Removal

Waiver.  The Fifth Circuit has written several opinions about the effect of a forum selection clause on a party’s right to remove a matter to federal court.  See, e.g., Alliance Health Group L.L.C. v. Bridging Health Options L.L.C., 553 F.3d 397 (5th Cir. 2008) (finding no waiver from the phrase “exclusive venue for any litigation related hereto shall occur in Harrison County, Mississippi” when a federal courthouse was located there); Dixon v. TSE Int’l, Inc., 330 F.3d 396, 398 (5th Cir. 2003) (finding waiver from the phrase “[t]he Courts of Texas, U.S.A.” because “[f]ederal district courts may be in Texas, but they are not of Texas”).  See generally Coale, Visosky & Cochrane, “Contractual Waiver of the Right to Remove to Federal Court,” 29 Rev. Litig. 327 (2010).

Supplemental Jurisdiction.  Another recent opinion found an abuse of discretion in not remanding a case once all federal claims were eliminated at an early stage of the proceedings.  Enochs v. Lampasas County, No. 10-50029 (5th Cir. May 17, 2011) (citing Parker & Parsley v. Dresser Indus., 972 F.2d 580 (5th Cir. 1992)).

Joinder.  In Moore v. Manns, Moore sued PPG Industries and several local parties for injuries at a chemical complex; the defendants removed, arguing fraudulent joinder. After some jurisdictional discovery, Moore sought to add three more local parties, and the district court denied him leave to do so.  No. 12-31265 (Oct. 8, 2013). The Fifth Circuit affirmed, first reminding; “If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court”; accordingly, a district court should review such a proposed amendment “more closely than an ordinary amendment.” Factors include the extent to which the amendment is solely for jurisdictional purposes, whether plaintiff was dilatory, and potential harm to plaintiff of not allowing the amendment. Here, the Court agreed that the “general responsibilit[y]” for safety under which the new parties were sued did not trigger personal fault under Louisiana law, making the amendment tactical and impermissible.

In Fontenot v. Watson Pharmaceuticals, a long-running products liability and medical malpractice case about a transdermal pain patch, plaintiffs sought to add nondiverse health care providers to the case after removal.  No. 12-30711 (June 10, 2013).  The district court remanded pursuant to 28 U.S.C. § 1447(e).  The Fifth Circuit dismissed for lack of appellate jurisdiction, concluding that a remand for lack of subject jurisdiction was unreviewable under Thermtron just like a jurisdictional remand under 1447(c), and noting that all other circuits facing the issue reached the same conclusion.  The Court also found that the joinder ruling that led to the jurisdictional issue was an unreviewable collateral order.

Context.  Appellate review of remand rulings — — both grants and denials — is linked with substantive issues about CAFA and with procedural debate about the role of mandamus.