     Case: 17-30144      Document: 00514624838         Page: 1    Date Filed: 08/31/2018




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                      No. 17-30144                       United States Court of Appeals
                                                                                  Fif th Circuit

                                                                                 FILED
JOEL G. PORTER,                                                           August 31, 2018
                                                                            Lyle W. Cayce
              Plaintiff - Appellee                                               Clerk

v.

TIMES GROUP; TIME BOOKS, doing business as People Magazine; STEVE
HELLING,

              Defendants - Appellants




                  Appeals from the United States District Court
                      for the Middle District of Louisiana
                             USDC No. 3:16-CV-121


Before CLEMENT, HIGGINSON, and HO, Circuit Judges.
PER CURIAM:*
       We are asked to decide whether the district court erred when it allowed
Joel G. Porter to amend his complaint to add a party that destroyed complete
diversity and then remanded the action to state court. Because we are without
appellate jurisdiction, we dismiss.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 17-30144       Document: 00514624838         Page: 2     Date Filed: 08/31/2018



                                       No. 17-30144
                              FACTS AND PROCEEDINGS
       Porter—now an attorney in Baton Rouge—married a young woman
named Denise in the early 1980s. The marriage was rocky. In 1985, Porter
returned home from his graveyard shift at the U.S. Post Office to find Denise
stabbed to death in their apartment. There was no sign of forced entry, and
Denise’s murderer apparently took a shower after the stabbing. Porter was
initially a person of interest in the police investigation. But it soon became
clear that Porter did not leave work the night of the murder. Denise’s killer
was never caught, and the case eventually grew cold.
       More than two decades later, Detective John Dauthier reopened the case
and obtained a warrant for Porter’s DNA. Porter sued Dauthier, claiming
defamation and constitutional violations for Dauthier’s alleged mishandling of
the case. 1
       Times Group/Time Books (dba People Magazine) published an article
and produced a live-broadcast feed online entitled “Nearly 30 Years After
Brutal Killing, Authorities Reopen Cold Case of Denise Porter.” An article also
appeared in the print version of People Magazine, which Porter alleged has a
readership of 46.6 million people. According to Porter, Steve Helling hosted the
live broadcast feed, and Anne Lang—a contract reporter, freelance journalist,
and Louisiana citizen—wrote the article. The article stated that Porter
“seemingly had an ironclad alibi” because “no one saw him leave the premises”
of his job. The live broadcast discussed the fact that, for reasons related to the
Porters’ rocky marriage, Denise had packed her suitcase to leave the day she



       1Porter eventually settled his claims against the police department and others after
the DNA evidence did not match Porter, and the police department announced that he was
no longer a person of interest. See Joe Gyan Jr., Suits against police dropped after BRPD says
lawyer no longer investigated in wife’s 1985 murder, The Advocate (May 9, 2017),
http://www.theadvocate.com/baton_rouge/news/courts/article_034e3f76-34d6-11e7-96e8-
8b5c187e72ae.html.
                                              2
     Case: 17-30144      Document: 00514624838         Page: 3    Date Filed: 08/31/2018



                                      No. 17-30144
was murdered. The broadcast also said that Porter was “not thrilled that the
police are reopening this case” and referenced his defamation lawsuit.
       Readers of People Magazine’s online article posted numerous comments
about Porter. Here’s a sample: “Something is hiding behind those eyes of the
husband. Something not to trust. They need to really take another serious look
at him as a suspect.” “It sounds to me like he simply doesn’t want his DNA
tested because he doesn’t want to be caught as the actual murderer of his wife.”
“Book him Danno:) The motive points to him and if his DNA is on her his alibi
is shot.”
       Alleging that all of these publications were defamatory, Porter sued
People Magazine,        Helling, and Lang in Louisiana               state court. 2 But,
unbeknownst to Porter, Lang had passed away prior to the initiation of the
action. As Lang was the only defendant who was also a Louisiana resident,
People Magazine and Helling (collectively, People Magazine) removed the
action to the Middle District of Louisiana on the basis of diversity jurisdiction.
Porter moved to remand, arguing that removal was inappropriate because
People Magazine had not proven that Lang was deceased. Porter did not deny
that Lang had died, however, and he even moved for the appointment of a
representative for Lang in accordance with Louisiana law.
       People Magazine responded that Lang died on July 6, 2015, and attached
a proposed order requesting Lang’s death certificate. 3 The magistrate
recommended that Porter’s motion to remand be denied, noting that Lang had
not been served or joined through her estate and that Porter did not contest
that Lang was deceased. Citing Louisiana law, the magistrate explained that



       2  Porter also claimed that People Magazine’s publications amounted to an intentional
infliction of emotional distress.
        3 People Magazine also moved to dismiss or strike Porter’s claims under Louisiana’s

Anti-SLAPP statute.
                                             3
      Case: 17-30144    Document: 00514624838    Page: 4   Date Filed: 08/31/2018



                                  No. 17-30144
the proper party following the death of the would-be party is the representative
appointed in the succession proceeding brought as a result of the death, not
the party’s estate. Reasoning that Lang was not a proper party, the magistrate
concluded that her citizenship could not be considered when determining
jurisdiction and removal was appropriate.
       Porter moved to amend his complaint in accordance with Federal Rule
of Civil Procedure 15, to add Professor Dorothy Jackson, a Louisiana resident,
who had been appointed as Lang’s succession representative. People Magazine
opposed this motion, arguing Porter’s only purpose in amending his complaint
was    to destroy diversity jurisdiction,    Porter had     never conclusively
demonstrated that Lang was a Louisiana citizen, and Professor Jackson’s
citizenship was tied to Lang’s. People Magazine further argued that the
propriety of removal is determined at the time of removal and so Professor
Jackson’s citizenship would have no bearing on the jurisdiction of the court.
       The magistrate recommended granting Porter’s motion for leave to file
his amended complaint under Rule 15 and remanding the action to the
Louisiana state court for lack of diversity jurisdiction under 28 U.S.C.
§ 1447(e).   People    Magazine   objected to the magistrate’s       report and
recommendation, arguing that Rule 25 forbids the substitution of a party who
was deceased before the appeal began and Porter had “failed to properly plead
the citizenship of Professor Jackson.” Importantly, however, People Magazine
did not argue that Professor Jackson’s addition to the litigation was barred
under Rule 15.
       Adopting the report and recommendation of the magistrate, the district
court granted Porter’s motion for leave and remanded the case to the 19th
Judicial District Court in Baton Rouge. The district court dismissed People
Magazine’s motion to stay the remand pending appeal. This occurred in
February of 2017.
                                       4
    Case: 17-30144     Document: 00514624838      Page: 5    Date Filed: 08/31/2018



                                   No. 17-30144
      People Magazine appealed, and now argues the district court abused its
discretion when it granted Porter’s motion to amend his complaint.
                                  JURISDICTION
      As a threshold issue, we must decide whether this court has jurisdiction
to review the district court’s order granting Porter’s leave to amend, in light of
its relationship to the order to remand the case for lack of diversity jurisdiction.
See Mitchell v. Carlson, 896 F.2d 128, 131–32 (5th Cir. 1990); Doleac ex rel.
Doleac v. Michalson, 264 F.3d 470, 477–79 (5th Cir. 2001). If we are without
jurisdiction, we must dismiss.
      The district court remanded Porter’s case to the Louisiana state court on
the authority of 28 U.S.C. § 1447(e), which states as follows: “If after removal
the plaintiff seeks to join additional defendants whose joinder would destroy
subject matter jurisdiction, the court may deny joinder, or permit joinder and
remand the action to the State court.” Usually courts of appeals have
jurisdiction to consider final decisions from district courts. 28 U.S.C. § 1291.
But, with limited exceptions, Congress has set a jurisdictional bar to appellate
review of district court orders granting remand. 28 U.S.C. § 1447(d) (“An order
remanding a case to the State court from which it was removed is not
reviewable on appeal or otherwise . . . .”); see Brookshire Bros. Holding v.
Dayco Prods., Inc., 554 F.3d 595, 598–99 (5th Cir. 2009).
      People Magazine acknowledges that this court has no jurisdiction to
review the district court’s order remanding the action to state court. Instead,
People Magazine argues that this court can review the district court’s order
allowing Porter to amend his complaint through the “collateral order doctrine.”
See Mitchell, 896 F.2d at 133. Under the collateral order doctrine, a small set
of interlocutory orders that meet certain conditions are deemed final. Cantu v.
Rocha, 77 F.3d 795, 802 (5th Cir. 1996) (discussing doctrine articulated in


                                         5
    Case: 17-30144      Document: 00514624838      Page: 6     Date Filed: 08/31/2018



                                   No. 17-30144
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546–47 (1949)). But,
“[i]nterlocutory appeal is the exception, not the rule.” Id.
      People Magazine relies principally on one case to support its position
that the collateral order doctrine applies here. In Doleac ex rel. Doleac v.
Michalson, this court decided whether it had jurisdiction under the collateral
order doctrine to consider the district court’s decision to allow an amendment
joining a party that resulted in both the destruction of diversity and remand
to the state court. 264 F.3d at 472. The Doleac court explained that the
collateral order doctrine “partially restrains the otherwise               preclusive
§ 1447(d).” Id. at 478. It stressed that, to satisfy the collateral order doctrine,
an amendment order must be both separable from the remand order and
collateral. And “the inquiries about separableness (whether § 1447(d) bars
review) 4 and collateralness (whether § 1291 bars review)” must not be
collapsed into one inquiry. Id. at 485.
      The Doleac court, drawing from the Supreme Court’s opinion in Cohen v.
Beneficial Indus. Loan Corp., held that to satisfy the jurisdictional demands of
§ 1291 under the collateral order doctrine, an order must (1) not be “tentative,
informal or incomplete,” (2) deal with “claims of right separable from, and
collateral to, rights asserted in the action,” (3) be effectively unreviewable on
an appeal from final judgment, and (4) be too important to be denied review.
264 F.3d at 489–91 (quoting Cohen, 337 U.S. at 546). We are without
jurisdiction to review People Magazine’s appeal challenging the district court’s
amendment order unless we conclude that the order satisfies all four of these
requirements.




      4 We assume without deciding that the amendment order is separable and so is not
barred from review by § 1447 because Porter does not seem to contest this point.
                                          6
    Case: 17-30144    Document: 00514624838      Page: 7   Date Filed: 08/31/2018



                                 No. 17-30144
      We look to the Doleac court’s application of the Cohen test for guidance.
The Doleac court encountered no problems concluding that the amendment
order before it “easily [met] the first two requirements of the collateral order
doctrine.” Id. at 490. It decided that the order was not tentative or incomplete
because the amendment “conclusively determined the disputed question” of
whether the party would be added to the litigation. Id. Moreover, the
amendment order was separable from, and collateral to, rights asserted in the
action, because the addition of the party to the lawsuit did not affect the
underlying merits of the negligence claim. Id.
      People Magazine argues along these lines that the order at issue here is
not tentative, informal, or incomplete because it definitively added Professor
Jackson to the litigation. And whether Lang is a party to the action does not
affect Porter’s underlying defamation claim. Porter does not seem to disagree.
So we assume without deciding that the amendment order satisfies the first
two requirements of the collateral order doctrine.
      Porter disagrees, however, that People Magazine can meet the third and
fourth requirements of the collateral order doctrine (i.e., whether the
amendment order would be effectively unreviewable on an appeal from a final
judgment and whether it is too important to be denied review). As to the third
requirement, the Doleac court explained that an order should not be deemed
effectively unreviewable on appeal if the order does nothing more than affect
the forum in which the suit will be heard. See 264 F.3d at 491. But in Mitchell
v. Carlson, this court held that it had appellate jurisdiction to review a
resubstitution order because it subjected an otherwise immune party to suit
and was therefore effectively unreviewable on appeal. See 896 F.2d at 133
(“[T]he district court subjected [the substituted party] to the burden of
defending a suit in state court, a burden from which she is entitled to be
immune.”). It is important to note that there is a key distinction between a
                                       7
    Case: 17-30144     Document: 00514624838     Page: 8   Date Filed: 08/31/2018



                                  No. 17-30144
party who has been improperly joined and a party who is immune from suit for
the purposes of the collateral order doctrine. If a party who is immune from
suit is subjected to a trial, the burden of undergoing the trial constitutes a
harm that is effectively unreviewable on appeal. See Doleac, 264 F.3d at 491.
By contrast, a “decision [regarding misjoinder] is not independently reviewable
under the collateral order doctrine.” In re Benjamin Moore & Co., 318 F.3d 626,
631 (5th Cir. 2002). Thus, an order that merely improperly joins a party cannot
satisfy the collateral order doctrine because it is effectively reviewable on
appeal.
      People Magazine introduces a novel argument on appeal as to why the
amendment order affects not only the forum, but also subjects Professor
Jackson to a trial that she otherwise would not have to endure. Specifically,
People Magazine argues that Porter’s claims against Professor Jackson are
subject to a one-year prescriptive period under Louisiana law. And because
Porter did not file his second motion for leave until more than eighteen months
after the articles were published, his claims are prescribed unless they relate
back to the date that Porter filed his original petition against People Magazine.
      Under Rule 15(c), if an amendment changes the party against whom a
claim is asserted, it relates back only if, within the period provided by Rule
4(m) for serving the summons and complaint, the party to be brought in by
amendment received notice of the action, will not be prejudiced, and knew or
should have known that the action would have been brought against it. FED.
R. CIV. P. 15(c). People Magazine contends that Rule 15 is not available to save
Porter’s late-filed claims against Lang’s succession representative because,
within the period provided by Rule 4(m), Professor Jackson did not receive
notice of Porter’s action or know that Porter’s action would be brought against
her. According to People Magazine, this is sufficient to satisfy Mitchell’s trial-


                                        8
    Case: 17-30144     Document: 00514624838     Page: 9   Date Filed: 08/31/2018



                                  No. 17-30144
burden requirement, and so the amendment order is effectively unreviewable
on an appeal.
      Porter articulates vague disagreement with People Magazine on this
point, but does not specifically address People Magazine’s argument. Because
this is a jurisdictional question, however, the court must examine the basis of
its jurisdiction on its own motion if necessary. See Hill v. City of Seven Points,
230 F.3d 167, 169 (5th Cir. 2000). As mentioned above, People Magazine failed
to raise this Rule 15/relation-back argument before either the magistrate or
the district judge. Even if People Magazine had raised its Rule 15 contention
before the district court, it would amount to an improper joinder argument.
People Magazine has not argued that Professor Jackson is immune from suit.
See Doleac, 264 F.3d at 491. Thus, the order is not effectively unreviewable on
appeal and fails to satisfy the requirements of the collateral order doctrine. See
In re Benjamin Moore, 318 F.3d at 631.
      This analysis also shows why the amendment order fails to satisfy the
fourth and final requirement of the collateral order doctrine (i.e., whether the
amendment order is too important to be denied review). An order that
improperly joins a party, but does not subject an immune party to a trial, is
not too important to be denied review. This is especially true here because
People Magazine failed to raise its Rule 15 argument before the district court.
Even if People Magazine could meet the other three requirements, we would
conclude based on this factor alone that we are without jurisdiction.
      These points must be considered in view of our precedent stating that
appellate review under the collateral order doctrine is the exception, not the
rule. Cantu, 77 F.3d at 802. Indeed, “[a]s its stringent requirements indicate,
the collateral order doctrine is not to be applied liberally. Rather, the doctrine
is extraordinarily limited in its application.” Doleac, 264 F.3d at 491 (quoting


                                        9
    Case: 17-30144   Document: 00514624838      Page: 10   Date Filed: 08/31/2018



                                 No. 17-30144
Ozee v. Am. Council on Gift Annuities, Inc., 110 F.3d 1082, 1091 (5th Cir.
1997)).
      Because People Magazine has failed to demonstrate that the district
court’s order granting Porter’s motion for leave to amend meets the final two
Cohen factors, we are without appellate jurisdiction.
      DISMISSED.




                                      10
