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Click here for the full text of this decision FACTS:Johnny Crockett and others filed a wrongful death and survival suit against Dr. William Peterek and the Gulf Coast Medical Group in Texas state court over the death of Veronica Faye Crockett from cancer. Crockett also added several tobacco-related entities, as Veronica was a longtime smoker. Crockett and the health-care defendants are Texas residents, which means there is not complete diversity for federal jurisdiction to be appropriate. Nonetheless, the tobacco defendants removed the case to federal court, arguing that the health-care defendants were fraudulently joined to defeat removal jurisdiction. The district court disagreed and remanded to the state court. Back in state court, the tobacco defendants successfully moved to sever the claims against the health-care defendants. The state court severed Crockett’s claims against the health-care defendants from his claims against the tobacco defendants because “the medical negligence and malpractice claim and the burden of proof to sustain [that] claim is totally different [from] the burden of proof . . . necessary to secure judgment for product liability.” The tobacco defendants then sought to remove the remaining claims to federal court. Immediately after that, the tobacco defendants filed a motion for judgment on the pleadings. Crockett moved to remand, saying this second attempt at removal was improper because the complete diversity that now existed was not created through his voluntary act. The district court granted the tobacco defendants’ motion for judgment on the pleadings, then denied Crockett’s motion to remand as moot. On appeal, Crockett argues that the district court did not have jurisdiction. HOLDING:Affirmed. The court agrees with the tobacco defendants that the judicially created “voluntary-involuntary” rule � that allows a second attempt at removal may be made only upon voluntary action by the plaintiff � is inapplicable when parties are improperly joined to begin with. The exception has usually been applied when parties are fraudulently joined. The district court � upon the first attempt to remove � declared that the health-care defendants had not been fraudulently joined. Further, the severance order back at the state court was not based on any finding of fraud. “A party, however, can be improperly joined without being fraudulently joined,” the court says. The state court severed Crockett’s claims against the health-care defendants from his claims against the tobacco defendants because the claims carried different burdens of proof (one for medical malpractice, one for product liability). To the extent the severance decision was tantamount to a finding of improper joinder, the court agrees with that finding. “The fraudulent joinder exception to the voluntary-involuntary rule is designed to prevent plaintiffs from blocking removal by joining nondiverse and/or in-state defendants who should not be parties. That salutary purpose is also served by recognizing an exception to the voluntary-involuntary rule where defendants are improperly, though not fraudulently, joined. We therefore conclude that removal on the basis of an unappealed severance, by a state court, of claims against improperly joined defendants is not subject to the voluntary-involuntary rule. . . . Accordingly, removal jurisdiction existed in this case upon the severance of Crockett’s claims against the nondiverse in-state health care defendants.” OPINION:Smith, J.; Garwood, Smith and DeMoss, JJ.

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