JERRY E. SMITH, Circuit Judge:
Johnny Crockett and other heirs of the estate of Veronica Faye Crockett (collectively
Crockett filed a wrongful death and survival suit against the tobacco defendants and Dr. William Peterek and the Gulf Coast Medical Group (collectively the "health care defendants") in state court seeking damages for the cancer-related death of Veronica Faye Crockett, a long-time smoker. Crockett alleges that the tobacco defendants' defective cigarettes and the health care defendants' negligence in failing to diagnose the decedent's cancer combined to cause her death.
Because Crockett and the health care defendants are citizens of Texas, there is not complete diversity of citizenship. Federal jurisdiction also is barred by the fact that the health care defendants are citizens of the state in which the action is brought. The tobacco defendants nevertheless removed, claiming that the non-diverse health care defendants had been fraudulently joined to defeat removal jurisdiction. The district court determined that there had been no fraudulent joinder and remanded to state court.
On remand, the tobacco defendants, over Crockett's objection, successfully moved to sever Crockett's claims against the health care defendants. Upon issuance of the severance order, the tobacco defendants again removed, arguing that the severance of the non-diverse parties cured the lack of complete diversity. Immediately after filing their notice of removal, the tobacco defendants also filed a motion for judgment on the pleadings.
Once back in federal court, Crockett moved to remand, arguing that the tobacco defendants' second attempt to remove was improper because diversity had not been created through a voluntary act of the plaintiffs. Instead of first ruling on Crockett's motion, the district court held against him on the merits by granting the tobacco defendant's motion for judgment on the pleadings, then denied as moot the motion to remand.
"We review questions of subject matter jurisdiction de novo." Bissonnet Invs., LLC v. Quinlan, 320 F.3d 520, 522 (5th Cir.2003). Because Crockett does not contest the district court's decision on the merits, so the only issue on appeal is whether the district court had removal jurisdiction, leading us to apply the de novo standard.
As a general matter,
28 U.S.C. § 1441(a). If jurisdiction is based on diversity of citizenship, however,
This suit was initially nonremovable because the health care defendants were non-diverse and were citizens of Texas, in which the action was brought. The tobacco defendants argue, however, that the state court's order severing Crockett's claims against the health care defendants produced complete diversity and obviated the "in-state defendant" barrier posed by § 1446(b). The tobacco defendants assert that a severance order qualifies as an "order or other paper from which it may first be ascertained that the case is one which . . . has become removable." § 1446(b).
Crockett contends, to the contrary, that § 1446(b) was enacted against the backdrop of, and without the intent to abrogate, the judicially-created "voluntary-involuntary" rule whereby "an action nonremovable when commenced may become removable thereafter only by the voluntary act of the plaintiff." Weems v. Louis Dreyfus Corp., 380 F.2d 545, 547 (5th Cir.1967). Because this suit became arguably removable only after the issuance of a severance order that was entered over Crockett's objection, Crockett claims removal was improper under the voluntary-involuntary rule.
The tobacco defendants counter that the voluntary-involuntary rule is inapplicable because the health care defendants were not properly-joined parties. We agree.
Courts have long recognized an exception to the voluntary-involuntary rule where a claim against a nondiverse or in-state defendant is dismissed on account of fraudulent joinder.
On the tobacco defendants' first attempt to remove, the district court, after deciding that the health care defendants had not been fraudulently joined, remanded on that basis. Crockett notes correctly that that decision is made unreviewable by 28 U.S.C. § 1447(d).
A party, however, can be improperly joined without being fraudulently joined. Under federal law, defendants are properly joined if (1) "there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences" and (2) "any question of law or fact common to all defendants will arise in the action." FED.R.CIV.P. 20(a). Texas has adopted the same requirements for proper joinder. See TEX.R. Civ. P. 40(a). If these requirements are not met, joinder is improper even if there is no fraud in the pleadings and the plaintiff does have the ability to recover against each of the defendants.
The state court severed Crockett's claims against the health care defendants from his claims against the tobacco defendants because "the medical negligence and malpractice claim and the burden of proof to sustain [that] claim is totally different [from] the burden of proof . . . necessary to secure judgment for product liability."
The fraudulent joinder exception to the voluntary-involuntary rule is designed to prevent plaintiffs from blocking removal by joining nondiverse and/or in-state defendants who should not be parties. That salutary purpose is also served by recognizing an exception to the voluntary-involuntary rule where defendants are improperly, though not fraudulently, joined. We therefore conclude that removal on the basis of an unappealed severance, by a state court, of claims against improperly joined defendants is not subject to the voluntary-involuntary rule.
Crockett has not challenged the district court's disposition on the merits. Accordingly, because we conclude that the district court had subject matter jurisdiction, its judgment granting the motion for judgment on the pleadings, denying (as moot) the motion to remand, and dismissing all claims with prejudice, is AFFIRMED.