Opinion
Civil Action No. L-02-38
July 22, 2002
MEMORANDUM AND ORDER
In response to the Court's Memorandum and Order of Dismissal of July 8, 2002, Plaintiffs have filed a motion for reconsideration and also a motion for leave to file an amended original petition (Docket Nos. 15-16). These motions misconstrue the Court's earlier decision. Plaintiffs cite settled law to the effect that defects in pleadings can generally be corrected by amendment. However, the Court was not previously dealing with a Rule 12(b)(6) motion. Instead, the Court was determining whether it had jurisdiction over this case. Specifically, the Court was considering whether, in the posture of the case at the time of removal, the Plaintiffs had any viable cause of action against Defendant Sames Motor Company, Inc. Plaintiffs now tender a more detailed pleading of their theory that Sames had negligently failed to inspect tires. For removal purposes, however, the general rule is that post-removal events, specifically including tendered amended complaints, cannot be considered.Cavallini v. State Farm Mutual, 44 F.3d 256, 264 (5th Cir. 1995). For that reason, Plaintiffs' cases discussing liberal amendment policies outside the removal context are not pertinent. Similarly, the case ofCobb v. Delta Exports Jail., 186 F.3d 675 (5th Cir. 1999) is also irrelevant. That case dealt with an explicit statutory provision, 28 U.S.C. § 1447(e), dealing with the effect of post-removal joinder of a new party who destroys diversity. There is no new party here. Instead, the issue before the Court was whether Plaintiffs' belated theory of failure to inspect could fairly be considered as a mere clarification or amplification of claims alleged at the time of removal.Griggs v. State Farm Lloyds, 181 F.3d 694, 700 (5th Cir. 1995). The Court answered that question in the negative, as the Plaintiffs' original pleadings did not contain even a hint of such a theory. The Court now reaffirms that conclusion.
While the caselaw is not entirely clear on the mechanics of dispensing with fraudulently joined defendants, the Court did not intend Sames' dismissal to be a ruling on the merits and now clarifies that the dismissal was without prejudice. Sames was a fraudulently joined party because Plaintiffs had not sufficiently stated any valid claim against it as of the time this case was removed. The case now proceeds in federal court without Sames, but Plaintiffs are free to pursue their negligent claims against Sames in state court.
The motions are DENIED.