Opinion
J. E. Healy, of Butte, Mont., for plaintiff.
Geo. F. Shelton and A. J. Verheyen, both of Butte, Mont., for defendants.
BOURQUIN, District Judge.
Motion to remand. Action for libel and removal for diverse citizenship.
Upon the facts that may be taken as proven hereon, the removing defendant contends that the law is that its codefendant, whose joinder, unless proven fraudulent, defeats removal, is not liable; and hence the conclusion, fraudulent joinder. Plaintiff, contra.
The law is fairly debatable. But if plaintiff knew the aforesaid facts, and if the law be as claimed by the defendant, these are but circumstances, and not conclusive of fraudulent joinder. Where the law is locally unsettled, it is the right of plaintiff to adopt and fairly urge that view thereof that best serves his interests, to join defendants accordingly, and, if the case be not otherwise removable, to secure a trial and determination of the disputed issues, fact and law, upon his theory and in the forum of his choice, the state court. This being plaintiff's right, its exercise is not fraudulent, though its chief motive be to prevent removal and compel trial in the state court. The case on removal is taken to be what plaintiff in good faith has made it. He may be in error in respect to both facts and law, his complaint may show misjoinder on its face, but fraud cannot be predicated upon his mere mistakes, though they defeat removal. The exercise of the right aforesaid is consistent with good faith, for law is not settled by a litigant's belief or contention, but by the court's determination. This determination is for the trial, and not on remand.
On remand, the issue is not what is the law of the case, but is the joinder fraudulent? And the fraud to be alleged and proven to make out fraudulent joinder is essentially that in any case-- in general, willful or negligent misstatement of fact. See Railway Co. v. Willard, 220 U.S. 419, 31 Sup.Ct. 460, 55 L.Ed. 521, and cases cited.
Fraudulent joinder is not proven here, this court has no jurisdiction of the action, and the motion to remand is granted. Costs to plaintiff.