In re Benjamin Moore & Co.

309 F.3d 296, 2002 WL 31236428

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 4, 2002
• Docket: No. 02-60714
• Status: Published

Opinions

BY THE COURT:

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 nondi-verse 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 Tapseott 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.