Ford v. Elsbury
| Decision Date | 09 September 1994 |
| Docket Number | No. 93-5365,93-5365 |
| Citation | 32 F.3d 931 |
| Parties | Undray D. FORD, Etc., et al., Plaintiffs-Appellants, v. Ernie ELSBURY, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Frank C. Dudenhefer, Jr., John J. Cummings, III, Cummings, Cummings & Dudenhefer, Douglas M. Schmidt, New Orleans, LA, W. Hugh Sibley, Sibley & McShane, Greensberg, LA, for appellants.
Thomas M. Bergstedt, Thomas J. Gayle, Bergstedt & Mount, Lake Charles, LA, for amicus curiae: Olin Corp.
Gregory P. Massey, Jones, Tete, Nolen, Hanchey, Swift & Spears, Lake Charles, LA, R. Joshua Koch, Jr., Stephen T. Perkins, James R. Sutterfield, Hoffman, Sutterfield, Ensenat & Bankston, P.L.C., New Orleans, LA, for appellees.
Appeal from the United States District Court for the Western District of Louisiana.
Before REAVLEY, JONES and BENAVIDES, Circuit Judges.
In this appeal we decide whether the district court had diversity jurisdiction because of the fraudulent joinder of a defendant of non-diverse citizenship. We conclude that the district court lacked jurisdiction and should remand the case to state court.
On July 28, 1992, an explosion occurred at a fertilizer plant in Westlake, Louisiana owned by appellee Arcadian Corporation ("Arcadian"). The explosion was caused by the rupture of the plant's urea reactor. Appellant Undray Ford and numerous other named plaintiffs (the "Ford plaintiffs") filed a class action suit in Louisiana state court shortly thereafter. The named defendants were Arcadian, the plant's manager Ernie Elsbury, and the plant's employee relations manager Paul Moore. The defendants removed the case to federal court. Although complete diversity was ostensibly lacking because the plaintiffs and the individual defendants were Louisiana citizens, the defendants claimed that Moore and Elsbury had been fraudulently joined. Plaintiffs filed a motion to remand. After limited discovery, the district court denied the motion to remand and sua sponte granted summary judgment in favor of Moore and Elsbury. The Ford plaintiffs complain on appeal that the district court erred in dismissing the claims against Elsbury and denying the motion to remand.
Appellees Arcadian and Elsbury argue that the notice of appeal is defective because it did not sufficiently specify the parties seeking appellate review. The style of the notice identified the plaintiffs as "Undray D. Ford, et al.," and the body of the notice identified the appealing parties as the " 'Ford' plaintiffs." Similar notices of appeal have been held defective. 1 However, as appellees recognize, effective December 1, 1993, FED.R.APP.P. 3(c) was amended. 2 The intent Arcadian argues that the notice of appeal was filed before the effective date of the amendments, but the Supreme Court order adopting the amendment states that it "shall govern all proceedings in appellate cases thereafter commenced and, insofar as just and practicable, all proceedings in appellate cases then pending." 61 U.S.L.W. 4395 (U.S. Apr. 22, 1993). Appellees have not shown that applying the amended Rule would operate as an unfair surprise to them or otherwise be unjust. Throughout the district court proceedings the plaintiffs consistently referred to themselves as the "Ford" plaintiffs. We therefore hold that the amended Rule should govern our case, 3 and that the notice of appeal was sufficient as to all the Ford plaintiffs.
of the 1993 Rule 3 amendments, as explained in the 1993 advisory committee notes, is to liberalize the pleading requirements for a notice of appeal. The notice of appeal in this case, an uncertified class action, is sufficient as to all the Ford plaintiffs under the amended Rule.
This appeal is interlocutory because the district court did not dismiss Arcadian and retained jurisdiction over the claims against that defendant. An appeal will lie from a partial summary judgment under FED.R.CIV.P. 54(b) "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Appellees contend that the partial summary judgment in favor of Elsbury and the denial of the motion to remand are not appealable because they were not properly certified for appeal under Rule 54(b).
The record confirms the following order of events. A magistrate issued a report and recommendation on the then-pending motions to remand and for leave to amend the complaint. He recommended that the motions be denied. He further recommended that summary judgment be granted sua sponte in favor of Elsbury and Moore, since he concluded that a finding of fraudulent joinder of these defendants necessarily meant that no valid claim existed against them. 4 The district court adopted the magistrate's recommendations, and entered a "Judgment" that, inter alia, denied the motion to remand and granted summary judgment in favor of Elsbury and Moore. Plaintiffs then filed a motion to certify the denial of the motion to remand for interlocutory appeal pursuant to 28 U.S.C. Sec. 1292. After this motion was filed, the district court on July 13, 1993 entered two further orders--an "Amended Judgment" and an order denying the motion for Sec. 1292 certification. The only change in the amended judgment was the addition of a statement that "such judgment is final and appealable" after the clause granting the partial summary judgment. The order denying the motion for Sec. 1292 certification contains the following handwritten note:
Our decision is governed by Kelly v. Lee's Old Fashioned Hamburgers, Inc., 908 F.2d 1218 (5th Cir.1990) (en banc):
If the language in the order appealed from, either independently or together with related portions of the record referred to in the order, reflects the district court's unmistakable intent to enter a partial final judgment under Rule 54(b), nothing else is required to make the order appealable.... Counsel should know that the district court has entered a partial final judgment when the order alone or the order together with the motion or some Id. at 1220-21.
other portion of the record referred to in the order contains clear language reflecting the court's intent to enter the judgment under Rule 54(b).
The record unmistakably reflects the intent of the district court to enter Rule 54(b) final orders granting the partial summary judgment and denying the motion to remand. Among other things, the amended judgment states that the summary judgment "is final and appealable." The district court's denial of the request for Sec. 1292 certification of the order denying the motion to remand plainly states that the request is moot because "plaintiffs can appeal pursuant to Rule 54(b)." Further, the denial of the motion to remand and the granting of the partial summary judgment were inextricably linked. Both grew out of the same round of motions and briefing, both relied on the same evidentiary showing, both are found in the same judgment and amended judgment, and both turned on the district court's conclusion that no claim existed against the non-diverse defendants. In such circumstances we have held that we can review on appeal the denial of the motion to remand along with the grant of the final partial judgment. 5
The district court concluded that the two non-diverse defendants, Moore and Elsbury, had been fraudulently joined as defendants in order to defeat diversity jurisdiction. The Ford plaintiffs raise no argument on appeal as to Moore. They contend, however, that the district court erred in finding that Elsbury had been joined fraudulently.
"The burden of persuasion placed upon those who cry 'fraudulent joinder' is indeed a heavy one." B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981). The standards for evaluating such a claim were summarized in Dodson v. Spiliada Maritime Corp., 951 F.2d 40 (5th Cir.1992):
Where charges of fraudulent joinder are used to establish [federal] jurisdiction, the removing party has the burden of proving the claimed fraud.... To prove their allegation of fraudulent joinder [removing parties] must demonstrate that there is no possibility that [plaintiff] would be able to establish a cause of action against them in state court. In evaluating fraudulent joinder claims, we must initially resolve all disputed questions of fact and all ambiguities in the controlling state law in favor of the non-removing party. We are then to determine whether that party has any possibility of recovery against the party whose joinder is questioned.
Id. at 42 (citations omitted). While we have cautioned against "pretrying a case to determine removal jurisdiction," fraudulent joinder claims can be resolved by "piercing the pleadings" and considering summary judgment-type evidence such as affidavits and deposition testimony. Carriere v. Sears, Roebuck and Co., 893 F.2d 98, 100 (5th Cir.), cert. denied, 498 U.S. 817, 111 S.Ct. 60, 112 L.Ed.2d 35 (1990). Such a procedure was followed here.
1. The...
To continue reading
Request your trial
-
U.S. v. Compaction Systems Corp.
...do not expressly recognize motions for "reconsideration." United States v. Emmons, 107 F.3d 762, 764 (10th Cir.1997); Ford v. Elsbury, 32 F.3d 931, 937 n. 7 (5th Cir.1994). Instead, such motions are treated as motions to alter or amend judgment under Rule 59(e) or motions for relief or orde......
-
Wells' Dairy v. American Indus. Refrigeration
...against a named in-state defendant in state court.'" Id. (footnote omitted). Badon, 224 F.3d at 389 n. 10; see also Ford v. Elsbury, 32 F.3d 931, 935 (5th Cir.1994) ("[F]raudulent joinder claims can be resolved by `piercing the pleadings' and considering summary judgment-type evidence such ......
-
Miller v. Home Depot, U.S.A., Inc., 2:01 CV 0859.
...112 L.Ed.2d 35 (1990). "The burden of persuasion placed upon those who cry `fraudulent joinder' is indeed a heavy one." Ford v. Elsbury, 32 F.3d 931, 935 (5th Cir.1994) (quoting B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981)). Here the Defendants must show that there is no......
-
Marathon Oil Co. v. Ruhrgas, A.G.
...also asserts that Ruhrgas has tortiously interfered with MPN's obligations to Norge under the Pass Through Agreement.16 Ford v. Elsbury, 32 F.3d 931 (5th Cir.1994).17 B, Inc., 663 F.2d at 549 (footnote omitted).18 Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir.1992); see also B......