                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                       REVISED JUNE 28, 2005
                                                              June 14, 2005
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk

                            No. 04-30963



SHIRLEY FULFORD; DONALD DEROGERS; IRMA O. THOMAS,

                                               Plaintiffs-Appellees

                               versus

TRANSPORT SERVICES COMPANY; PROTECTIVE INSURANCE COMPANY,

                                               Defendants-Appellants




YOLANDA M. ABRAM; JACQUELIN GORDON, wife of; BOBBY GORDON, and on
Behalf of Those Similarly Situated,

                                               Plaintiffs-Appellees

                               versus

TRANSPORT SERVICES COMPANY,

                                                Defendant-Appellant



          Appeal from the United States District Court
              for the Eastern District of Louisiana


Before WIENER, DeMOSS and PRADO, Circuit Judges.

PER CURIAM:

     Appellant Transport Services Company (“Transport”) appeals the

district court’s order denying its motion to enjoin state court

proceedings.   We affirm.
                         I. FACTS AND PROCEEDINGS

     Appellees Shirley Fulford, Donald DeRogers, and Irma Thomas

(collectively     the   “Fulford    plaintiffs”)       filed       a   class   action

petition    in   Louisiana   state      court   against       Transport      claiming

damages from an alleged chemical spill that occurred on August 7,

2002 (the “Fulford suit”).         A second class action suit (the “Abram

suit”) was filed the following day in Louisiana state court by

Appellees    Yolanda    Abram,     Jacquelin        Gordon     and     Bobby   Gordon

(collectively     the   “Abram     plaintiffs”)        containing        essentially

identical allegations as the Fulford suit.                 Transport removed the

Fulford suit to the Eastern District of Louisiana based on federal

diversity     jurisdiction,      then    removed      the     Abram     suit    which

thereafter was consolidated with the Fulford suit.                         Both the

Fulford and Abram plaintiffs filed motions to amend their petitions

to add Dan Davis and Protective Insurance Company (“Protective”) as

defendants.      Davis, a non-diverse party, was the driver of the

transport truck at the time of the alleged spill.                       The Fulford

plaintiffs also filed a motion to remand their case to state court,

but this motion was denied by the district court as premature.                      One

week later, the district court denied the motions to amend the

complaints in both suits to add Davis.1                The district court, in

denying the motion to amend the complaints to add Davis, adopted

the magistrate     judge’s    findings       that    (1)     the   purpose     of   the

     1
       The motion to add Protective went unopposed by Transport
and was granted by the district court.

                                         2
amendment was to defeat diversity jurisdiction, (2) the plaintiffs

were dilatory in asking for the amendment, and (3) Transport and

Protective stipulated that they would be responsible for Davis’s

liability on the theory of respondeat superior, pretermitting any

possibility that the plaintiffs would suffer hardship if the

amendment was not allowed.

     The Fulford plaintiffs, at the invitation of the district

court, filed a motion for class certification, but the Abram

plaintiffs never filed for class certification. The district court

denied the Fulford plaintiffs’ motion for class certification, and

after denying a motion for reconsideration, denied permission to

the Fulford plaintiffs to bring an interlocutory appeal on the

question of class certification.

     Following the denial of class certification in the Fulford

suit, a new action, Smith v. Transport Services Co. (the “Smith

suit”), was filed in Louisiana state court.           The plaintiffs in the

Smith suit (the “Smith plaintiffs”), like those in the Fulford and

Abram suits, claimed damages arising from the same alleged August

7, 2002 chemical spill and sought class certification as well. The

Smith   plaintiffs   are    represented    by   the   same    attorneys   who

represent   the   Fulford    and   Abram   plaintiffs,       and   the   Smith

plaintiffs seek the same relief for the same cause of action.               A

review of the record shows that the state court complaints in the

Fulford and Abram suits are essentially identical to those in the

Smith suit complaint.      There are two differences, however, between

                                     3
the Fulford and Abram suits and the Smith suit:       (1) Davis is named

as a defendant in the Smith suit, and (2) different individuals are

named as class representatives in the Smith suit.

     Transport filed a motion in the Fulford and Abram actions to

enjoin the Smith suit, claiming that the purpose of the Smith suit

was to evade and subvert the purpose of the federal removal

statute.     Relying on our decision in Frith v. Blazon-Flexible

Flyer, Inc.,2 the district court held that an injunction was not

proper because the Fulford and Abram plaintiffs failed to allege

fraudulent joinder of Davis in their motion to enjoin the state

court proceedings in the Smith suit.       In a footnote at the end of

its order, the district court requested further clarification of

Frith,    noting   that   it   “plainly   appear[s]   that   [the   Smith]

plaintiffs’ motive in naming Davis was in fact to avoid removal.”

Transport appeals the district court’s order denying Transport’s

motion to enjoin the state court proceedings in the Smith suit.

                               II. ANALYSIS

     Although Transport purports to raise two issues on appeal, it

is essentially one issue:        whether the district court erred in

denying Transport’s motion to enjoin the Smith suit proceedings in

state court. Transport contends that there is a second issue, even

though it is really a subsidiary of the first issue:                Can a

district court enjoin a state court       proceeding under 28 U.S.C. §


     2
         512 F.2d 899 (5th Cir. 1975).

                                     4
1446(d) —— an exception to the Anti-Injunction Act, 28 U.S.C. §

2283 —— in the absence of a holding by the district court that the

plaintiffs in the state court suit fraudulently joined a non-

diverse defendant?      There is no need for us to address this

subsidiary question, however, as the first question can be answered

in the negative without reaching the subsidiary one.          Once the

district    court   denied   class   certification,   the   Smith   suit

plaintiffs were no longer implicated in the Fulford and Abram

proceedings, and were therefore free to bring their own suit in

state court.

     The Anti-Injunction Act states that

     [a] court of the United States may not grant an
     injunction to stay proceedings in a State court except as
     expressly authorized by Act of Congress, or where
     necessary in aid of its jurisdiction, or to protect or
     effectuate its judgments.3

The Act, on its face, “is an absolute prohibition aaginst [sic]

enjoining state court proceedings, unless the injunction falls

within one of three specifically defined exceptions.”4      “Any doubts

as to the propriety of a federal injunction against state court

proceedings should be resolved in favor of permitting the state

courts to proceed in an orderly fashion to finally determine the

controversy.”5 Transport limits its argument to the application of

     3
         28 U.S.C. § 2283.
     4
       Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398
U.S. 281, 286 (1970).
     5
         Id. at 297.

                                     5
the “expressly authorized” exception to § 2283; specifically, that

the district court was authorized to enjoin the Smith suit by the

language of the removal statute, 28 U.S.C. § 1446.   Section 1446(d)

has long been recognized as one of the statutory exceptions to §

2283.6    It states that once removal has taken place, “the State

court shall proceed no further unless and until the case is

remanded.”7

     In Frith, the plaintiff’s original case was removed from state

court to the district court on the basis of diversity jurisdiction.

Following removal, the plaintiff filed a second suit in state court

on the same claim, but joined a resident defendant. The defendants

removed the second case, relying on the doctrine of fraudulent

joinder.8     The plaintiff filed a motion to remand the removed

second case, and the district court granted the remand, explicitly

holding that the case did not fit within the doctrine of fraudulent

joinder. The Frith defendants responded by obtaining an injunction

in the first, properly removed case, prohibiting the plaintiff from

proceeding in the state action.      We reversed that injunction,

holding that the district court’s determination that there was no

fraudulent joinder in the second one was an implicit holding that

     6
       Frith, 512 F.2d at 901 (citing Toucey v. New York Life
Ins. Co., 314 U.S. 118 (1941)). The Frith court was looking at §
1446(e), changed in the 1988 amendments to § 1446(d).
     7
         28 U.S.C. § 1446(d).
     8
       On removal, the second case was assigned to a different
district court judge.

                                 6
“the second suit was not brought in an attempt to subvert the

purposes of the removal statute and was not aimed at defeating

federal jurisdiction.”9

       In the instant case, the district court interpreted Frith as

requiring a finding of fraudulent joinder before it could conclude

that a second lawsuit filed in state court was meant to subvert the

purposes of the removal statute.               Transport insists that this was

error, arguing that a finding of fraudulent joinder is not a

prerequisite to a showing that a second suit was meant to subvert

the    purposes     of   the     removal   statute.       Transport      points   to

statements by the district court that the Smith plaintiffs named

Davis to avoid federal jurisdiction.               It is unnecessary, however,

for us to reach this question.                 Once the district court refused

class certification in the Fulford suit, the Smith plaintiffs were

no    longer    involved    in    the   Fulford    and   Abram   suits    and   were

therefore free either to (1) attempt to intervene or (2) bring

their own suit.10        This stands in clear contrast to Frith, in which

       9
            Frith, 512 F.2d at 901.
       10
       Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 354
(1983) (“Once the statute of limitations has been tolled, it
remains tolled for all members of the putative class until class
certification is denied. At that point, class members may choose
to file their own suits or to intervene as plaintiffs in the
pending action.”). The Smith plaintiffs were in fact required to
bring suit in order to protect their potential right to recover.
See Stone Container Corp. v. United States, 229 F.3d 1345, 1355
(Fed. Cir. 2000) (tolling of statute of limitations for putative
class members ends with denial of class action certification);
Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1391 (11th
Cir. 1998) (same).

                                           7
the same plaintiff filed both the first and second lawsuits.

Section 1446(d) is not implicated here because, following the

district court’s refusal to certify a class in the Fulford suit,

there was no removal jurisdiction to protect vis-à-vis the Smith

plaintiffs —— they were no longer a part of the removed Fulford and

Abram suits.11

     None of the other cases to which Transport cites supports its

position.    The Eighth Circuit decision in Kansas Public Employees

Retirement System v. Reimer & Koger Associates, Inc.12 (“KPERS”) is

distinguishable because, like Frith, the same plaintiff in the

federal suit filed the second state court suit.    The KPERS court

made this distinction explicit when it stated the principle from

Frith that it relied on: “[A]fter removal the plaintiff cannot file

essentially the same case in a second state action to subvert

federal jurisdiction.”13

     Similarly, in Lou v. Belzberg,14 the plaintiff first combined

state and federal claims in a state court suit, alleging derivative



     11
       The Appellees argue that the denial of certification was
equivalent to a remand, and therefore satisfies the express
condition in § 1446(d) that the state court not proceed “unless
and until the case is remanded.” Appellees argument is incorrect
—— the denial of certification was not a remand, it was more akin
to the dismissal of the putative class plaintiff’s without
prejudice.
     12
          77 F.3d 1063 (8th Cir. 1996).
     13
          Id. at 1069 (emphasis added).
     14
          834 F.2d 730 (9th Cir. 1987).

                                  8
claims on behalf of a corporation and claims on behalf of a class

comprising the corporation’s shareholders.           After the defendants

removed the first case, a second plaintiff, who was represented by

the same attorneys and who was also a shareholder, filed a second

suit in state court in which she asserted additional state law

claims and omitted the federal claims.        The federal district court

in the removed case enjoined the state court suit.                The Ninth

Circuit recognized that a federal court must have the ability to

enjoin state proceedings that are filed to subvert the purposes of

the relevant federal removal statute.15        On the facts before it in

Belzberg, however, the Ninth Circuit reversed the injunction on the

ground that it was barred by the Anti-Injunction Act.           The district

court had not ruled that the second suit was “fraudulent or an

attempt to subvert the purposes of the removal statute,”16 and the

second suit involved “different plaintiffs, additional counsel,

additional      defendants,   and   only   state   claims.”17    There   was

therefore no basis for concluding that the new suit was merely a

refiling of the old suit in an attempt to subvert the purposes of

the removal statute.

     Belzberg, although arguably more apposite than Frith or KPERS,

is nevertheless distinguishable on the ground that the plaintiff/



     15
          Id. at 741.
     16
          Id.
     17
          Id.

                                      9
shareholder filed the second suit while the shareholder class

action was still intact in the federal court; i.e., the second

plaintiff was still a member of the plaintiff class in the federal

suit.     Here, the Smith plaintiffs ceased having any connection to

the Fulford and Abram suits when class certification was rejected

in the Fulford suit and abandoned in the Abram suit.   This left the

Smith plaintiffs with no recourse but to file their own suit, and

they were free to do so.

     Transport argues in its reply brief that the Smith plaintiffs

did not have to file suit in state court to protect their rights

because they could have attempted to intervene in the Fulford and

Abram actions.     Although the Smith plaintiffs appear to have had

that option, they also had the option of filing their own suit.18

Nothing required them to exercise the intervention option; the

choice was theirs to make.

     Transport might have prevailed had it removed the Smith suit

on a claim of fraudulent joinder of Davis, but for reasons not

apparent on appeal, Transport never pursued this alternative. The

district court’s order denying Transport’s motion for an injunction

of state court proceedings in the Smith case is

AFFIRMED.




     18
       Crown, Cork & Seal Co., 462 U.S. at 354 (after denial of
class certification, “class members may choose to file their own
suits or to intervene as plaintiffs in the pending action”).

                                  10
