Should the Eighth Circuit recognize procedural misjoinder?

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

In 1990, however, Congress amended section 1441(c) to eliminate diversity cases from its scope and restrict its application to cases involving a claim arising under federal law. (92) In so doing, Congress specifically intended that removal on grounds of diversity would no longer be authorized where the removing defendants contend that diverse state law claims have been joined with nondiverse state law claims that are separate and independent from each other.

The legislative history is quite clear on this point:

SECTION 109. REMOVAL OF SEPARATE AND INDEPENDENT CLAIMS

   This section implements, in modified form, the recommendation of
   the Federal Courts Study Committee on pages 94 and 95 of the
   Report, which advocated a simple repeal of 28 U.S.C. section
   1441(c). Section 109 would amend section 1441 (c) so as to
   eliminate most of the problems that have been encountered in
   attempting to administer the "separate and independent claim or
   cause of action" test. Most of the cases have involved the
   requirement of absolute diversity to establish diversity removal
   jurisdiction. The plaintiff, for example, might sue a diverse
   defendant for breach of contract and join a claim against a
   nondiverse defendant for inducing the breach. Courts have found the
   test very difficult to administer and have reached confusing and
   conflicting results. At the same time, the need to provide removal
   for diverse defendants is not great.

   The amendment would, however, retain the opportunity for removal in
   the one situation in which it seems clearly desirable. The joinder
   rules of many states permit a plaintiff to join completely
   unrelated claims in a single action. The plaintiff could easily
   bring a single action on a federal claim and a completely unrelated
   state claim. The reasons for permitting removal of federal question
   cases applies [sic] with full force. In addition, the amended
   provision could actually simplify determination of removability. In
   many cases the federal and state claims will be related in such a
   way as to establish pendant jurisdiction over the state claim.
   Removal of such cases is possible under Sec. 1441(a). The amended
   provision would establish a basis for removal that would avoid the
   need to decide whether there is pendant jurisdiction. (93)

As the legislative history confirms, Congress retained the ability to remove joined claims and remand some of them for the reason that they are not sufficiently related in only "one situation" that it deemed desirable-where a removable "federal claim" has been joined with a "completely unrelated state claim." (94) In cases where both removable and non-removable claims arise under state law, section 1441(c) no longer authorizes the removal of the case on diversity grounds even if the claims are totally separate and independent. In other words, "one of the situations that [section] 1441(c) was originally designed to prevent--allowing a plaintiff to defeat federal court diversity jurisdiction simply by joining removable and non-removable claims in a single state court action--no longer falls within the ambit of the statute." (95)