Should the Eighth Circuit recognize procedural misjoinder?

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

As some courts have observed in rejecting the doctrine, procedural misjoinder appears to be a judicially created response to Congress's narrowing of the removal statute, utilizing the concept as a means for allowing the removal of a case where a state claim that falls within diversity jurisdiction is joined with a state claim that does not. (96) Courts adopting the procedural misjoinder doctrine "have purported to replace the 'separate and independent claim' analysis with a test that evaluates the propriety of the joinder of claims under state law." (97) As the legislative history indicates, by changing [section] 1441 (c) in a plain effort to reduce the number of diversity cases removed to federal court, Congress intended to render cases in which state claims against diverse defendants are joined with viable state claims against nondiverse or resident defendants as non-removable, regardless of how related or unrelated the various claims may be. It is difficult to reconcile how the creation of a judicial doctrine that operates to circumvent this amendment to the federal removal statute could not be deemed contrary to congressional intent. (98)

B. LIMITED JURISDICTION

Federal courts, it will be recalled, are courts of limited jurisdiction established by the Constitution and federal statute. (99) This very carefully delineated jurisdiction "is not to be expanded by judicial decree." (100) As emphasized by Chief Judge Arnold in Hurt v. Dow Chemical Co., (101) "[t]he jurisdiction of the lower federal courts, both original and removal, is entirely a creature of statute." (102) The Supreme Court has established a presumption "that a cause lies outside this limited jurisdiction," has instructed that the federal removal statutes must be strictly construed in favor of state court jurisdiction, and has held that "the burden of establishing the contrary rests upon the party asserting jurisdiction." (103) The primary purpose of placing this high burden of proof upon a removing defendant is to ensure that district courts do not exceed the scope of their limited jurisdiction and thereby intrude upon the jurisdiction reserved to state courts. (104) With some justification, some courts have viewed the Tapscott notion of procedural misjoinder as an "improper expansion of the scope of federal diversity jurisdiction by the federal courts." (105)

This raises the corollary issue of whether the contours of federal removal jurisdiction should be permitted to fluctuate from district to district and be dependent upon the state in which a federal court resides. The United States Supreme Court has made clear that state procedural provisions cannot control the privilege of removal granted by federal statute. (106) As the Rutherford court noted, "the federal courts traditionally have held that matters of state civil procedure, including, presumably, joinder of parties and claims, have no bearing on the existence or nonexistence of federal subject matter jurisdiction in a given case." (107) In Shamrock Oil & Gas Corp. v. Sheets, (108) of course, the Supreme Court spoke directly to this issue: