Should the Eighth Circuit recognize procedural misjoinder?

South Dakota Law Review, Spring, 2008 by Ronald A. Parsons, Jr.

D. AVAILABILITY OF A STATE REMEDY

Importantly, rejection of the newly minted concept of procedural misjoinder as an addition to the well-established doctrine of fraudulent joinder does not leave diverse defendants who believe that they have been misjoined with nondiverse parties or resident defendants without a remedy for separating the claims. Rather, the issue of whether claims have been misjoined under state law would simply be deferred to the state court in which the action was filed, where such questions logically should be resolved. (117) In addition, the federal removal statute allows a thirty-day window from the receipt or service of the complaint for a defendant to file a notice of removal to federal court. (118) However, if the case as stated by the initial pleading is not removable, the thirty-day clock does not begin ticking until the filing of an "amended pleading, motion, order or other paper" that allows the case to be removed. (119) Because the removal statute provides for a new window of opportunity to remove the action at whatever stage in which a case first qualifies for removal jurisdiction, the initial thirty-day time limit for removing an action should not affect a defendant's ability to first secure resolution of the misjoinder in state court before removing the claim. (120)

The removal statute also establishes an overall one-year time limit for removing a case based upon diversity jurisdiction that begins to run from the commencement of the action. (121) This deadline does not reset nor is it dependent upon the date that an action first becomes removable. (122) Thus, a defendant hoping to remove a suit to federal court would still need to ensure that misjoined claims are severed in the state court within a year of the commencement of the action. (123) It is doubtful that such a time frame would present a significant obstacle in the vast majority of cases to even the most minimally diligent of defendants. (124)

Because a diverse defendant may remove a claim to federal court once misjoined state law claims have been unlinked in the state proceeding, some courts have deemed the procedural misjoinder doctrine to be a complicated and unnecessary contrivance. As the Osborn court explained, "the better rule would require [the removing defendant] to resolve the claimed misjoinder in state court, and then, if that court severed the case and diversity then existed, it could seek removal of the cause to federal court." (125) The Wright, Miller and Cooper treatise also appears to endorse this view. (126) And as the Bird court concluded, "this rule permits the state courts to resolve the joinder issues without reference to a standard such as 'egregious misjoinder' and preserves the integrity of the concept that state procedural irregularities cannot have an effect o[n] the existence or nonexistence of federal court jurisdiction." (127)

Whether the procedural misjoinder doctrine is adopted or not, federal claims will continue to be heard in federal court, even when misjoined with unrelated state claims. Even if some defendants in actions based exclusively upon state law claims find themselves ultimately "trapped" in state court, where they might otherwise have been eligible to "escape" to the federal system on diversity grounds if procedural misjoinder was available, that result, at least in the view of Congress, does not appear to be inherently tragic. In the grand order of things, as Congress explained in withdrawing previous authorization to remove and sever unrelated state law claims for the purpose of creating diversity, "the need to provide removal for diverse defendants is not great." (128)