590 F.2d 115 (5th Cir. 1979), 78-2671, Tedder v. F.M.C. Corp.

Docket Nº78-2671
Citation590 F.2d 115
Party NameMancel E. TEDDER, Plaintiff-Appellant, v. F.M.C. CORPORATION et al., Defendants. Appeal of F.M.C. CORPORATION.
Case DateFebruary 21, 1979
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 115

590 F.2d 115 (5th Cir. 1979)

Mancel E. TEDDER, Plaintiff-Appellant,

v.

F.M.C. CORPORATION et al., Defendants.

Appeal of F.M.C. CORPORATION.

No. 78-2671

[*]

United States Court of Appeals, Fifth Circuit

February 21, 1979

Page 116

Hackman & Lewis, Randell O. Lewis, Boutte, La., for plaintiff-appellant.

Milling, Benson, Woodward, Hillyer & Pierson, James K. Irvin, M. Truman Woodward, Jr., Frederick R. Bott, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before COLEMAN, FAY and RUBIN, Circuit Judges.

PER CURIAM:

Mancel Tedder, injured while on the job, filed this negligence suit in Louisiana state court. He named as defendants F.M.C. Corporation (F.M.C.), the manufacturer of a crane allegedly involved in the accident, and Charles Thomas, L. Z. Henry, Bobby Hall, and M. L. Aleman, all said to be officers, directors, or employees of Tedder's employer, J. A. Jones Construction.

Tedder is a resident of Louisiana. F.M.C. is a Delaware corporation, with its principal place of business in Illinois. Thomas and Henry are residents of Mississippi, but Hall and Aleman are residents of Louisiana.

F.M.C. petitioned for removal of the case to federal district court, contending that the joinder of Hall and Aleman was for the fraudulent purpose of defeating federal jurisdiction and that lack of complete diversity could not be raised as a bar to removal. The district court removed the case, denied Tedder's motion to remand to state court, and granted the motion of Thomas, Henry, Hall, and Aleman to dismiss for failure to state a claim upon which relief may be granted. After Tedder failed to comply with the court's order to make his pleadings more definite, the court granted F.M.C.'s unopposed motion for dismissal under Fed.R.Civ.P. 41(b) or for summary judgment under Fed.R.Civ.P. 56 and entered a final judgment.

On appeal, Tedder contends that the joinder of two nondiverse defendants was not fraudulent and that the case should have been remanded to state court. The defendants argue that dismissal, rather than remand, was correct under recent amendments to the Louisiana workmen's compensation statute, LSA-R.S. 23:1032; 23:1101 (Supp.1978).

Whether the case was properly removed is determined by reference to the allegations in a plaintiff's state court...

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