Iowa Law Review Publishes Article on Removal Based on Fraudulent Joinder

The Iowa Law Review has just published an article by E. Farish Percy entitled Making A Federal Case Of It: Removing Civil Cases To Federal Court Based On Fraudulent Joinder 91 Iowa L. Rev. 189 (2005). Here's the abstract:

As defendants increasingly prefer to litigate in federal rather than state court, a new doctrine has emerged authorizing removal of civil cases to federal court based on diversity jurisdiction--fraudulent procedural misjoinder. Although the doctrine was first recognized by the Eleventh Circuit almost a decade ago, appellate courts have provided little guidance concerning the doctrine's application. As a result, district courts have failed to establish a cohesive framework for evaluating allegations of fraudulent misjoinder and have sometimes construed the evolving doctrine in a manner that raises serious federalism concerns. This Article proposes a framework for evaluating alleged fraudulent misjoinder so as to protect a diverse defendant's statutory right to remove while also ensuring that federal courts do not intrude upon the jurisdiction of state courts. It addresses many of the issues that currently lack clarity. First, it argues that state rather than federal joinder rules should control. Next, it demonstrates that the doctrine should apply equally to the misjoinder of defendants and the misjoinder of plaintiffs. Third, the Article suggests that the definitional standard for fraudulent misjoinder should mimic the definitional standard for traditional fraudulent joinder such that fraudulent misjoinder only occurs when the plaintiff lacks a reasonable basis under state procedural law for the joinder of the non-diverse party. Finally, it concludes that in cases involving fraudulent misjoinder, federal courts should remand rather than dismiss misjoined claims over which they have no jurisdiction.