In Re: Calvin Levy,
No. 22-30622
United States Court of Appeals for the Fifth Circuit
October 26, 2022
Petition for a Writ of Mandamus to the United States District Court for the Eastern District of Louisiana No. 2:21-CV-1993
Before KING, JONES, and SMITH, Circuit Judges.
The plaintiff, Calvin Levy, petitions for a writ of mandamus directing the district court to remand this removed action to state court for want of federal-court jurisdiction. This matter arises from a traffic collision. Levy is a citizen of Louisiana,
Levy initiated an action in Louisiana state court against the three defendants. Zurich—the only defendant that had received service of process—promptly removed to federal court, asserting that removal was proper under
The problem for these defendants, however, is the passage in
In New York Life Insurance Co. v. Deshotel, 142 F.3d 873 (5th Cir. 1998), we explained that the complete-diversity requirement cannot be circumvented through failure to serve a party that would otherwise destroy complete diversity. Rather, when determining whether complete diversity exists, a court looks to the parties named in the action:
A non-resident defendant cannot remove an action if the citizenship of any co-defendant, joined by the plaintiff in good faith, destroys complete diversity, regardless of service or non-service upon the co-defendant. Whenever federal jurisdiction in a removal case depends upon complete diversity, the existence of diversity is determined from the fact of citizenship of the parties named and not from the fact of service.
Id. at 883 (citing, inter alia, Pullman Co. v. Jenkins, 305 U.S. 534, 540-41 (1939)). The reason for this rule is straightforward: In an effort to manufacture complete diversity, a non-forum defendant “should not be permitted to seize an opportunity to remove the cause before service upon the resident co-defendant is effected.” Pullman, 305 U.S. at 541.2
The defendants mainly rely on Texas Brine Co., LLC v. American Arbitration Association, Inc., 955 F.3d 482 (5th Cir. 2020), where we authorized the use of snap removals in this circuit. The parties in Texas Brine were completely diverse; indeed, we began our analysis by confirming as much. Id. at 485 (“Here, the district court had subject-matter jurisdiction because each defendant was diverse from the plaintiff.“). Furthermore, the extra-circuit cases we relied on in Texas Brine all confirmed that their parties were completely diverse as well.3 “[T]he forum-defendant rule is a procedural rule and not a jurisdictional one.” Texas Brine, 955 F.3d at 485. Accordingly, it cannot confer jurisdiction where jurisdiction does not exist.
The parties disagree as to whether Deshotel or Texas Brine is the precedent that informs jurisdiction in this case. The answer is twofold. First, if those decisions were in conflict, the earlier one—Deshotel—would control under this circuit‘s rule of orderliness. Second, it turns out that there is no conflict, as we now explain.
The key is that where—as here—there is no other basis for subject-matter jurisdiction, no case can be successfully removed unless diversity is complete. That follows from the fact that a case is not removable if the plaintiff could not have brought it in federal court in the first instance, and diversity must be complete for a matter relying solely on diversity jurisdiction to be filed initially in federal court. A further limitation is that a defendant may not remove an otherwise-removable matter if any properly joined defendant is a citizen of the forum. But under
That is what Deshotel says: Complete diversity is still required even if one or more defendants have not been served; citizenship is what counts. So in a
But that reasoning is inapplicable here, because, as in Deshotel, complete diversity is wanting. A defendant‘s “non-diverse citizenship cannot be ignored simply because he was an unserved defendant.” Deshotel, 142 F.3d at 883.
The ruling in Deshotel is absolute and admits of no exceptions. Despite that Levy relied heavily on Deshotel in his motion to remand, the district court, in denying that motion, never mentioned it. It is also telling that in their opposition to the mandamus petition, the defendants omit any reference to Deshotel. And though it would have been helpful for purposes of reconciling the two decisions, Texas Brine does not cite Deshotel.
In sum, the critical distinction is whether diversity is complete. In that regard, Levy, in his mandamus petition, correctly posits that ”Texas Brine is consistent with Deshotel,” based on the fact that “[i]n Texas Brine, unlike [Levy], diversity was complete. Had the Texas Brine plaintiff wanted, it could have filed its case originally in federal court. Mr. Levy, by contrast, could not have done so.”
Because the only basis for removal in this case was diversity jurisdiction, and complete diversity is lacking, the district court must dismiss for want of jurisdiction. Confident that the court will carry out this directive, we DENY the petition for writ of mandamus without prejudice.4
Certified as a true copy and issued as the mandate on Oct 26, 2022
Attest:
Lyle W. Cayce
Clerk, U.S. Court of Appeals, Fifth Circuit
Notes
Although [
16 JAMES W. MOORE ET AL., MOORE‘S FEDERAL PRACTICE § 107.52[1], at 107-77 to 107-78 (3d ed. 2022). The only Fifth Circuit decision that the treatise cites is Deshotel, which is consistent with the decisions of the other circuits that have decided the issue. From the other federal circuits, Moore‘s cites Pecherski v. Gen. Motors Corp., 636 F.2d 1156, 1160 (8th Cir. 1981), and Preaseau v. Prudential Ins. Co., 591 F.2d 74, 78–79 (9th Cir. 1979).