Fraudulent Joinder: Strategies for Removal to Federal Court

Selecting a jurisdiction is a critical litigation decision—and can be outcome-determinative. Plaintiffs’ counsel deploy myriad tactics to keep their cases in the jurisdiction they deem most advantageous. This includes plaintiffs’ counsel's seeming interest to keep cases in state, as opposed to federal, court. One particular tactic to effectuate this plan is nicknamed “fraudulent joinder,” which involves improperly joining non-diverse “throw away” defendants—such as sales representatives, insurers, or individual employees—for the sole, strategic purpose of destroying diversity and keeping a litigation in the selected state court.

But “fraudulent joinder” is a misnomer: It does not—and should not—require the heightened showing of fraud. Indeed, a number of courts have recognized that “improper joinder” is preferred over the term “fraudulent joinder.” See, e.g., Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 571 n.1 (5th Cir. 2004); Advanced Indicator & Mfg., Inc. v. Acadia Ins. Co., 50 F.4th 469, 473 n.1 (5th Cir. 2022).

Instead, recent cases have highlighted how, when faced with improper joinder, defendants may pierce pleadings with extraneous evidence, leverage conclusory allegations, and utilize other methods to effectively remove cases to federal court.

Recognizing the use of improper joinder, knowing the case trends, and harnessing strategies to mitigate against it can be the difference that results in removal to federal court. This article provides strategic guidance to defense attorneys for how to best position a matter for successful removal to federal court when they encounter a case of improper joinder.