Kale Flagg v. Denise Elliot

prove personnel- prima facie not' aggravated his have

basket -could incident to the extent he

preexisting condition preroga the ALJ’s respect

claims. Id. We con these determinations

tive make reversing the Board erred

clude that rejection of Meeks’s back

the ALJ’s Gold, 424 Fed. claims.

neck

Appx. at 278-79. Board’s

Accordingly, we REVERSE Meeks, awarding ex-

judgment benefits conclusion that the Board’s

cept as to to benefits for

Meeks entitled tooth, which we AFFIRM. We

missing Order, June 2013 ALJ’s

REINSTATE portion which denies

except missing expenses dental

Meeks’s

tooth.11 FLAGG, Plaintiff-Appellant

Kale CORPORATION; Me

STRYKER USA, Incorporated,

mometal

Defendants-Appellees.

No. 14-31169. Appeals,

United States Court

Fifth Circuit.

March first, September 11. We reinstate and affirm the June LHWCA in its 2012 Deci- Order, September than the ALJ’s is somewhat from the ALJ’s rather sion. It unclear Order, September findings because it fell was not an abuse Order where his authority specific burden-shifting Board’s more of an to remand for within framework three-step within the framework LHWCA claim. findings DAVIS, Judge: W. EUGENE Circuit banc to decide en took this We by dis- whether the district court erred im- .missing the non-diverse defendants diversity joined exercising properly and remaining jurisdiction diverse de- over that the district fendants. We conclude concluding by that court did err non- improperly joined had diverse defendants against his claims those not exhausted had Therefore, required statute. juris- court the district exercised over the diverse defendants which diction remained the case.

I. Elliot,. Dr. Denise West Jef- Defendants ' Center, Foot and ferson Medical and the Ohlmeyer, Ohlmeyer Furra Kristina Lee Orleans, LA, L.L.C., (collectively the “Medical Ohlmeyer, Ankle Center & New Defendants”) performed surgery Plaintiff-Appellant. and Flagg Plaintiff-Appellant Kale cared Moore, Unnithan Douglas John Meera implanting joint in a toe connection with & Urquhart Sossamon, Fritchie Irwin Flagg’s implant foot. The toe Orleans, LA, Moore, L.L.C., Robert New manu- implanted was Medical Defendants & Jr., Roach, Lopez, Manuel M. Roach by Defendants-Appellees Stryker factured L.L.P., Houston, Newton, TX, for Defen- Corporation Incorporated, Memometal and dants-Appellees. (collectively “Manufacturing De- USA Counsel, Samp, Chief Richard Abbott fendants”). Foundation, Washing- Washington Legal ton, DC, McReynolds, Esq., Joseph Lee Flagg surgery was un- claims Joseph Attorney, Trial Andrew Senior the toe im- alleges successful. He Marshall, Baer, Nancy Deutsch Esq., Jane him undue and that plant pain, has caused L.L.P., Orleans, LA, for Kerrigan, New required surgeries further correct he Amicus Curiae. alleges that problem. He therefore mal- Medical committed Defendants by negligently performing the sur-

practice ini- gery. alleges He that the toe further Manufacturing plant manufactured n STEWART, Judge, Chief and Before and unreason- Defendants was defective SMITH, JOLLY, DAVIS,-JONES, ably dangerous. OWEN, DENNIS, CLEMENT, PRADO, in Louisiana state Flagg filed lawsuit ELROD, SOUTHWICK, HAYNES, COSTA, asserting malprac- medical HIGGINSON, court state law GRAVES, and against the Medical Defendants Judges. tice claims Circuit court, . liability relying claims The our deci products law Allstate, Manufacturing Corp., sions in Defendants. Melder v. Cir.2005) (5th failed to 328 and Holder v. Abbott parties agreed All Inc., 444 Laboratories, De- F.3d 383 Cir. Medical 2006), agreed required by in the manner had fendants joined Act before the Medical The Malpractice Louisiana Defendants. therefore dismissed Medical Defen filing this prejudice. dants from the case without Manufacturing The removed then exercised district court to federal on the basis remaining over the defendants diversity jurisdiction. Flagg is a citizen Flagg’s action dismissed Louisiana, Manufacturing Defen- Manufacturing. prejudice Defendants with than are' citizens of other dants states pursuant Rule of Civil Federal Proce Therefore, Flagg and the Louisiana. 12(b)(6)., dure Manufacturing completely are Defendants Flagg court’s appealed judg- the district However, Defen- the Medical diverse. Although Flagg ment. did not- challenge dants, citi- Flagg, iike are all Louisiana subject jurisdic- matter district court’s zens. tion on sua appeal, considered Removal, Manu- In their Notice of sponte court properly whether the district facturing argued. Flagg Defendants that diversity jurisdiction over exercised prohibited filing against suit panel majority case. The concluded Medical failed to Defendants because he improp- the Medical were Defendants administratively his medical mal- exhaust joined erly and directed the district court practice filing claims before lawsuit as to remand the case to court.1 For state required by The Louisiana law. Manufac- reason, reach the turing argued that Defendants therefore propriety of the Rule district court’s Flagg joined De- the Medical 12(b)(6) Manufacturing dismissal fendants, such that the district court could Defendants. jurisdiction exercise over the We took this case en banc decide case. whether district correctly court dis- Manufacturing Shortly after the Defen- against missed the action the Medical De- case, Flagg dants removed moved improperly joined fendants as and exer- stay the case him to to allow jurisdiction Manufacturing cised over the Defendants the Medical as Defendants. required law. The Louisiana

court denied the motion. II. may then ar- diversi- Manufacturing The federal exercise Defendants that,

gued ty jurisdiction a civil action failed to exhaust over between if his claims Defendants of different the amount in Medical citizens States suit, $75,000.2 An district court should out-of- controversy exceeds may generally as improp- dismiss state remove defendant erly joined disregard citizenship ease filed a federal district their court diverse, if purposes diversity jurisdiction. parties the amount court are 1332(a)(1). Stryker Corp., 801 F.3d 456 2. 28 U.S.C. Cir.2015), vacated, (2015). met, “to plaintiff if the is unable establish controversy requirement joined is the non-diverse interest a cause action

none “of the citi- as defendants the test joined party served state court.”8 in which such action is zen the State “is the defen- whether brought.”3 is no has dant demonstrated recovery jurisdiction Ordinarily, diversity re “In this against an in-state defendant.”9 diversity—-if any plaintiff complete quires join- of the inquiry purpose the motive same defen is a citizen of the State is not of in-state rele- der defendants diversity jurisdiction does not dant, then vant.” However, plaintiff improper if the exist.4 defendant, then joins ly a non-diverse eases, In most wheth determine citizenship of may disregard the any possibility recov er the defendant, the non-diverse defen dismiss defendant, ery against the non-diverse case, subject and exercise from the dant 12(b)(6)-type a Rule should.“conduct remaining di jurisdiction matter over the allegations analysis, looking initially at verse defendant.5 complaint whether the determine courts have Federal complaint a claim under state law states subject jur own matter to determine their Ordinarily, against the in-state defendant. context, the court has isdiction.6 In this 12(b)(6) a plaintiff if a can Rule survive a obligation whether determine improper joinder.”11 challenge, is no joined party a plaintiff improperly has jurisdiction.7 diversity defeats federal However, plaintiffs com where the plaint has “misstated or omitted discrete its standard Court articulated This propriety facts that would determine banc joinder in its recent en improper “pierce joinder,” may of court instead v. Illinois Central Smallwood decision Smallwood, summary pleadings and conduct a in explained Railroad Co. In we 12 summary inquiry ap- “is improperly quiry.” party -is Such that a non-diverse 1441(a)-(b). improper join- may A find federal court also 3. Id. "actual der where the has committed (3 Curtiss, pleading of facts.” fraud Strawbridge E.g., 7 U.S. 4. 646-47). Travis, (quoting Cranch) 267, (1806). at This Id. 326 F.3d 2 L.Ed. 435 aspect implicate case does not doctrine. Stamping Enameling E.g., 5. Nat’l & Wecker v. 184, Co., 27 51 204 U.S. 9. Id. (1907); 430 v. Ill. Cent. R.R. L.Ed. Smallwood is consistent The Smallwood standard 568, (5th Cir.2004) (en Co., 385 572-73 F.3d longstanding Supreme precedent. denied, 992, banc), 125 S.Ct. cert. Wecker, 183-86, 204 U.S. at 27 S.Ct. 184. 1825, (2005). 755 161 L.Ed.2d Smallwood, 10. 574. F.3d at Corp., E.g., In Gas 303 F.3d 6. re Transtexas (5th Cir.2002) (citing Scherbat 576-77 Ry. (citing City 11. Id. McKee v. Kan. S. at 573 Co., 288, 290 skoy Co., (5th Cir.2004); 125 F.3d v. Halliburton 358 F.3d Parks (5th 1997)). Times, Co., Cir. 308 F.2d v. New York 1962)). (5th Cir. Wecker, 185-86, E.g., U.S. 7. (citing RJR Nabisco 184; Smallwood, Badon 385 F.3d at 572-73. (5th Cir.2000)). F.3d 389 n. Smallwood, Conducting summary inquiry is also con- (quoting Travis Cir.2003)). longstanding Supreme Court Irby, sistent with 646-47 propriate only identify presence erly joined of the Medical Defendants. Con- facts that undisputed sidering discrete and would entirely fact was consistent preclude plaintiffs recovery against [the] with Smallwood’s authorization to conduct the in-state defendant.”13 The to a decision “Rule 12(b)(6)-type analysis”16 to “identi- fy pierce pleadings presence “lie[s] within the dis- discrete undisputed cretion the trial court.”14 facts that preclude plaintiffs would [the] recovery against the in-state defendant.”17

Crucially, “[j]urisdictional facts below, For reasons set forth removal, are time of determined at.the correctly concluded that by subsequent events.”15 deter Flagg could not “establish cause ac- mine improperly whether a tion [the Defendants] Medical joined defendant, a non-diverse the district court” time at the the Manufacturing plaintiffs possibili must examine the the case removed because he ty of recovery against that defendant at had exhausted claims before inquiry the time This removal. must be It that Flagg suit.18 follows regardless made whether court ex Defendants,-and joined the Medical surviving amines the plaintiffs chance district court exercised 12(b)(6) or, instead, challenge Rule con Manufacturing over the Defen- ducts a summary inquiry by piercing the dants. pleadings. A.

III. a motion in filed the dis The Louisiana Malprac asking (“LMMA”) trict court stay the ease so tice Act provides he in relevant could exhaust part Medi “[n]o action health care .his so, cal doing By provider Defendants. con may ... commenced ceded that he failed to exhaust his medical proposed court before the com claimant’s malpractice filing This plaint presented before suit. has been to a medical claims only concession the fact panel.”19 Supreme was outside the The review complaint that the district court interpreted provision consid Louisiana has this to ered to Flagg improp- only determine whether not require plaintiff present to Wecker, 183-86, Cir.1994). precedent. (5th By filing 204 U.S. at F.3d 1343 n. 6 (holding 27 S.Ct. 184 stay, Flagg public court his district motion in a admitted to by considering err testimony court record that he to exhaust his affidavit failed Thus, "cases, determining plaintiff when whether im- claims. this is not one of those defendant). number,” properly joined hopefully a non-diverse few in in which a district summary inquiry” court must "conduct to Smallwood, (citing 13. at 573-74 Tra- plaintiff improperly joined determine that the vis, 648-49). defendant, 326 F.3d at Smallwood, the non-diverse Rather, F.3d is a mine-run im at 573. this 14. Id. at 573. proper that can be resolved 12(b)(6)-type analysis." "Rule Co., Prop. 15. Louisiana v. Nat’l & Am. Cas. Smallwood, (citing 17. See 573-74 F.3d (5th Cir.2014). 746 Travis, 648-49). 326 F.3d at Smallwood, 16. 385 F.3d at 573. Travis, (quoting See id. at 573 326 F.3d at 12(b)(6) “deciding 646-47). Even when motion dismiss, may permissibly a court refer to mat Connick, 40:1231.8(B)(l)(a)(i). public ters of record.” Cinel v. La.Rev.Stat. Ann. B. panel,

claim to a medical review but-also rendered, wait its ex- panel until “the Our prior conclusion is bolstered our the merits of the com- pert opinion on v. Allstate Corp., decisions in Melder plaint” filing exceptions before suit.20With (5th Cir.2005) F.3d 328 and Holder v. Ab case,21 of this “the inapplicable to the facts Laboratories, bott 444 F.3d 383 dismissed”, plaintiffs be without suit must Cir.2006), panels different two which satisfy prejudice fails to this if the this Court that a non-diverse held defen suit.22 before requirement exhaustion if joined dant is seriously does not appeal, Flagg On dis- fails to his claims before filing qualify pute that the Medical Defendants t . sui provider[s]” “health care within plaintiffs in claimed Melder Flagg meaning Although of the LMMA. unlawfully set discriminatory defendants presented malpractice insurance Most rates.24 defendants to a re- Medical Defendants medical who companies were insurance were di- court, filing suit in panel view before However, verse from one of plaintiffs. had its medical not’rendered defendants, the Louisiana Insurance Flagg expert opinion filed this before (“LIRC”), Rating Commission was not di- Nor medical its had the rendered Nevertheless, the plaintiffs verse. Manufacturing Defen- opinion adequate not exhausted the “ha[d] admin- case to court. removed federal dants provided by istrative remedies Louisiana Therefore, complied had respect law” with to their claims requirement exhaustion LMMA’s LIRC, we there “no concluded was time of removal. might reasonable basis Plaintiffs able Manufacturing if the De- Consequently, against the sole recover ... non-diverse not removed this case' fendants had defendant; Thus, plaintiffs LIRC.”25 doubt, court, is no LIRC, improperly joined had and the dis- required state court would have been trict ju- exercised prbperly from the the Medical Defendants dismiss risdiction over the case.26 case, that, It at the time remov- follows al, Likewise, plaintiffs unable cause Holder “establish sued against the [Medical Defendants] action combination of diverse and non-diverse de- injuries resulting state court.”23 fendants for child- citizenship discounted the vaccines.27 “The hood Vaccine Act re- quires Medical Defendants. ‘for a that claims vaccine-related Smallwood, Sys., 20. 23. See (quoting Delcambre v. Blood 893 So.2d 385 F.3d at 573 (La.2005) added). Travis, 646-47). (emphasis 326 F.3d at emphasizes 21. repeatedly The dissent 24. 404 F.3d at 330. parties “the waive can the medical review process ways.” in several irrelevant That is 25. Id. 332. have not medi- waived the Thus, process Flagg cal review this case. 26. Id. complete required the medical review process filing before suit. 27. 444 385-86. Binder, E.g.,

22. Gele 904 So.2d (citing (La.Ct.App.2005) Krupkin, Bennett v. (La.Ct.App.2002)). So.2d correctly brought-in must first Medical injury death’ dismissed the Defen- joined. dants as States Court of Federal the United Suit in courts is Claims. state and federal argues Flagg dissent —and unless and until has been barred agrees distinguishable this case is —that compliance” require- this exhaustion from and Holder because the Melder ad plaintiffs in ment.28 Because the Holder procedure ministrative under the LMMA initially file claims had failed to their is not “comprehensive” designed a scheme against the non-diverse in the defendants finally adjudicate plaintiffs malprac a Claims, Vaccine Act “the fore- tice not persuaded. claim. are Flagg We has no authority support cited argu the ... suit the non-di- close[d] Indeed, exception ment. with the of verse defendants.”29 We therefore held case, panel majority in this no court has plaintiffs’ “joinder of the non- distinction, adopted ever such a and for was improper diverse defendants and re- reason; good that'requires rule courts to mand court was not warranted.”30 individually statutory examine each state logic of Melder and Holder applies scheme to it determine whether is “com equally here. Because prehensive” “adjudicative” is neither complete process medical review administrable nor sensible.31 Melder and suit, filing explicitly before LMMA if bright-line Holder establish rule: him suing prohibited Medical requires statute plaintiff to exhaust his court. suit, filing remedies before administrative recovery against had no statutory we enforce that mandate as writt Defendants, and the en.32 (citing plaintiff ERISA “[a]n 28. Id. at 387-88 U.S.C. 300aa- must exhaust his pursuing remedies before a claim federal 11). court”). Respect legislatures for state coun- Id. enforcing 29. sels in favor of state exhaustion just statutes as we enforce federal exhaustion at 387. statutes. argues The dissent the above-cited Friend, 77, 79, 31. Corp. Hertz because, cases are under fed- irrelevant these (2010) L.Ed.2d 1029 schemes, eral exhaustion to exhaust is failure ("[A]dministrative major simplicity is virtue ¿n defense, jurisdic- affirmative merits (citing in a statute.” Sisson v. suggests tional bar. The dissent that district 358, 375, Ruby, 497 U.S. joinder improper not find should (Scalia, J., (1990) concurring L.Ed.2d 292 defense, basis even the where, of an affirmative judgment))). here, he concedes filing failed exhaust claims Indeed, requires when a federal statute Court, following This Smallwood's di- exhaustion, consistently the federal courts re rection, consistently found plaintiffs quire their claims before non-jurisdictional where a affirmative suit, those dismiss claims that the (such limitations) con- defense as statute of has not exhausted. Jones plaintiff’s clusively bars 199, Bock, 212, 910, 166 Boone v. Citi- defendant. See the non-diverse (2007) (holding (5th L.Ed.2d 798 that unexhausted 382, Cir.2005) group, 416 F.3d 391 Litigation claims under the Prison Reform Act (holding.that "joinder of the non-diverse court”); brought Indep. in “cannot be M.L. v. appellees plaintiff’s improper” because Dist., (5th 424, Fed.Appx. 428 Cir. appellees Sch. 2011) ("Exhaustion "against claims non-diverse required long by is so as conclusively residual barred [we]re limitations”); Texaco, Inc., seeking plaintiff remedy some under is statute of Bell v. (hold- IDEA.”); Bank, Cir.2012) 587, (5th Fed.Appx. Nat’l Harris Trustmark Cir.2008) joined’-’ ing Fed.Appx. (explaining be- that estate "was are de- the Medical Defendants

C. fendants in this case. argues that the exhaustion also Flagg re- medical now moot because issue is IV. expert opinion re- an panel issued

view sum, con- correctly In the district court 17, 2015, September garding his claims Flagg improperly joined the cluded initially sued Flagg year after over not Flagg did Medical Defendants argument is This Medical Defendants. required his claims as statute exhaust above, “[jurisdiction- noted As meritless. parties. The district court against those at the time al facts are determined .properly therefore the Medical dismissed subsequent removal,, events.”33 case and exercised panel Flagg completed the medical had not Flagg’s remain- diversity jurisdiction over at the time the Manufac- process review against, Manufacturing De- ing claims removed the case. turing. Defendants por- affirm that We therefore fendants. Thus, facts as measuring the tion of the district court’s order. removal, the time of they existed panel majority Because the ordered claims Flagg’s unexhausted to remand this case to state district court to dis- were doomed Medical Defendants court, not address the dis- panel missal,- possi- no had and therefore ruling trict court’s on the merits bility recovery against the Medical De- 12(b)(6) Manufacturing Defendants’ Rule fendants. therefore return the case motion. We to back to review the district Furthermore, Louisiana have dismissing Flagg’s claims court’s order squarely that a must held those defendants. medical, panel process review suit; an filing if the obtains part even and RETURNED AFFIRMED suit, suit expert opinion proceedings. after for further premature remains nevertheless and HAYNES, joined by Judge, Circuit preju- the suit without must dismiss DENNIS, GRAVES, Circuit ELROD and Thus, though Flagg even has now dice.34 Judges, concxxxring dissenting: completed process, the medical review v. Illi- prior his failure exhaust before decision Smallwood does Our cure couid; Co., filing this The state still would nois Railroad 385 F.3d 568 Central (5th Cir.2004) (en banc), garnered required Flagg’s to dismiss have been Defendants, much criticism.1 Instead against the so confusion and claims Miss., "any potential Walton Tower Loan [e]s- 1. cause (N.D.Miss.2004) F.Supp.2d Mississippi 694 & n. tate time-barred under the [we]re stating trusts”). (criticizing Smallwood’s standard and applying of limitations statute majority opinion that the division between the it is that LMMA's exhaus- irrelevant dissenting opinions "puts Smallwood jurisdic- requirement tion does not create a - judges position” regard- that, a difficult tional bar. -The critical fact under - apply); ing proper James M. law, standards to had no reasonable Underwood, Proxy Principle: From Fraudu- recovery on an claim. unexhausted Reconsidered, 69 Alb. L. Rev. lent Joinder Co., (2006) Prop. & (criticizing 33. Am. Nat'l Cas. our 1092-94. approach proxy a "flawed” that "fails to any underlying purpose implement behind Ass’n, diversity jurisdiction” which is Hosp. S.W. 624 So.2d Brister La. authorizing (La.Ct.App.1993). federal courts ".tantamount provider by care covered this clarity, majority opinion unnecessarily health Part , may any layer already ex- ... be commenced yet another be- adds pansive Properly ap- proposed complaint fore the claimant’s view of Smallwood. has presented panel result in a to a plied, the Smallwood test would been medical review Section.”). ju- lack pursuant to this conclusion established major- risdiction over ease. From the Importantly, purposes, pan- our ity opinion’s that we have determination duty” express expert el’s “sole is “to its (cid:127) I jurisdiction, dissent. respectfully opinion or not the as whether evidence doctrine, improper joinder a Under supports the conclusion that defendant disregard citizenship should or or acted failed act within defendants “there is no non-divérsé defendants where care,” appropriate ren- standards basis for reasonable predicting dering “expert opin- or more of three one liability '... plaintiff might establish ions”: against the in-state Badon defendant[s].” (1) supports The the conclu- evidence Inc., Nabisco RJR sion the defendant defendants (5th Cir.2000); Smallwood, see 385 F.3d at comply appropriate failed to words, In other a must defendant charged standard as in the com- care is no “demonstrate[ ] plaint. in recovery by an against (2) The evidence does support Smallwood, state defendant.” 385 F.3d at conclusion that the defendant or defen- Manufacturing ar 573. The applicable failed to dants meet stan- gue majority opinion agrees that and the complaint. of care in the charged dard the cash the Medical Defendants (3) fact, That there is a material issue premature light of what then a still- requiring bearing on expert opinion, (since resolved)' pending medical review liability the court. consideration and, therefore, panel proceeding there is 1231.8(G). §Id. predict liability “no reasonable basis” Further, can waive the medi-

against the Medical Defendants. process ways: cal review several majority opinion correctly states simply, “[b]y agreement of all Most that Louisiana an administrative the use of the re medical parties, governing malpractice scheme medical panel may Id. view be waived.” Malpractice claims: Louisiana Medical 1231.8(B)(1)(c); § see Delcam also (“LMMA”). governs Act The LMMA Sys., bre v. Blood 893 So.2d “any claims for tort or unintentional (La.2005). . . brought qual- breach contract” provider.” may bypass ified “health care 2. Parties also La.Rev.Stat. 1231.1, §§ majority they “validly 1231.8. The if have process review

Ann. opinion requires notes that the LMMA agreed” . the claims submit “to to submit a claim to medical lawfully binding proce- arbitration bringing review La.Rev.Stat. Ann. dure.” (“No 1231.8(B)(l)(a)(i) 1231.8(A)(1)(a). § action adjudicate review should "[fraudulent the merits of state law be- citizens”); tween nondiverse Matthew J. limited in than it is the Fifth scope more Richardson, Clarifying Limiting Circuit, Fraudu- applies the doctrine most ex- [which] Joinder, lent 58 Fla. L. Rev. pansively”). (2006) (criticizing arguing approach our

142 Against parties backdrop, If the the medical review we examine an Plaintiff “no appoint attorney fail to whether had of recovery” the Medical Defen

chairperson notify the medical and in complaint he filed his dants when state year one within review board Smallwood, filed, First, court. 385 at 573. F.3d they have when the claim complaint not face evidence , Id. of the panel. use waived juris “failure to exhaust.” Absent 1231.8(A)(2)(c). '§ to,exhaust,” to nature “failure dictional we may proceed despite any 4. A lawsuit treat failures exhaust as affirma such review panel claim-before a medical defenses, jurisdictional prerequis tive '(cid:127) if to render a fails decision Houston, See, e.g., ites.2 Young City v. within selection of year one (5th 177, Cir.1990) (holding 906 F.2d 180 chairperson,- unless attorney first plaintiffs failure to exhaust ex- a court-ordered receive ju remedies not a EEOC was good tension cause. Id. in prerequisite risdictional to suit 1231.8(B)(1)(b). § court).3 in For context example, Act, fol Litigation Prison Reform we have provider a health care Additionally, Supreme guidance lowed the Court’s can circumvent medical review Bock, 216, 199, 212, v. 127 Jones filing lawsuit process by and chal- 910, 166 (2007), S.Ct. L.Ed.2d 798 held lenging malpractice claimant’s that exhaustion is an affirmative defense. or for as prescribed failure claim See, e.g., Sterling, Cantwell v. 788 F.3d state a under Louisiana law. claim 507, (5th Cir.2015); Coleman v. 508-09 1231.8(B)(2)(a)-(b) § (noting de- Sweetin, 756, (5th Cir.2014). 745 F.3d 763 right may fendants claim “no of ac- Similarly, tion” Code of Civil under Louisiana’s Louisiana treats failure 927(6), Procedure; comply or' pre- Article as LMMA defensive as a issue, jurisdictional scribed statute limitations not a prerequisite. Delcambre, 27; malpractice for medical See Gele v. 893 So.2d La.Rev. 9:5628). Binder, 836, (La.Ct.App. Stat. Ann. 904 So.2d 837-38 See, majority suggests opinion way. e.g., solu ure 2. The that its tó exhaust same respects by treating Auth., legislatures 340, Reg’l tion state fed Smith v. Transit F.3d requirements (5th Cir.2014); Servs., eral simi exhaustion Recovery 345-47 ACS larly. Opinion at 139 & n. 29. Majority (5th 518, Griffin, Inc. Cir. However, key question case 2013) (en banc). is a affir is whether exhaustion merits-based jurisdictional prerequi defense mative or a inconsistently ap 3. Our court has sometimes majority In one of site. cited cases plied under the rule that failure to exhaust recognized opinión, we the difference be issue, jurisdictional Title VII is not but tween the affirmative exhaustion defense.of under our are bound of orderliness we rule jurisdictional prerequisite and a and declined Young's follow See United States v. standard. jurisdiction. to dismiss the for lack Alcantar, 143, (5th 145-46 Cir. Dist., Indep. Sch. See M.L. Frisco 451 Fed. 2013). Supreme precedent in Recent Cir.2011). (5th Appx. The other structing us the merits conflate plaintiff's case cited ERISA suit dismissed an supports this approach. remedies, for failure without dis Arbaugh Corp., Y H U.S. 513- v. & cussing jurisdiction. See Harris v. Trustmark (2006); 163 L.Ed.2d 1097 Bank, Fed.Appx. Nat’l — McManus, U.S. —, Cir.2008). Shapiro see also We treat statu have refused to other 193 L.Ed.2d 279 tory requirements' in the (2015). likely ERISA context the fail and would treat 2005). particular pleadings, delving This makes here our has. sense court .allowed non-jurisdictional into since the can waive the LMMA such affirmative de part fenses as ¡improper joinder the requirements. plain On the face of the id.; , inquiry. See then, nothing at pleading, was in tiffs there F.3d Smallwood 573. That does not mean this approach is recovery*’ possibility “no dicating fact, easily In administrable. correct Manufacturing Defendants the Supreme recently that the clarified alleged who were to have manufactured mandatory even rules under state law are implants in-state defective toe that jurisdictional not unless those statutes ex improperly implanted. Medical Defendants “speak plicitly in terms.” words, In showed a pleadings other 136 E.L., —, See V.L. v. U.S. garden-variety ease in-state and (2016) (per 194 L.Ed.2d al separate out-of-state defendants whose curiam). requirement The exhaustion un legedly tortious to a combined cause acts explicitly the LMMA is jurisdic der not . plaintiff to single harm the (to contrary jurisdiction tional it is not case, ma- Unusually an en banc al), just mandatory requirement like the jority opinion analysis engages in a factual rejected non-jurisdictional the Court as circumstances, of the here and presented court, As an en banc clarify V.L. we should concludes that the improper joinder doctrine and hew it Flagg’s relied on concession his motion closely' to Supreme more in Court’s stay he failed his medi- to that to exhaust treating avoid struction merits issues as malpractice cal claims before id.; jurisdictional. Arbaugh v. Y turn, majority In opinion concludes Corp., & H 12(b)(6)- falls within the Rule (2006). Instead, L.Ed.2d analysis approved by Smallwood. type majority opinion muddies the waters First, Smallwood described “Rule qualifiers expands with -numerous and 12(b)(6)-type analysis” permitting fully respect our standard does allegations courts to look “at the jurisdiction. role as courts limited complaint to the com- determine whether nothing on the face of com Becausé claim____” (em- plaint at 573 states plaint nothing in and the LMMA show that added). Second, phasis allowing recovery” is “no rely on in motions concessions included Defendants, panel the in-state .poses in the filed distinct opinion properly found federal questions more than it un- resolves. Left jurisdiction Stryker lacking. See is the answered future LMMA case when (5th Cir.2015); Corp., 462-63 801 F.3d anything by does not concede Smallwood, 385 The en banc F.3d moving to remand. this en banc majority opinion panel contends that really opinion only question in one answers opinion not faithful to our decisions one case. Corp., Melder v. Allstate 404 F.3d 328 majority opinion also Cir.2005), contends Abbott and Laborato Holder appropriate (5th Cir.2006). it ries, Inc., is find Of non-jurisdictional course, based affirmative right court has the en banc defense, involving one the statute of like prior precedents overrule this court Citigroup, limitations. See Boone v. prece extent should do so those (5th Cir.2005). 416 F.3d support exercising jurisdiction Certain- here. dents ly, But, panel explained, a “Rule opinion since Smallwood allowed as the it is 12(b)(6)-type analysis” necessary .to Melder and piercing overrule (noting “report expert opinion lack- conclude

Holder to Flagg, 460-62. reached medical review shall ing here. admissible as evidence” subse- adju comprehensive, involved Melder lawsuit, quent but not be conclu- “shall chal process to dicative administrative sive,” has the “sole duty Insurance before the Louisiana lenge rates express expert opinion” its as to wheth- (“LIRC”), which evalu Commission Rate of care applicable er the standards were rates after pre-clears insurance ates and met). words, In other the medical review reason determining whether rates are' the adjudicate Flagg’s will not claim at unfairly discriminatory.4 404 and not able all; evidentiary it simply provide will sup- empha repeatedly at 330-32. We F.3d for one side See port other. La.Rev. of the admin comprehensiveness sized the 1231.8(H). § The majority Ann. Stat. case, that, would scheme in that istrative unpersuasive this opinion finds distinction of the adjudication in an' actually result on no court has relied it.5 ever involved claim. Id. Holder also plaintiffs’ See.Majority Opinion at 138-39. adjudicatory un scheme comprehensive Injury the National Vaccine der Childhood no The reason circuit has other relied on on the Act, requires judgment which full is this no other circuit distinction that has of United Court Fed merits States opinion gone majority as far as the here.6 appeal to the eral Claims with Court quite is Supreme The trend different. 444 Circuit. F.3d the Federal Appeals has us not to conflate instructed §§ (quoting 300aa- at 387-89 42 U.S.C. of a jurisdiction. merits case and See Ar &-ll(a)(l)); 33(5) 42 see also U.S.C. 513-16, baugh, 1235; 546 126 at S.Ct. U.S. 300aa-12(f), § V.L., Following at 136 S.Ct. 1021-22. that instruction, facing not such a other is circuits exhaus agree All LMMA de- tion defenses dealt comprehensive administrative scheme have merits, malprac- those on signed adjudicate plaintiffs defenses rather than expert It a matter of only jurisdiction. claims. in an tice results Vazquez-Rivera 44, subse- opinion Figueroa, is admissible 759 F.3d (1st Cir.2014); par- on 46-49 quent binding but not Hildebrand v. Alle lawsuit Cty., self-effectuating. gheny 757 or the and not F.3d ties 111-13 — 1231.8(G), (H) (3d Cir.2014), denied, U.S. —, cert. See La.Rev.Stat. Ann. through pleadings— Additionally, piercing not merits the record did show plaintiffs in for administrative although filed Melder we have not clarified when such all, plaintiffs remedies with LIRC appropriate at and ignores piercing the Su- —and respond issue in not exhaustion preme guidance Court’s clearly recent about briefing, except could their to claim cleanly separating jurisdictional issues it, 404 at decide F.3d from merits exhaustion. defenses like V.L., 1021-22; Arbaugh, 136 S.Ct. at majority opinion dis- 5. The also claims this 513-16, 126 As an en S.Ct. 1235. banc Yet, easily it is tinction is not administrable. court, authority duty have we to clari- easy enough see is not a the LMMA fy, prior is necessary even if it to overrule adjudicative comprehensive, Fur- scheme. precedent any inconsistency. to the extent thermore, bright-line, easily if administrable goal, majority opinion is the standard Muchnick, Elsevier, 6.See also Reed Inc. 559 excep- approach it. new does not It creates 154, 1237, 160-62, U.S. S.Ct. 130 particular rules based on tion-riddled (2010); case, L.Ed.2d Steel Co. v. a Rule facts of this use Citizens allows Env’t, 89-90, 12(b)(6)-type analysis beyond the Better that'looks U.S. (1998). complaint may into sometimes delve L.Ed.2d (2015); 191 L.Ed.2d 359 concluded and sued the Medical , Inc., v. Advance Auto Richter Defendants in state While this court. real- Parts (8th Cir.2012)7; 850-51 ity Hunt might technically moot argu- cf. USA, Philip er v. Morris regarding jurisdiction, ment it underscores (9th Cir.2009)8 (concluding, im no removal, even at the time viewed proper joinder and that occurred it was “possibility recovery” very real jurisdiction to maintain error and dismiss and has point now come where the case based on a “merits” defense “recovery” judged will its merits. preemption). A few courts have stated Thus, even using approach the Smallwood plainly: this more “[T]o determine the ab of piercing pleadings peek is error sence when the facts, 573-74, see 385 F.3d at we find no ruling an upon is based affirmative de negate recovery only facts that tempo- a— Holley Equip. fense.” Co. Credit All. hurdle, rary since cleared. (11th Cir.1987); Corp., 821 F.2d 1535 The LMMA is not scheme kind of Lines, Exp. Salis Am. Fed.Appx. v. 331 comprehensive administrative scheme we (2d Cir.2009) (“The 814 court’s allowing have cited in a district court to on an reliance affirmative defense deter citizenship discount the of par- non-diverse mine that in controversy the amount was greatly ties. The majority opinion ex- diversity jurisdic insufficient to support pands Smallwood unnecessarily ex- tion improper.”). decision ad beyond tends Melder and Holder their judicate that, an defense will affirmative reach to encompass non-adjudica- stated (and did) evaporate over time under the tive, non-comprehensive, process waivable guise jurisdictional analysis of a is the since in I respectfully concluded this case. of unnecessary result our own court’s ex from dissent en banc court’s decision pansion of Smallwood.9 diversity jurisdiction .exists Nothing plaintiffs pleadings about the here. the LMMA shows has no However, possibility recovery against conclusion, I given the Medical concur Indeed, Defendants. in majority opinion’s we are now at the determination to point where the appeal LMMA have proceedings remand the merits Airlines, Inc., Zipes language See also distinguished v. Trans World in Smallwood 385, 393-95, between on merits” “an attack of a (1982) (holding L.Ed.2d 234 deadlines plaintiffs involving and other situations timely filing claims with the EEOC were not recovery no under law. jurisdictional); Dep’t Irwin Veterans Af (quoting See 582 F.3d at 1044-45 Small 89, 92-96, S.Ct. 453, fairs, 498 U.S. 574). wood, (1990) (holding filing L.Ed.2d 435 a Title VII jurisdictional); deadline was not Coke Gen. struggled, 9.We have and other- Smallwood Bureau, Adjustment wise, to formulate a to determine whether test (5th Cir.1981) (en banc) (following for relief on non-diverse basis exists Supreme holding trend in Court decisions Formulating proper state-law claim. test that the Title VII EEOC deadline was problematic, "judicially since the created holding 180-day that a doctrine” of can involve . requirement Age notice under Discrimina peeking into the merits of state-law claims Act, Employment tion 29 U.S.C. facially cases where the not com- are. 626(d)(1), jurisdictional). was likewise not pletely diverse. See Murriel-Don Coal Co. v. Ltd., relied, Aspen part, F.Supp.2d 8. The Ins. UK 594- Circuit Ninth. result, (citation omitted). arriving (E.D.Ky.2011) noting Smallwood in at this 12(b)(6) original pan- to the dismissal Rule

el determination. America,

UNITED STATES

Plaintiff-Appellee NAREZ-GARCIA,

Jose Luis

Defendant-Appellant. 15-50076, 15-50077.

Nos. Appeals,

United States Court Circuit.

Fifth 31, 2016.

March

Case Details

Case Name: Kale Flagg v. Denise Elliot

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 24, 2016

Citation: 819 F.3d 132

Docket Number: 14-31169

Court Abbreviation: 5th Cir.