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In re Benjamin Moore Co.

United States Court of Appeals, Fifth Circuit
Oct 4, 2002
309 F.3d 296 (5th Cir. 2002)

Summary

holding that "misjoinder of plaintiffs should not be allowed to defeat diversity jurisdiction"

Summary of this case from McAfee v. Allstate Ins. Co.

Opinion

No. 02-60714.

October 4, 2002.

Dudley Collier Graham, Jr., Wise, Carter, Child Caraway, Jackson, MS, for Benjamin Moore Co.

F. Ewin Henson, III, James E. Upshaw, Upshaw, Williams, Biggers, Beckham Riddick, Greenwood, MS, Mark Claibrone Carroll, Upshaw, Williams, Biggers, Beckham Riddick, Ridgeland, MS, for all Petitioners.

William Hugh Gillon, IV, Upshaw, Williams, Biggers, Beckham Riddick, Ridgeland, MS, Antony B. Klapper, Michael D. Jones, Eric B. Wolff, Kirkland Ellis, Washington, DC, for NL Industries, Inc.

John G. Corlew, Watkins Eager, Jackson, MS, for Sherwin-Williams Co.

Timothy W. Porter, Patrick Cash Malouf, Porter Malouf, Jackson, MS, John A. Foxworth, Jr., Michael J. Casano, Foxworth Casano, Gulfport, MS, for all Plaintiffs-Respondents.

Robert Allred Pritchard, Christopher Eugene Fitzgerald, Robert Pritchard Law Firm, Pascagoula, MS, Robert F. Wilkins, Pritchard Law Firm, Jackson, MS, for Washington, Reed, Hicks and Johnson.

Mark W. Davis, Ronald Martin Feder, Davis Feder, Gulfport, MS, for Randle, Helm and Harrell.

Roland M. Slover, Thomas W. Tardy, III, Forman, Perry, Watkins, Krutz Tardy, Jackson, MS, for Alexander Hardware Co., Inc., Concordia Contracting Co., Inc., Feltus Bros. Ltd., Hudson Salvage, Inc., Tyson Lumber Co. of Natchez, Stine, Inc. and True Value Hardware.

William N. Graham, Aultman, Tyner, Ruffin Yarborough, Hattiesburg, MS, for Clairborne Hardware Inc.

Fred H. Krutz, III, Forman, Perry, Watkins, Krutz Tardy, Jackson, MS, for Concordia Contracting Co., Inc., Feltus Bros. Ltd., Hudson Salvage Inc., Tyson Lumber Co. of Natchez, Stine, Inc. and True Value Hardware.

Luke M. Dove, Dove Chill, Jackson, MS, for Darsey, Hirschs Store and Lane Hardware, Inc.

Stephen W. Rimmer, Watkins, Ludlam, Winter Stennis, Jackson, MS, for Frierson Bldg. Supply Co.

James Tucker Mitchell, John Evans Gough, Jr., Copeland, Cook, Taylor Bush, Ridgeland, MS, for Salvage Liquidation Inc.

Lawrie E. Demorest, Alston Bird, Atlanta, GA, Richard F. Yarborough, Jr., Jennifer L. Walley, Aultman, Tyner, Ruffin Yarborough, Columbia, MS, for Lowes Home Centers Inc.

William F. Riley, Riley Callaway, Natchez, MS, for Macs Bldg. Supply.

Danny Keith Clearman, Decatur, MS, for Mid South Lumber Inc.

J. Price Coleman, Bradley Witherspoon Smith, Baker, Donelson, Bearman Caldwell, Jackson, MS, for Mississippi Hardware Co. and Seabrook Paint Co. of Mississippi.

William Lee Guice, III, Rushing Guice, Biloxi, MS, for Phillips Bldg. Supply Inc.

Stephen L. Thomas, Bradley, Arant, Rose White, Norman E. Bailey, Jr., Robert L. Gibbs, Brunini, Gratham, Grower Hewes, Jackson, MS, Phillip Mark Crane, Lawrence B. Finn, Chad Michael Tuschman, Segal, McCambridge, Singer Mahoney, Chicago, IL, for Sears Roebuck Co.

Edley Hicks Jones, III, Law Office of Edley H. Jones, III, Ridgeland, MS, for Wal-Mart Associates Inc.

C. Everette Boutwell, Laurel, MS, for Walters Salvage Inc.

Robert Raul Stephenson, Reeve G. Jacobus, Jr., Williford, McAllister Jacobus, Jackson, MS, for Porters Paint.

Lucien C. Gwin, Jr., Gwin, Lewis Punches, Natchez, MS, for Pittsburg Coating.

Petition for Writ of Mandamus to the United States District Court for the Southern District of Mississippi.

Before JOLLY, JONES and PARKER, Circuit Judges.


IT IS ORDERED that the petition for writ of mandamus is Denied Without Prejudice.

Petitioners' motion is framed around the district court's failure to address whether diversity jurisdiction was fraudulently defeated because among the seventeen plaintiffs herein, who have nothing in common with each other, only four have asserted claims that relate in any way to the nondiverse defendants. It may thus be contended that the other thirteen did raise claims cognizable in diversity jurisdiction. See Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996), abrogated on other grounds, Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000). Further, it might be concluded that misjoinder of plaintiffs should not be allowed to defeat diversity jurisdiction. See Tapscott id. (holding misjoinder may be as fraudulent as the joinder of a resident against whom a plaintiff has no possibility of a cause of action). The district court no doubt inadvertently overlooked that this point was timely raised, but the point cannot be ignored, since it goes to the court's jurisdiction and to the defendants' rights to establish federal jurisdiction following removal. Because we are confident that the able district court did not intend to overlook a feature critical to jurisdictional analysis, there is no reason to grant mandamus relief at this time.


I concur only in the result of the order that denies the petition for mandamus.


Summaries of

In re Benjamin Moore Co.

United States Court of Appeals, Fifth Circuit
Oct 4, 2002
309 F.3d 296 (5th Cir. 2002)

holding that "misjoinder of plaintiffs should not be allowed to defeat diversity jurisdiction"

Summary of this case from McAfee v. Allstate Ins. Co.

holding that a district court erred by failing to consider whether claims were fraudulently misjoined

Summary of this case from Emery v. State Farm Fire Casualty Company

holding that "misjoinder of plaintiffs should not be allowed to defeat diversity jurisdiction"

Summary of this case from Pittman v. Purdue Pharma Company

holding that "misjoinder of plaintiffs should not be allowed to defeat diversity jurisdiction"

Summary of this case from Coleman v. Conseco, Inc.

finding district court erred by failing to consider fraudulent misjoinder

Summary of this case from Allen v. Kuhlman Corporation

adopting Tapscott

Summary of this case from Energy Royalties Corp. v. Denbury Onshore, LLC

recognizing the force of the Tapscott principle that fraudulent misjoinder should not be allowed to circumvent diversity jurisdiction

Summary of this case from Barron v. Miraglia

suggesting that the district court should have considered the defendants' arguments under Tapscott

Summary of this case from Parish of Plaquemines v. Total Petrochemical & Refining USA, Inc.

noting that "it might be concluded that misjoinder . . . should not be allowed to defeat diversity jurisdiction."

Summary of this case from Sullivan v. Direct Gen. Ins. Co. of Miss.

noting that "it might be concluded that misjoinder . . . should not be allowed to defeat diversity jurisdiction."

Summary of this case from Howard v. Direct Gen. Ins. Co.

noting that "it might be concluded that misjoinder . . . should not be allowed to defeat diversity jurisdiction."

Summary of this case from Robinson v. Direct Gen. Ins. Co. of Miss.

stating that, as part of its jurisdictional determination, a district court should consider whether misjoinder of a non-diverse party defeats diversity jurisdiction and citing Tapscott

Summary of this case from Wells Fargo Bank N.A. v. American Gen. Life Ins. Co.

In Benjamin Moore, seventeen plaintiffs, only four of which had asserted claims that related in any way to non-diverse defendants, were joined in one action.

Summary of this case from BRIGHT v. NO CUTS INC.

stating that "it might be concluded that misjoinder of plaintiffs should not be allowed to defeat diversity jurisdiction"

Summary of this case from Jamison v. Purdue Pharma Company
Case details for

In re Benjamin Moore Co.

Case Details

Full title:In Re: BENJAMIN MOORE COMPANY, wholly-owned subsidiary of Berkshire…

Court:United States Court of Appeals, Fifth Circuit

Date published: Oct 4, 2002

Citations

309 F.3d 296 (5th Cir. 2002)

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