In Re: Calvin Levy
52 F.4th 244
5th Cir.2022Background
- Levy (plaintiff) sued three defendants after a traffic collision in Louisiana: driver Emile Dumesnil (Louisiana citizen), Dynamic Energy Services International, LLC (claims Louisiana citizenship), and Zurich American Insurance Company (diverse).
- At the time Zurich removed the case to federal court, only Zurich had been served; Dumesnil and Dynamic had not been served.
- Zurich invoked removal under 28 U.S.C. § 1441(b)(2) (the forum-defendant rule), arguing removal was permitted because the forum defendant (Dumesnil) was unserved.
- Levy moved to remand, arguing complete diversity was lacking because at least one named defendant (Dumesnil or Dynamic) shared Louisiana citizenship with him.
- The Fifth Circuit held that where diversity is the sole basis for federal jurisdiction, complete diversity is required based on the citizenship of all named parties regardless of service; because complete diversity was lacking, the case must be remanded/dismissed for lack of jurisdiction.
- The court denied the mandamus petition without prejudice, directing the district court to correct its ruling in light of the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal under §1441(b)(2) is proper when a forum defendant is named but unserved and complete diversity is lacking | Levy: Removal improper; citizenship of all named defendants controls regardless of service, so diversity incomplete | Zurich: Removal proper because the forum defendant was unserved (snap removal permitted) | Removal improper; complete diversity is required based on named parties' citizenship; unserved non-diverse defendant cannot be ignored |
| Whether Texas Brine's authorization of “snap removals” conflicts with Deshotel | Levy: Deshotel controls; Texas Brine limited to cases with complete diversity | Defendants: Texas Brine permits snap removal and supports removal here | No conflict: Texas Brine applies only where complete diversity exists; Deshotel governs when diversity is incomplete |
| Whether mandamus directing remand should issue | Levy: Seeks mandamus to compel remand for lack of jurisdiction | Defendants: Opposed, relying on Texas Brine and snap-removal theory | Mandamus denied without prejudice; court instructs district court to dismiss/remand for lack of subject-matter jurisdiction |
Key Cases Cited
- Strawbridge v. Curtiss, 3 Cranch 267 (U.S. 1806) (establishes requirement of complete diversity)
- New York Life Ins. Co. v. Deshotel, 142 F.3d 873 (5th Cir. 1998) (holds citizenship of all named defendants controls for diversity regardless of service)
- Texas Brine Co., LLC v. American Arbitration Ass'n, Inc., 955 F.3d 482 (5th Cir. 2020) (authorizes snap removals but applies where complete diversity exists)
- Pullman Co. v. Jenkins, 305 U.S. 534 (U.S. 1939) (discusses limits on tactical removal to manufacture diversity)
- Corfield v. Dallas Glen Hills LP, 355 F.3d 853 (5th Cir. 2003) (reaffirms complete-diversity requirement for §1332 jurisdiction)