329, 334 (5th Cir. 2004);
see also Parks v. New York Times, Co., 308 F.2d 474, 478 (5th Cir. 1962)
(explaining that “there can be no fraudulent joinder unless it be clear that
there can be no recovery under the law of the state on the cause alleged, or on
the facts in view of the law as they exist when the petition to remand is
heard”).

                                       6
court may, in its discretion, pierce the pleadings and conduct a

summary inquiry.11

      While the decision regarding the procedure necessary in a

given case must lie within the discretion of the trial court, we

caution that a summary inquiry is appropriate only to identify the

presence of discrete and undisputed facts that would preclude

plaintiff’s recovery against the in-state defendant.12                    In this

inquiry the motive or purpose of the joinder of in-state defendants

is not relevant.        We emphasize that any piercing of the pleadings

should not entail substantial hearings.            Discovery by the parties

should not be allowed except on a tight judicial tether, sharply

tailored to the question at hand, and only after a showing of its

necessity.        Attempting to proceed beyond this summary process

carries a heavy risk of moving the court beyond jurisdiction and

into a resolution of the merits, as distinguished from an analysis

of   the    court’s    diversity    jurisdiction   by    a   simple   and   quick

exposure of the chances of the claim against the in-state defendant

alleged to be improperly joined. Indeed, the inability to make the

requisite      decision    in   a   summary   manner    itself   points     to   an

inability of the removing party to carry its burden.




      11
           Badon, 224 F.3d at 389 n.10.
      12
        For example, the in-state doctor defendant did not treat the plaintiff
patient, the in-state pharmacist defendant did not fill a prescription for the
plaintiff patient, a party's residence was not as alleged, or any other fact that
easily can be disproved if not true. See Irby, 326 F.3d at 648-49.

                                          7
                                             III

       Illinois Central argues that the district court’s finding of

improper joinder was appropriate because Smallwood’s claims against

MDOT were preempted by federal law.                     Illinois Central urges,

moreover, that it is irrelevant that the FRSA equally bars claims

against it.

       Facing        the   question    for    the   first   time    in     an   en   banc

proceeding, we reject the railroad’s contention.                           To justify

removal on improper joinder grounds, Illinois Central was required

to prove that the joinder of MDOT was improper.                    Illinois Central,

however, brought no contention going to the propriety of the

joinder.          Rather, the basis of its contention that Smallwood could

not recover went, in fact, to the entire case, although it was

first directed to Smallwood’s claims against MDOT.                          Then, with

jurisdiction secured, and with all the force of the “law of the

case,”       this     same    preemption     was    directed   to    the    merits    of

Smallwood’s claims against the railroad.

       A claim of improper joinder by definition is directed toward

the joinder of the in-state party, a simple but easily obscured

concept. The party seeking removal bears a heavy burden of proving

that        the     joinder    of     the    in-state    party      was     improper.13

Nevertheless, when, on a motion to remand, a showing that compels

a holding that there is no reasonable basis for predicting that


       13
            See, e.g., Griggs v. State Farm Lloyds, 181 F.3d 694, 701 (5th Cir.
1999).

                                              8
state law would allow the plaintiff to recover against the in-state

defendant necessarily compels the same result for the nonresident

defendant, there is no improper joinder; there is only a lawsuit

lacking in merit.          In such cases, it makes little sense to single

out the in-state defendants as “sham” defendants and call their

joinder      improper.          In   such   circumstances,    the       allegation   of

improper joinder is actually an attack on the merits of plaintiff’s

case as such – an allegation that, as phrased by the Supreme Court

in Chesapeake & O. R. Co. v. Cockrell, “the plaintiff’s case [is]

ill   founded      as    to    all    the   defendants.”14        In    reaching   this

conclusion,       we     are   applying     our    traditional    improper    joinder

analysis.

      In     Cockrell,        the    Supreme   Court   reviewed    an    effort    by a

railroad to remove a case to federal court on improper joinder

grounds.       The railroad argued that the plaintiff’s negligence

charges against the defendants were “each and all ‘false and

untrue’” and that the in-state defendants were added simply to

defeat diversity.15            Emphasizing that “the showing must be such as

compels the conclusion that the joinder is without right and made

in bad faith,” the Court rejected the railroad’s argument.16                         The

Court reasoned that although the plaintiff’s petition “may have



      14
           232 U.S. 146, 153 (1914).
      15
           Id. at 151.
      16
           Id. at 152.

                                               9
disclosed an absence of good faith on the part of the plaintiff in

bringing the action at all, . . . it did not show a fraudulent

joinder of the engineer and fireman.”17   Since “no negligent act or

omission personal to the railway company was charged,” the improper

joinder allegations directed at the employees “manifestly went to

the merits of the action as an entirety, and not to the joinder;

that is to say, it indicated that the plaintiff's case was ill

founded as to all the defendants.”18

     The Supreme Court thus made clear that the burden on the

removing party is to prove that the joinder of the in-state parties

was improper - that is, to show that sham defendants were added to

defeat jurisdiction. A showing that the plaintiff’s case is barred

as to all defendants is not sufficient. When the only proffered

justification for improper joinder is that there is no reasonable

basis for predicting recovery against the in-state defendant, and

that showing is equally dispositive of all defendants rather than

to the in-state defendants alone, the requisite showing has not

been made.

     Our insistence that a removing defendant demonstrate that the

joinder was improper does not impair a foreign defendant’s right to

remove.     “[T]he Federal courts may and should take such action as

will defeat attempts to wrongfully deprive parties entitled to sue



     17
          Id. at 153.
     18
          Id.

                                  10
in the Federal courts of the protection of their rights in those

tribunals.”19      In every case where a diverse defendant proves that

the plaintiff’s decision to join an in-state party is improper, the

diverse defendant gains access to the federal courts. If, however,

the foreign defendant fails to prove the joinder improper, then

diversity is not complete, the diverse defendant is not entitled to

remove, and remand is mandated.

      Illinois Central contends, nonetheless, that our decision

contradicts prior holdings of this circuit which have allowed a

finding of improper joinder based on defenses going to the merits

of the plaintiff’s case, rather than to the joinder.20              Yet we are

not pointed to any decision of this Court where the assertion was

made and rejected.         It was asserted here, and our decision today

fits squarely within our improper joinder doctrine and finds strong

support in       the   Supreme   Court’s     decision   in   Cockrell   and   the

decision of the Third Circuit in Boyer v. Snap-On Tools Corp.21

      While we need not deploy the well-pleaded complaint rule, it

is not unimportant that our application of the improper joinder

doctrine here disallows circumvention of the well-pleaded complaint

rule.       The railroad could not remove on the basis of federal


      19
           Alabama Great S. Ry. Co. v. Thompson, 200 U.S. 206, 218 (1906).
      20
        This argument was not presented to the able district judge.     Going as
it does to our subject-matter jurisdiction, we must decide it.

      21
        913 F.2d 108 (3d Cir. 1990); see also In re New England Mutual Life Ins.
Co. Sales Practices Litig., 324 F.Supp.2d 288 (D. Mass. 2004). But cf. Ritchey
v. Upjohn Drug Co., 139 F.3d 1313, 1320 (9th Cir. 1998).

                                        11
question jurisdiction because the only federal question appeared as

a defense. Nonetheless, Illinois Central did just that: it removed

on the basis of a defense of federal conflict preemption, urged as

the bar to a reasonable basis for predicting recovery against MDOT,

the   in-state      defendant.      The     appropriate   application   of   the

doctrine of improper joinder to this extent leaves intact the well-

pleaded complaint doctrine with all its intended reach.

                                          IV

      It is urged that this application of the improper joinder

doctrine undermines the purpose of diversity jurisdiction, which is

to protect out-of-state defendants from local bias, the proverbial

“home cooking.”       But our holding today is narrow.        It applies only

in that limited range of cases where the allegation of improper

joinder rests only on a showing that there is no reasonable basis

for predicting that state law would allow recovery against the in-

state defendant and that showing is equally dispositive of all

defendants.

      The doctrine of improper joinder implements our duty to not

allow manipulation of our jurisdiction.            We are not persuaded that

we can or should - as we are now urged to do – hold that

Strawbridge v. Curtiss22 does not apply to suits wholly lacking

“merit,” at least as seen by a federal court.              That is not a rule

of joinder, but a recrafting of Strawbridge.                  Until Congress


      22
           7 U.S. (3 Cranch.) 267 (1806).

                                          12
changes our jurisdiction and allows us to hear cases based on

something less than complete diversity, we cannot act. And make no

mistake, whether to confer diversity jurisdiction in the absence of

complete diversity is a quintessential political decision belonging

to Congress, as congressional efforts to respond to abuses in state

court class action litigation by allowing their removal on minimal

diversity have so recently reminded us.

     It is no accident that the first Congress conferred removal

jurisdiction, accommodating competing political interests. Removal

remains a centerpiece of our federalism.    The cry of out-of-state

interests seeking to escape local courts and local plaintiffs

seeking to avoid more distant justice is in fact an old and

recurring song.   It is a living dynamic, not an historic relic.   To

the point, our insistence that diversity removal, powerful as it

is, remain within its congressionally marked traces is demanded by

principles of comity and federalism – that a state court is to be

trusted to handle the suit unless the suit satisfies the removal

requirements.

     It is argued that our holding undermines judicial economy by

forcing a federal district court to remand a meritless case to

state court rather than dismiss it outright.        This argument,

however, misconstrues the inquiry on removal.     When a defendant

removes a case to federal court on a claim of improper joinder, the

district court’s first inquiry is whether the removing party has

carried its heavy burden of proving that the joinder was improper.

                                 13
Indeed, until the removing party does so, the court does not have

the authority to do more; it lacks the jurisdiction to dismiss the

case on its merits.   It must remand to the state court.

     Illinois Central seeks broader license to escape from state

court, but we are not authorized to grant such a request, as

compelling as it may be.   It is the province of Congress to modify

diversity jurisdiction.

                                 V

     The judgment of the district court is VACATED and the case is

REMANDED to the district court with instructions to remand for want

of jurisdiction to the state court from which it was removed.




                                 14
E. GRADY JOLLY, Circuit Judge, with whom JONES, SMITH, BARKSDALE,

EMILIO   M.   GARZA,    CLEMENT,    and   PRADO,    Circuit    Judges,    join,

dissenting:



      I respectfully dissent from the majority’s strange compulsion

to amend the traditional rules of fraudulent joinder based on a

seldom cited 1914 fact-specific case.23              This is all the more

strange in the light of the admonition we sounded recently:              “[F]or

the simple truth that we stand on the shoulders of those before us,

if for no other reason, we must be hesitant when we act on recent

flashes of “new” insight to the fundamentals of governance”.

Marathon Oil Co. v. Ruhrgas, 145 F.3d 211, 227 (5th Cir. 1998) (en

banc), rev’d, 526 U.S. 574 (1999) (Higginbotham, J., dissenting).

 In my view, the majority, in accepting the plaintiff’s briefing

and “new insights”, misreads the Supreme Court decision, disregards

established    precedent,     designs     a   troublesome    and   unnecessary

“common-defense” rule to amend a long established and fairer rule,

offers meaningless reasoning to support its decision and creates

confusion for the district courts -- all for no other reason, as

far as I can determine, than the satisfaction in finding a “buried



      23
         It is also odd that the majority has jettisoned the term “fraudulent
joinder”, used by all of our cases for five decades and by the treatises, for the
term “improper” joinder. Apparently the majority has concluded that it better
serves its new way of looking at an established concept. We note, however, that
“fraudulent joinder” was the term used by the Supreme Court in Chesapeake & Ohio
Ry. Co. v. Cockrell, 232 U.S. 146 (1914), which happens to be the source of
authority for the majority’s new rule.
treasure” obscured from our judicial predecessors for almost a

century.24

                                       I

      Up until today, our precedent has been rooted, established and

clear, having evolved through the writings of solid and respected

judges over many years.        It asks a simple question and, eschewing

personal motives of the plaintiff, applies an objective test to

produce a fair answer: When a diverse defendant removes to federal

court on grounds of fraudulent joinder we only ask, as the majority

opinion acknowledges:

             [W]hether 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., __ F.3d __, __, Maj. Op. at 5-6

(5th Cir. 2004) (en banc) (Smallwood III). Our inquiry is designed

to determine the single overarching question of whether the in-

state defendant was joined “solely to deprive the federal courts of

jurisdiction”; if our objective test determines that the plaintiff

cannot recover, then the in-state defendant is deemed fraudulently



      24
         In fairness to the district court and to the defendants, it should be
noted that “common defense” argument was never raised until new attorneys entered
the case on appeal.     Thus, the defendants were deprived of developing any
arguments below to counter the “common defense rule” and the district court has
been denied the opportunity to express itself on the subject. Nevertheless, the
majority proceeds straightforward to accept and adopt this untimely raised
argument, contending that it is permitted to do so, because it is jurisdictional.
See fn 20 maj. Op.

                                       16
joined   and    his    “existence     is    disregarded      for   purposes    of

determining diversity”.          16 JAMES WM. MOORE    ET AL.,     MOORE’S FEDERAL

PRACTICE § 107.14[2][c][iv][A] (3d ed. 2004); see also Smallwood v.

Ill. Cent. R.R. Co., 342 F.3d 400, 407 (5th Cir. 2003)(Smallwood

I), panel reh’g denied, 352 F.3d 220 (Smallwood II), reh’g en banc

granted, 355 F.3d 357 (stating that “the purpose of the fraudulent

joinder doctrine ... is to prevent a plaintiff from naming a

nondiverse     party   as   a   defendant     solely   for   the    purposes   of

depriving the court of jurisdiction”).

     The subjective intent of the plaintiff is irrelevant; instead,

our precedent, unequivocally and without exception, has evaluated

claims   of    fraudulent   joinder    with    a   simple,    well-understood,

objective two-prong test25 -- that is, until today.                See Travis v.

Irby, 326 F.3d 644, 647 (5th Cir. 2003); Ross v. Citifinancial,

Inc., 344 F.3d 458, 461 (5th Cir. 2003); Great Plains Trust Co. v.

Morgan Stanley Dean Witter & Co., 313 F.3d 305, 311-12 (5th Cir.

2002); Heritage Bank v. Redcom Lab., Inc., 250 F.3d 319, 323 (5th

Cir. 2001); Griggs v. State Farm Lloyds, 181 F.3d 694, 698-99 (5th

Cir. 1999); Rodriguez v. Sabatino, 120 F.3d 589, 591 (5th Cir.

1997); Burden v. Gen. Dynamics Corp., 60 F.3d 213, 217 (5th Cir.

1995); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 259

(5th Cir. 1995); Laughlin v. Prudential Ins. Co., 882 F.2d 187, 190

      25
         Under our two-prong test the diverse defendant must establish 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.” Travis v. Irby, 326 F.3d 644, 647 (5th Cir. 2003). Only the
second prong is before us today.

                                       17
(5th Cir. 1989); Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th

Cir. 1979); Parks v. New York Times Co., 308 F.2d 474, 478 (5th

Cir. 1962).

      Because we eschew a subjective test, our test does not seek to

determine the “truth” of exactly why the nondiverse defendant was

joined as a defendant in the lawsuit.26           Instead, the many judges

who have preceded us on this court have determined that this test

produces a practical “truth”:         that is, it is reasonable and fair

to assume that a lawyer, acting in accordance with the code of

professional responsibility, will not sue someone against whom he

has no reasonable basis of recovery, unless it is for an improper

reason; on the other hand, when a lawyer sues someone against whom

he has a reasonable basis of recovery, it is unlikely that the

joinder was for an improper reason.27              In short, it is always

“improper” -- professionally and ethically -- to join any party to

a suit if there is no basis of recovery, a point that apparently

has no place in the reasoning of the majority.

      Moreover, our established test is an efficient test because it

focuses only on the joinder of the nondiverse defendant and does


      26
        Subjective tests could often require attempts to penetrate the mind of
the plaintiff and turn removal hearings into lengthy proceedings.
      27
         “Rule 11 imposes a duty on attorneys to certify that they have conducted
a reasonable inquiry and have determined that any papers filed with the court are
well-grounded in fact, legally tenable, and ‘not interposed for any improper
purpose.’” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990) (quoting
FED. R. CIV. P. 11); See also MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.1 (2002)
(stating that “[a] lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in law and fact for doing
so that is not frivolous”).

                                       18
not require us to examine the case against the diverse defendant.

The majority’s “common-defense” rule, on the other hand, requires

the district court to go one step further and examine the entirety

of the case.

                               II

                                A

     According to the majority, however, this traditional analysis

is infected with error, long overlooked by scores of preceding

judges but now revealed:   The majority has declared that a New

Legal Truth has been uncovered -- The Common-Defense Theory.

Although the panel’s bold proclamation of the new discovery has

been modulated by the en banc majority, and although the majority

has narrowed the open-ended sweep of the panel, the unfortunate

amendment to our traditional rule remains:

          When the nonresident defendant’s showing that
          there is no reasonable basis for predicting
          that state law would allow recovery against
          the in-state defendant equally disposes of all
          defendants, there is no improper joinder of
          the in-state defendant.




                               19
Smallwood III, __ F.3d at __, Maj. Op. at 2.28              Under this rule,

even if the diverse defendant completely satisfies our traditional

test    and   demonstrates    that   the    plaintiff    has   no   reasonable

possibility of establishing a cause of action against the in-state

defendant, the traditional rule is abrogated, and the case is

remanded, irrespective of the plaintiff’s inability to recover in

state court, if the diverse and nondiverse defendants happen to

possess the same defense.

                                       B

       The majority’s support for its creation of the common defense

rule is the turn of the century fact-specific Supreme Court case,

Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146 (1914).                  The

pertinent language -- cherry-picked and shorn of context -- upon

which the majority relies as compelling a common-defense rule,

states:



       28
         Notwithstanding the objections we have with respect to the majority
opinion, we commend the majority’s efforts to define more precisely the rule’s
narrow application. The majority has restricted the rule to apply only when the
in-state defendant’s defense is identical to the one asserted by the diverse
defendant, which defense automatically and simultaneously disposes of the
plaintiff’s case against the diverse defendant as well. See Smallwood III, __
F.3d at __, Maj. Op. at 2 (stating that the defense must “equally dispose of” the
diverse defendant); id. at __, Maj. Op. at 8 (stating that the defense must
“necessarily compel[]” the same result as to the diverse defendant); id. at __,
Maj. Op. at 10 (stating that the defense must be “equally dispositive of all
defendants”).
      A somewhat more complicated application of the “common defense” rule occurs
when there are two or more defenses available to the non-diverse defendant, only
one of which is “common” to the diverse defendant. In such a case, the federal
court may nevertheless have jurisdiction if, on a motion to remand by the
plaintiff, the removing party asserts and proves only the non-common defense.
Because the defense at issue would not be “common,” the traditional rule (no
reasonable possibility of recovery in the state court against the instate
defendant) would apply – not the “common defense” rule adopted here by the
majority.

                                       20
            As no negligent act or omission personal to
            the railway company was charged, and its
            liability, like that of the two employees,
            was, in effect, predicated upon the alleged
            negligence   of   the  latter,   the   showing
            manifestly went to the merits of the action as
            an entirety, and not to the joinder; that is
            to say, it indicated that the plaintiff’s case
            was ill founded as to all the defendants.
            Plainly, this was not such a showing as to
            engender or compel the conclusion that the two
            employees were wrongfully brought into a
            controversy which did not concern them.     As
            they admittedly were in charge of the movement
            of the train, and their negligence was
            apparently the principal matter in dispute,
            the plaintiff had the same right, under the
            laws of Kentucky, to insist upon their
            presence as real defendants as upon that of
            the railway company.

Cockrell, 232 U.S. at 153.            As discussed below, however, the

correct reading of Cockrell does not justify, much less compel the

creation of the “common-defense” rule.

      Since Cockrell was decided in 1914, the only circuit court

decision that, previous to today, has interpreted it as proclaiming

a “common-defense” exception to the fraudulent joinder rule is the

Third Circuit’s opinion in Boyer v. Snap-On Tools Corp., 913 F.2d

108 (3d Cir. 1990).29        Equally revealing of the novelty of the

majority’s position is that neither WRIGHT & MILLER, FEDERAL PRACTICE        AND

PROCEDURE nor MOORE’S FEDERAL PRACTICE -- the two most authoritative

treatises on federal practice -- cites Cockrell as relating to such


      29
         In Boyer, the Third Circuit relied on the same passage from Cockrell as
mandating a common defense rule. Boyer, 913 F.2d 108. In fact, in Smallwood I,
the panel relied heavily on Boyer’s interpretation of Cockrell and adopted
verbatim Boyer’s version of the “common defense” rule. Smallwood I, 342 F.3d at
405.

                                      21
a theory as “common-defense” or, for that matter, even intimates

that such a rule exists.30

                                              C

       I turn now to address the majority’s reliance on Cockrell.                          In

Cockrell the plaintiff sued the Railroad and the in-state engineer

and fireman who operated the train that caused the death of the

intestate. The plaintiff alleged that, although the negligence was

that of the in-state engineer and fireman in the manner that they

operated the train, the railroad -- which committed no independent

act of negligence -- was nevertheless liable for the negligent

conduct of its employees.               In short, the entire suit was solely

founded      (or    “ill-founded”)         on     the   conduct      of    the    in-state

defendants; no argument could be made, as the Court put it, that

the two in-state defendants were joined to a suit in which they did

not belong.        Indeed, but for their conduct the railroad would not

have been in the suit; the in-state defendants could not possibly

have been fraudulently joined because their conduct was the only

actionable conduct in the case; there was in essence but one case

and it was against the joined defendants themselves.


       30
          FEDERAL PRACTICE AND PROCEDURE mentions Cockrell only for the propositions
that (1) “the burden on the party seeking removal on the basis of fraudulent
joinder is a heavy one,” (14B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE: JURISDICTION 3D § 3723 (3d ed. 1998), (2) “[r]esort to the allegations in
the notice of removal also may be necessary to show that one or more parties have
been fraudulently joined to defeat removal,” (14C FEDERAL PRACTICE AND PROCEDURE:
JURISDICTION 3D § 3734 (3d ed. 1998), and (3) “[a]llegations in the notice may be
used to show that parties have been fraudulently joined to defeat removal.” 20
CHARLES ALAN WRIGHT & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: FEDERAL PRACTICE DESKBOOK
§ 42 (2002). MOORE’S FEDERAL PRACTICE, on the other hand, does not appear to cite
Cockrell at all.

                                             22
     With respect to the grounds of fraudulent joinder of the two

employees, the Railroad’s only basis was that the plaintiff’s

allegations against these two in-state defendants were “false and

untrue”.    See   Cockrell,   232   U.S.   at    153.     To   be   sure,   the

Railroad’s claim of fraudulent joinder would have required that a

trial on the merits be conducted in a removal proceeding.

     That   the   majority     misreads     Cockrell      as   calling      for

modification of our traditional rules of fraudulent joinder is

demonstrated by how neatly the traditional rules decide the case

for fraudulent joinder presented in Cockrell:              We look at the

complaint and first conclude that the complaint clearly states a

claim against the fireman and the engineer for their negligent

conduct, a claim that has a possibility of prevailing under state

law; we next look at the railroad’s claim of fraudulent joinder,

that is, that the negligence claims were “false and untrue”; we

then apply our rule that disputed factual merits will not be tried

in removal proceedings; and we would have remanded.            This exercise

demonstrates   that   the     majority     has   vastly    overstated       the

implications of Cockrell.     In fact, it is only by seizing language

taken out of context and ignoring the sum of this case in all of

its parts -- factual and legal -- that the majority creates its

misguided amendment to our traditional rule.

     Still further, however, in virtually all respects the instant

case is distinguishable from Cockrell.       First, there is no issue of

vicarious liability here and consequently the “entirety” of the

                                    23
case against Illinois Central is not premised on the liability of

MDOT.       Unlike Cockrell, Smallwood seeks to hold Illinois Central

liable for its own act of negligence -- its                        negligent delay in

installing safety devices.             Compare with Cockrell, 232 U.S. at 153

(stating that “no negligent act or omission personal to the railway

company was charged”).                Consequently, unlike the Railroad in

Cockrell whose liability was totally dependent upon the liability

of    the    joined    defendants      (its    employees),         Illinois         Central’s

liability was not predicated on the negligence of MDOT; instead,

its liability was independent of MDOT’s liability.                            Compare with

Cockrell (stating that the railroad’s liability “was, in effect,

predicated      upon    the     negligence        of   the       [employees]”).           Id.

Therefore, the showing of conflict preemption in this case, unlike

Cockrell, does not go the merits of the action in its entirety,

that is, the defense is not a traverse of the allegations of the

entire complaint, as in Cockrell, but only indicates that, as to

MDOT,       Smallwood’s       claims    are       procedurally          barred;        stated

differently MDOT’s defense does not attack the facts upon which the

plaintiff’s      case     against       Illinois       Central         is     founded     nor

automatically         absolve    Illinois         Central    of        its    own     alleged

negligence.      Compare with Cockrell, 232 U.S. at 153 (stating that

“the showing manifestly went to the merits of the action as an

entirety, and not to the joinder, that is to say, it indicated that

the    plaintiff’s      case    was    ill    founded       as    to    all    defendants”

(emphasis added)).

                                             24
     In sum, it is only through a strained application based on a

serious misreading that the majority inflates the significance and

relevance of Cockrell, a case that has lain basically dormant for

all of its 90-year life.

                                    III

     Not only does the majority’s misreading and misapplication of

Cockrell betray the weakness of its position, the majority fails to

come up with any compelling reasons that might otherwise support

its misadventure.

     It argues that its theory is justified, because the focus in

fraudulent   joinder     cases   should     be    on   the   joinder   of    the

non-diverse defendant – not on the merits of the case.                      This

"focus" argument is a strawman.         Of course the focus should be on

the joinder, but on the joinder as a whole.             Beyond uttering the

platitudinous axiom that the focus should be on the joinder, the

majority fails to offer any explanation of why the viability of the

cause of action against the joined defendant is not part of that

focus; indeed, only a few lines later, the majority states that the

joinder inquiry is whether the plaintiff can establish a cause of

action against the joined party.         But, as with other inconsistent

and contradictory statements in the opinion, the common-defense

rule duels with this professed statement of the governing rule.

     The majority may be unwilling to face it, but the plain and

undeniable   fact   is    that   only     the    traditional    test   focuses

exclusively on the joinder; the common-defense theory requires that

                                    25
the court look beyond the joinder of the nondiverse defendant to

the entirety of the case and determine the defenses of the diverse

defendant as well.      If the majority were serious in trumpeting a

test that focuses on the joinder, and not the entire case, it would

adhere to the traditional test.

      The majority seems to forget that the overarching purpose of

improper joinder inquiry is to determine if the defendant has been

joined solely to defeat diversity.         See JAMES WM. MOORE   ET AL.,   MOORE'S

FEDERAL PRACTICE § 107.14[2][c][iv][A] (3d ed. 2004).31          The weakness

of the majority's argument is that it fails to demonstrate how the

common-defense rule serves the purpose of the improper joinder

inquiry -- that is, to determine whether the defendant has been

joined solely to defeat diversity -- any better than, or as well

as, the traditional test does.          Indeed, as we have demonstrated

earlier, the traditional test produces a “practical truth”, where

the common defense theory does not even purport to do so.

      The majority argues that even though Illinois Central showed

there could be no recovery against the joined defendant, it failed

to prove that the joinder of MDOT was improper and that Illinois

Central "brought no contention going to the propriety of the

joinder."    Smallwood III, __ F.3d at __, Maj. Op. at 8(emphasis


      31
        The panel opinion expressly agreed with this statement of purpose, as
indeed does the unanimous precedent of our circuit. See Smallwood I, 342 F.3d
at 407. The majority, however, finds this statement of purpose inconvenient to
the arguments it is now making and in a circular fashion says that "the purpose
of the improper joinder inquiry is to determine whether or not the in-state
defendant was properly joined". Smallwood III, __ F.3d at __, Maj. Op. at 5.
It cites no authority for its circular statement of purpose.

                                      26
added).    It is difficult to understand how the majority can make

such a serious misstatement, unless it is somehow contending that

Illinois Central had no right to rely upon 40 years of consistent

precedent.     Illinois Central relied upon our well-established

precedent and demonstrated to the satisfaction of the district

court -- a result which the majority does not challenge -- that the

plaintiff had no reasonable possibility of recovering against MDOT;

it was clearly improper to sue (and thus "join") MDOT when the

plaintiff had no hope of recovery against MDOT.           Furthermore, even

in the light of Cockrell, the defense of MDOT did not go to the

merits of the entire case that the plaintiff had alleged against

Illinois Central; only a procedural defense was raised to bar

Smallwood's    claims   against    MDOT.        Thus,   it      is     a   serious

misstatement    to   suggest   that        Illinois   Central        "brought     no

contention going to the propriety of the joinder" when Illinois

Central demonstrated that the plaintiff's claims against MDOT were

barred; this showing meant, under the law existing until today,

that MDOT was joined solely to defeat diversity jurisdiction. This

argument goes directly to the propriety of the joinder by any

standard and it is incorrect for the majority to assert otherwise.

     In an attempt to provide some logic to its argument, the

majority   argues    that   because   MDOT’s     successful      defense        also

requires the dismissal of the entire case, the joinder of MDOT is

not improper because the removed case is only a meritless case, not

a fraudulently joined case.       The majority connects no further dots

                                      27
to this argument.        Left hanging, as its postulate is, it follows

that    the   majority   argues   that    the    lack   of   merit     of   a   case

determines removability -- which it surely does not.                  Seizing on a

dichotomy between removable and meritless cases, the majority

simply has not sorted out the confusion of its contention: it

argues that when both defendants possess the same complete defense

the claim is meritless and the case is non-removable; yet, it

surely does not contend that the meritless case is non-removable

when    the   respective    defenses     of    the   diverse    and    nondiverse

defendants are different, and result in the dismissal of the entire

case.    Thus, it is clear that the attempted rationale of equating

a completely meritless case with non-removability is meritless in

itself.

       The most baseless argument of the majority is that it is only

"applying our traditional improper joinder analysis."                   Smallwood

III, __ F.3d at __, Maj. Op. at 9.              This statement represents a

retreat into major denial of what it has so plainly done.                   Indeed,

it is incomprehensible how the majority would expect this statement

to   be taken    seriously.       We    have    previously     string-cited      the

numerous      cases   applying    our    traditional     fraudulent         joinder

analysis, none of which -- I repeat, none of which -- has any

element of the common-defense rule that the majority tattoos on our

traditional analysis.        Even the majority acknowledges that under

our traditional analysis:



                                        28
            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, 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 III, __ F.3d at __, Maj. Op. at 5-6.                 Thus, there is no

question    but    that,    under   the    majority’s    own    test,   MDOT   was

fraudulently joined since the majority does not deny that there is

no possibility of recovering against MDOT. Because it asserts that

it is only following our traditional test, one would expect the

majority    to    follow    its   own   pronouncement     of    the   traditional

analysis.        But no; notwithstanding the unequivocal words the

majority expresses in one part of the opinion, the majority then

contradicts itself and shapes a new rule: even though there is no

reasonable basis for predicting that state law would allow recovery

against MDOT, it is nevertheless properly joined and the case is

not removable, because its defense disposes of the entire case and

renders it a “meritless” case, not a “fraudulently joined” case.

This   clearly     is   a   departure     from   the    traditional     test   for

fraudulent joinder and the majority’s denial of what it has done

demonstrates its ultimate lack of confidence in its novel theory.

       In sum, the arguments that the majority makes to shore up its

misreading of Cockrell deflate under any careful examination and




                                          29
make unavoidable the conclusion that the majority has been beguiled

by Smallwood's dare to this court to be modern -- 1914 style.32

                                       IV

      With fullest respect, I dissent because the majority, for no

sound legal reason that I can determine, has taken upon itself to

amend our established rules for determining diversity jurisdiction,

while admonishing that such amendments should be left to Congress.

It has done so in strange ways.          It has relied on a Supreme Court

case that has been dormant to the world for close to a century and

has no relation to the facts here.          The majority acknowledges our

traditional rule as controlling. It then amends the rule by adding

a "but if" clause.       It then denies that it has done what it has

just done.     It offers meaningless ad hoc arguments that skirmish

with its earlier pronouncements.             It then sounds alarms that

      32
         We do note that the majority opinion contains what we consider to be
several irrelevancies, which we suppose are inserted as rhetoric to bolster its
effort to sell the “common-defense” rule: to-wit, the reference to Strawbridge
v. Curtiss and the well-pleaded complaint rule among others, which have nothing
to do with the case.

      Of more importance, the majority, with no call to do so, addresses
procedure and discovery issues that arise in remand proceedings. This writing
is fairly unremarkable except that it appears to be written to underscore one
side of our precedent. It certainly has no precedential effect. These remarks
are pure dicta because no one has made an issue of this subject at any point in
these proceedings. It certainly has no relevance to deciding this case. The
further insignificance of this writing is demonstrated by the majority’s failure
to cite any authority, notwithstanding the fact that we have a long list of
precedents addressing the appropriateness of discovery in removal proceedings.
See Badon v. RJR Nabisco, Inc., 224 F.3d 382, 389, 393-94 (5th Cir. 2000); Fields
v. Pool Offshore, Inc., 182 F.3d 353, 356-57 (5th Cir. 1999); Burden v. General
Dynamics Corp., 60 F.3d 213, 217 & n.18 (5th Cir. 1995); Cavallini v. State Farm
Mut. Auto Ins. Co., 44 F.3d 256, 263 (5th Cir. 1995); Burchett v. Cargill, Inc.,
48 F.3d 173, 175-76 (5th Cir. 1995); Jernigan v. Ashland Oil Inc., 989 F.2d 812,
815-16 (5th Cir. 1994); LeJeune v. Shell Oil Co., 950 F.2d 267, 271 (5th Cir.
1992); Carriere v. Sears Roebuck & Co., 893 F.2d 98, 100 (5th Cir. 1990); Keating
v. Shell Chemical Co., 610 F.2d 328, 333 (5th Cir. 1980). It is this authority
that has precedential value.

                                       30
Strawbridge v. Curtiss is under attack -- a gratuitous and phantom

irrelevancy to the matter before us.         It decries a closet attack on

the well-pleaded complaint rule that seems to be a decoy.                All of

this, and yet there is no explanation why our traditional rule does

not work better to serve the purpose of the fraudulent joinder

inquiry:     To determine whether the in-state defendant was joined

"solely to deprive the federal courts of jurisdiction."

      Even though I am baffled why the majority would produce this

aberrant writing, it is nevertheless with collegial respect that I

dissent.33




      33
         Judge Clement’s dissent is insightful and states a principle that is not
only consistent with our traditional rule, but is the embodiment of that rule:
In removal proceedings, it is not for the district courts to decide a contested
and undecided legal issue when the court must choose between two arguments, each
with plausible merit. In such a situation, it cannot be said that there is no
reasonable possibility of recovery in state court. The joinder, therefore, is
not improper, irrespective of what the district court may think is the correct
answer. Yet, the majority ignores her writing, never addressing whether this
case might be decided and remanded under Judge Clement’s approach, which could
render its common defense theory unnecessary for a remand of this case.
      Judge Smith’s dissent raises credible issues that demonstrate the confusing
jurisdictional and collateral estoppel possibilities that the majority opinion
creates, and then refuses to address.      For example, because the majority’s
explanation for distinguishing between the traditional rule and the common
defense rule is that the entire case is a meritless case – not a fraudulently
joined case – it would appear that it is necessary, under the common defense
rule, to determine the merits of the common defense in order to determine if it
is a “meritless case.” And, although the common defense analysis may ultimately
determine that the federal court has no jurisdiction to entertain the case, the
federal court surely would have had jurisdiction to determine its own
jurisdiction, and the finding of a meritless case would have been made when the
federal court was acting within its jurisdiction. As such, the federal court
decision may, on remand to the state court, constitute a binding finding in the
state case.
      The majority would act more responsibly by confronting and attempting to
resolve the confusion that arises from its aberrant and troublesome decision.
Its silence is truly regrettable and will be costly to the administration of
justice.


                                       31
JERRY E. SMITH, Circuit Judge, with whom JONES and BARKSDALE, Circuit

Judges, join, dissenting:



     “Courts must be particularly circumspect in reconsidering de-

cisions interpreting statutes.”          Bhandari v. First Nat’l Bank of

Commerce, 829 F.2d 1343, 1353 (5th Cir. 1987) (en banc) (Higgin-

botham, J., concurring), vacated, 492 U.S. 901 (1989).               “As an in-

ferior court we must not allow our version of a ‘correct’ result to

deceive us into semantic games of reformulation and hair splitting

in order to escape the force of a fairly resolved issue.”               Id. at

1352 (Higginbotham, J., concurring).        Contrary to this well-estab-

lished tenet of stare decisis, however, the majority, in an opinion

by Judge Higginbotham that reflects lowest-common-denominator rea-

soning, has unnecessarily created a mess in this circuit’s removal

jurisprudence.    Most significantly, in an offering worthy of the

Oracle   at   Delphi,   the   majority,    in   an   exercise   of    judicial

activism, has made a quagmire out of what had been an orderly and

fair process for determining fraudulent joinder.

     In so doing, and by dusting off a forgotten decision of the

Supreme Court, the majority has introduced needless friction and

conflict into the federal-state rubric for determining the proper

forum for civil diversity actions.          And finally, in a remarkable

showing of euphemistic chutzpah, the majority has renamed “fraudu-

lent joinder” as “improper joinder,” upsetting decades of nomen-


                                    32
clature without apparent reason. Agreeing with every word of Judge

Jolly’s compelling dissent, I add a few comments.



                                I.

                                A.

     The majority insists that “the focus of the inquiry must be on

the joinder, not the merits of the plaintiff’s case.”     As Judge

Jolly cogently shows, however, it is the majority’s new-fangled

common-defense theory that expands inquiry into the merits by, as

Judge Jolly puts it, “requir[ing] that the court look beyond the

joinder of the nondiverse defendant to the entirety of the case and

determine the defenses of the diverse defendant as well.”

     The majority pretends that it avoids inquiry into the merits

when making the determination of fraudulent-joinder-now-to-be-

called-improper-joinder.   The fatal flaw in this exercise is that

under the majority’s construction, it is impossible to decide

fraudulent-joinder-now-to-be-called-improper-joinder without making

decisions on the merits.

     Because the district court has jurisdiction to decide its own

jurisdiction, that court has not only the capacity but the duty, in

deciding the issue of fraudulent-joinder-now-to-be-called-improper-

joinder, to address any merits questions that are made necessary by

the majority’s scheme.   The decision on any such merits issue then

logically becomes a holding, because it is necessary to the result



                                 33
(i.e., remand) and therefore (again, logically) should be binding

on the state court to which the action is returned.

     If the majority were to respond (which it will not, see

infra), it undoubtedly would counter that it is not deciding the

merits at allSSindeed, that it is prohibited from doing so, be-

cause, given that the ultimate result is that it is without jur-

isdiction over the merits, its power to decide is limited to deter-

mining its own jurisdiction.   In the majority’s words, “[a]ttempt-

ing to proceed beyond [a] summary process carries a heavy risk of

moving the court beyond jurisdiction and into a resolution of the

merits.”

     Overlooked in this reasoning is that it is at times not only

desirable but necessary for a court to examine at least a portion

of the merits as a precursor to deciding jurisdiction. “[A] feder-

al court always has jurisdiction to determine its own jurisdiction.

In order to make that determination, it was necessary for the

[court of appeals] to address the merits.”   United States v. Ruiz,

536 U.S. 622, 628 (2002).



                                 B.

     The problem with imposing a rule by which the district court

must “address the merits” is that the state court that receives the

remand will need to decide what to do with that decision.   In the

instant case, the majority blesses “a summary inquiry . . . to

identify the presence of discrete and undisputed facts that would

                                 34
preclude plaintiff’s recovery against the in-state defendant.”

Where such preclusion is found, it “necessarily compels the same

result for the nonresident defendant, [so] there is no improper

joinder; there is only a lawsuit lacking in merit.”               In other

words,    as   the   majority   further   explains,   “the   allegation   of

improper joinder is actually an attack on the merits of plaintiff’s

case . . . .”

     The majority makes no effort to examine the consequences of

its own explanation.       The majority imposes a process whereby the

federal district court is required to decide merits issues, even to

the point of declaring that the lawsuit is entirely “lacking in

merit.”    One would think that once a court of competent jurisdic-

tion has made such a “decision” that a case is wholly without

merit, that case is at an end, and no other courtSSstate or

federalSSmay reexamine it.

     What, then, under the majority’s formulation, is the state

court supposed to do on remand?       One option would be for the state

court to dismiss the case ministerially and without making further

inquiry into the correctness of the federal district court’s deci-

sion.34   But that would be a process of unnecessary formalism and,

in any event, is not what the majority apparently contemplates.




     34
        See, e.g., FDIC v. Meyerland Co. (In re Meyerland Co.), 960 F.2d
512, 520 (5th Cir. 1992) (en banc) (requiring court that receives an action
to take it as it finds it and enter prescribed judgment without making
independent evaluation of the merits).

                                     35
     The majority gives no hint that the state court will be in any

way bound by the federal district court’s pronouncement that, as a

matter of merits and substance, the lawsuit is wholly lacking in

merit.     Very much to the contrary, under today’s logic the state

court will be free to disagree, to resurrect the case, and ulti-

mately to award the plaintiff relief against the in-state and out-

of-state defendants as well.    In other words, the state court will

be free to ignore whatever merits conclusions the federal court has

reached.



                                 II.

     The majority thus unnecessarily and unwittingly creates fric-

tion between state and federal jurisdictions.    The majority’s new

paradigm eviscerates what the majority venerates as the “principles

of comity and federalism.”       By thinly-veiled implication, the

majority declares that the federal court is incompetent to make a

binding pronouncement on the merits issues as to which the majority

insists that same federal court is obliged to reach non-binding

conclusions.

     This contrivance is at war with the collegial state-federal

relations that the majority pretends to honor.       The majority’s

novel plan invites parties to take one tack in federal court and

another once remand has been achieved.     The majority’s reasoning

invites disparate interpretations of the same issues of law by

state and federal forums.    It promotes manipulation and complica-

                                  36
tion of a process that, until now, has been stable, predictable,

and fair.



                                III.

     By redesignating “fraudulent joinder” as “improper joinder,”

the majority has shown its agility in innovative nomenclature.

What should the majority call its new breed of merits decisions

that are not binding holdings?        Perhaps they are “musings,” or

“asides” or “ruminations,” or “advisory opinions” or dicta, or even

“preliminary predictions”SSsomething less than a holding but more

than an idle thought.   They are, in any event, a breed apart.   They

are rulings the majority says are necessary to the decision on

fraudulent-joinder-now-to-be-called-improper-joinder,     but,   once

these rulings or ruminations are issued, they disappear into the

ether, after remand, as if they had never even been expressed.

They are simultaneously indispensable and expendable, at once both

necessary and superfluous.



                                IV.

     The majority’s newly-concocted “common-defense” rule, raised

by plaintiff for the first time on appeal, will cause resourceful

defense counsel, in the vigorous defense of their clients’ inter-

ests, to alter the way in which they plead defenses.   The filing of

defenses will be timed not in a way designed to ensure “the just,

speedy, and inexpensive determination of [removed] action[s],” FED.

                                 37
R. CIV. P. 1, but instead in such a manner as to avoid imposition

of the majority’s common-defense mechanism.    Defenses will be de-

scribed and fashioned so that they cannot be deemed to apply to

diverse and non-diverse defendants alike.     Such manipulation and

contrivance, exacerbating the prospect of varying state-federal

adjudications I have described above, can only undermine respect

for the courts.



                                V.

     Entirely overlooked in the majority’s analysis is any concern

for “the traditional values of stare decisis.”     Bhandari v. First

Nat’l Bank of Commerce, 829 F.2d 1343, 1352 (5th Cir. 1987) (en

banc) (Higginbotham, J., concurring), vacated, 492 U.S. 901 (1989).

This principle is especially important where, as here, we are in-

terpreting statutes instead of the Constitution.    “Courts must be

particularly circumspect in reconsidering decisions interpreting

statutes.” Id. at 1353 (Higginbotham, J., concurring). “[I]f only

a question of statutory construction were involved, we would not be

prepared to abandon a doctrine so widely applied throughout nearly

a century.”   Erie R.R. v. Tompkins, 304 U.S. 64, 77-78 (1938)

(Brandeis, J.).

     “[A]ny detours from the straight path of stare decisis in our

past have occurred for articulable reasons, and only when the Court

has felt obliged to bring its opinions into agreement with experi-


                                38
ence and with facts newly ascertained.”      Vasquez v. Hillery, 474

U.S. 254, 266 (1986) (internal quotation and citation omitted).

Here, the majority offers absolutely no reason why there is a prob-

lem, much less one that so badly needs to be fixed that it can

trample stare decisis to achieve a questionable and bizarre result.

     We should not break with a well-established rule of law unless

it is “outdated, ill-founded, unworkable, or otherwise vulnerable

to serious reconsideration.”   Id.    “[T]here is a point at which the

orderly accommodations of law-making and law-interpreting demands

that we resist reconsideration because Congress may well have ac-

quiesced in prior statutory interpretations.”      Bhandari, 829 F.2d

at 1352 (Higginbotham, J., concurring). Here, there is not only no

good reason to enact a change, there is no reason at all, except

the majority’s ipse dixit.

     It would be bad enough that the majority effects a sea change

in the heretofore orderly world of removal jurisprudence.       It is

worse still that the majority makes no attempt to offer compelling

reason for its revolution.   It appears, in fact, that the majority

can identify no reason, for it provides no answerSSnot even a

wordSSin response to the cogent points made by Judge Jolly in dis-

sent, to Judge Clement’s resourceful concurrence, or to the issues

I have raised. The majority’s silence harms the collegial judicial

process by leaving the reader to wonder whether the majority has

even examined the objections that have been raised or, instead, is


                                 39
intransigent because of fear of losing its majority status.      It

would be far better for the two sides to join issue, despite their

differences, in the interest of frankly fleshing out these impor-

tant questions.   Perhaps the majority merely has no answer to the

deficiencies in its reasoning that the dissents have identified.



                                 VI.

     In sum, the majority is wrong for many reasons, not the least

of which is that its pronouncement that a “defense [that] disposes

of the entire case and renders it a ‘meritless case’” logically

should, if true, completely end the litigation, not prolong it in

another forum.    The proper answer, instead, is that we can easily

avoid the potential state-federal conflict, not to mention the

inefficiency imposed by the majority’s new scheme, which, as Judge

Jolly notes, will require mini-trials that turn simple proceedings

into ordeals.

     As Judge Jolly lucidly explains, “the [majority’s] common-

defense theory requires that the court look beyond the joinder of

the nondiverse defendant to the entirely of the case and determine

the defenses of the diverse defendant as well.     If the majority

were serious in trumpeting a test that focuses on the joinder, and

not the entire case, it would adhere to the traditional test.”

That traditional test avoids all the pitfalls I have explained, and

we are left with no explanation of why the majority is so deter-



                                 40
mined to abandon it.   Because our settled jurisprudence on fraudu-

lent joinder should be left alone, I respectfully dissent.




                                 41
EDITH BROWN CLEMENT, Circuit Judge, Dissenting, Concurring in Judgment only:

       For the reasons cited in Judge Jolly’s dissent, I respectfully dissent from Part III of the

majority opinion. Cockrell does not intimate the common-defense rule that the majority sets forth.

Nevertheless, despite the majority’s faulty common-defense rationale, the majority is correct in

concluding that ICR do es not prevail on its fraudulent-joinder claim. ICR fails to show that it is

unreasonable to construe FRSA as not applying to Smallwood’s state-law claim of negligence against

MDOT.          ICR attempts to prove fraudulent joinder by showing an “inability of the plaintiff to

establish a cause of action against the non-diverse party in state court.” See Travis v. Irby, 326 F.3d

644, 647 (5th Cir. 2003). ICR argues that Smallwood is unable to establish a cause of action against

MDOT because under FRSA, the affirmative defense of preemption applies to Smallwood’s claim

of negligence in delaying installation of warning devices. To support its preemption claim, ICR cites

decisions in other circuits that suggest that where federal funds were used to install railroad crossing

devices, FRSA preempts claims of negligence in the delay of installation. See Bock v. St. Louis Ry.

Co., 181 F.3d 920, 923-24 (8th Cir. 1999); Armijo v. Atchinson, Topeka & Santa Fe Ry. Co., 87 F.3d

1188, 1192 (10th Cir. 1996)).

       Smallwood argues that FRSA does not preempt her negligence claim against MDOT. She

first points out that this Circuit has not yet ruled on whether FRSA preempts claims of negligence in

the delay of installation. Smallwood next points out that in applying the preemption doctrine under

FRSA, this Court has stated that it “follow[s] the Supreme Court in eschewing broad categories such

as ‘railroad safety,’ focusing instead on the specific subject matter contained in the federal

regulation.” See Frank v. Delta Airlines Inc., 314 F.3d 195, 200 (5th Cir. 2002) (internal quotations

omitted). This Court has further stated that “‘FRSA preemption is even more disfavored than


                                                  42
preemption generally.’” United Transp. Union v. Foster, 205 F.3d 851, 860 (5th Cir. 2000) (quoting

Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 515 (5th Cir.1999)). Against this backdrop of Fifth

Circuit precedent, Smallwood observes that the portion of FRSA that ICR cites as preemptive does

not actually set forth guidelines regarding the time within which warning devices must be installed.35

Lastly, Smallwood directs this Court to a federal district court decision that completely supports her

position, Powers v. CSX Transportation Inc., 97 F. Supp. 2d 1297 (S.D. Ala. 2000). There, the

federal district court held that FRSA does not preempt state-law claims of negligence in the delay of

installing warning devices. Id. at 1305-09. The court opined that preemption of the state-law claim

would be contrary to the purpose of FRSA, reasoning:

       [I]f [FRSA] were construed to preempt negligent delay claims, railroads could
       indefinitely delay installation of additional warning devices approved by [a federal
       agency] with—as in this case—catastrophic effects on the very people Congress
       intended to protect. . . . [T]he Court cannot fathom any set of circumstances under
       which such a result could be consonant with Congress’ purpose to “promote safety
       . . . and to reduce railroad-related accidents.”

Id. at 1305-06 (quoting 49 U.S.C. § 20101). According to Powers, FRSA does not substantially

subsume the subject matter of timely installation. Id. Smallwood thus cites persuasive legal

authority, in an area of law that this Circuit has not yet decided, to support her argument that federal

preemption does not apply.

       In the context of fraudulent joinder, this Court has not opined how courts should construe a

federal affirmative defense to a state-law claim where the federal law is not clearly defined. This

Court has, however, addressed the standard for construing unclear state law. Beginning with Bobby




       35
         FRSA does address a timeline for an accelerated project, but such a
project is not at issue here. See 23 C.F.R. § 646.218.

                                                  43
Jones Garden Apartments, Inc. v. Suleski, 391 F.2d 172, 176 (5th Cir. 1968), this Court stated the

standard as follows:

        [T]he question is whether there is arguably a reasonable basis for predicting that the
        state law might impose liability on the facts involved. If that possibility exists, a good
        faith assertion of such an expectancy in a state court is not a sham, is not colorable
        and is not fraudulent in fact or in law.

Recently, in Travis v. Irby, this Court thoroughly discussed the issue and concluded that a defendant

must demonstrate the absence of a “reasonable basis for predicting that the state law might impose

liability on the facts involved . . . .” 326 F.3d 644, 647-48 (5th Cir. 2003) (quoting Great Plains

Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002)); accord Griggs

v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir. 1999) (“[W]e must determine whether there is any

reasonable basis for predicting that [the plaintiff] might be able to establish [the defendant’s] liability

on the pleaded claims in state court.”). The principle underlying this Court’s construction of

uncertain state law is, in the words of the majority, to discover “whether the defendant has

demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant . .

. .” Smallwood v. Ill. Cent. R.R. Co., __ F.3d __, __, Maj. Op. at 6 (5th Cir. 2004).

        This principle—that a defendant must demonstrate that there is no possibility of recovery by

the plaintiff—suggests that courts should construe an unclear federal affirmative defense to a state-

law claim in the plaintiff’s favor, just as the principle requires courts to construe state law in favor

of the plaintiff. To prevail on a fraudulent-joinder claim, then, a defendant must show that no

reasonable basis exists for construing a federal affirmative defense as not applying. By showing that

the affirmative defense must apply, a defendant will have shown that the “joinder is without right and

made in bad faith.” See Cockrell, 232 U.S. at 152. In contrast, where the affirmative defense can



                                                    44
reasonably be interpreted as not applying, the defendant has not shown that the joinder was made in

bad faith. Thus, a joinder does not appear to be “made in bad faith” if there is at least a non-frivolous,

reasonable basis for construing the federal affirmative defense so that it does not apply to the state-

law cause of action.

        This rule implies that where an issue of whether a federal affirmative defense applies is res

nova, and there is a non-frivolous, reasonable basis for construing the federal affirmative defense as

not applying, a defendant cannot show fraudulent joinder. Under those circumstances, the resolution

of that res nova issue is improper. Although a federal court can decide such a res nova federal

question when it is properly before the court, the court should refrain from deciding it in the

fraudulent-joinder context if a reasonable, non-frivolous basis exists for interpreting the issue in favor

of the plaintiff: the reasonable basis is sufficient to determine the ultimate jurisdictional question of

fraudulent joinder.

        Applying this principle to the instant case reveals that ICR must show that a non-frivolous,

reasonable basis does not exist for construing FRSA as not preempting Smallwood’s state-law claim

of negligence in the delay of installation. As stated above, ICR attempts to satisfy this burden by

citing persuasive authority from the Eighth and Tenth Circuits, Bock and Armijo, which hold that

FRSA preempts that claim. In the face of this authority, it is unquestionable that ICR has raised a

strong argument for construing FRSA as applying. But the strength of ICR’s argument falls short

of showing that it is unreasonable to construe FRSA as not applying. Given that (1) this Court

construes narrowly the doctrine of federal preemption (especially with respect to FRSA), (2) FRSA

does not specify a time period for installing warning devices, and most importantly, (3) persuasive




                                                   45
authority has held that FRSA does not preempt the same state-law claim, a non-frivolous, reasonable

basis does exist for Smallwood’s assertion that FRSA does not preempt her state-law claim.

       It should be emphasized that this conclusion does not imply that FRSA does not preempt

Smallwood’s negligence claim. The fraudulent-joinder context of the preemption issue before this

Court only requires that this Court determine whether Smallwood argued in bad faith that FRSA does

not apply. Because a non-frivolous, reasonable basis exists supporting Smallwood’s argument, the

district court should not have reached that preemption issue to determine jurisdiction. ICR has not

shown fraudulent joinder. Remand is appropriate.




                                                46
