whalen i'm here behalf of the appellant a plaintiff class that was certified by the louisiana state court the whole removal in this case the class litigated claims against numerous defendants in state court for about ten years although homeland was added to the lawsuit back in two thousand and eleven and although it already litigated insurance coverage issues in state court it removed the case in two thousand and nineteen after the class amended its petition in order to a ser faith claim homeland remove the case without objecting to the amendment without filing a motion to sever or without doing anything else and state court to raise its improper jointer objection instead whom writ homeland removed to the federal court and argued to the federal court that interstate procedural laws the best faith claim had been improperly joined in this case i'll review the facts and i'll argue two main ones st the district court erred denied the classes motion to remain and partially remained in this case to state court based on that we believe the theory of egregious improper miss jointer and nd that the district court erred in holding that the classes claim against homeland is barred by raised judicata because a delaware state court previously dismissed the claim this time barred under delaware law first some background homeland owed insurance coverage to another defendant corbell corporation insurance coverage claim against home life from that point forward there were two separate litigation tracks the class litigated insurance coverage issues with homeland in state court in louisiana while corvette asserted in pursuit of bad faith claim in delaware against whom when initially all of the claims against homeland were successful the louisiana state court found that there was coverage and ruled in favor of the class and against homeland and in delaware the trial court held that court homeland head and gauged in bad faith insurance practices and it rated the judgment in favor of core value and the amount of thirteen and a half one million dollars  damages and penalties but that ruling of the delaware court was reversed by the delaware supreme court on statute of limitations grants the delaware supreme court did not address the merits and so believing that the claim the substantive right to sue homeland still existed poor villa signed the claim to the class the class asserted the claim in this existing class action proceeding in louisiana state court and it did so for several reasons most notably hoagland remained a party to the case under the louisiana procedural or because it had not been dismissed as a defendant also home when the class had already litigated insurance coverage issues and the coverage issues that relate a gated or related to the bad faith claim you can't have a bad faith claim under louisiana wallace you already have insurance cover well homeland asserted homeland removed it did not object to the amendment of the petition in the e c m state court it did not file an exception of improper jointer which would have been available the homeland of louisiana law it simply removed a federal court and presented to the federal court it's a louisiana procedural law argument and that brings us to our st issue on appeal the district court's improper or partial remand of this case to state court most fundamentally setting aside for a minute the concept of fraudulent jointer there is no statutory authority for the partial removal of a case based on diversity jurisdiction and those statute authorizes a federal court to partially remained a case the removal statues govern the remove ability of quote civil actions not specific claims against specific parties and to remove a case based on diversity jurisdiction you must have both complete diversity and there must not be a citizen of the state where the action was file this court explained in the grey vs beverly enterprise's case that the existence of even a single viable claim against an in state defendant requires that the entire case be remained in state court and as far as i know this court has never condoned the remained of a viable claim against an in state defendant and the retention of jurisdiction over claims against diverse defendants now that brings me to fraudulent jointer which is a recognized plaintiffs cannot establish a cause of action against the non diverse party in state court neither of those removal grounds exists here because homeland did not remove based on fraudulent jointer who land removed based on the theory of egregious improper mis jointer which is said to apply when you have multiple viable claims in a particular case but those claims are improperly joined together in a single  corvallis s i n e pursuing a bad faith claim against own land that it held that those claims had been improperly joined together and found that it was appropriate to sever those quiet sever the medcom claim the local defended claim and send it back to state court two completely distinct class action proceedings you have one group of plaintiffs suing a group of diverse defendants and you had a separate group of plaintiffs group of non diverse defendants on the th circuit hill that those two separate class capacities i'm sorry i thought there was a citation to write a miller where it said that a plane at suing into capacity is invites severance well i don't disagree that in this instance when you have an assigned claim that it's appropriate to look at both capacities when you're evaluating jointer ok are you saying that you could pass these are treated as if they're two different plaintiffs yes you're right i think it's appropriate well it's appropriate to look at the point of class in both capacities because it has brought in a sign claim i do think that that's accurate and that being the case the case was removed to federal court the improperly revived claim of the class various is meant was treated as mr joined with the assignment claim because they are entirely different claims one is a bad faith insurance coverage case and the other is whatever your original claim was so the judge said those are not properly before me i get rid of those should not defeat the defendant's right to removal however we don't agree with that case procedurally specifically a federal court in our view should not be evaluating whether or not joint or was appropriate in state court when a case is filed under state procedural i mean i didn't interpret him as ruling now way i thought he was making rule twenty one argument but i think that's right one  other question is why why is it not plausible to consider this case appropriate for amanda under case where i'm sorry appropriate for move all where this to the extent that the plaintiffs are assamese here this is an entirely different claim and it should be evaluated differently idea that this type of claim can be removed based on capitalist diction because although it's asserted technically by a class it's an assigned claim that but for the assignment would be a st party insurance claim between an insured and an insurer i don't believe that homeland has yet addressed that specific issue that seems to be a concern of the district court also even in a caf case i don't believe that a partial  remained in action is proper under the federal removal statutes class action is defined in kava as a civil action and only a civil action can be removed and here the dish for court has already remained did the classes claim against local defended medcom so it would be we don't think that that water agreement of medco is reviewable on appeal or otherwise under federal law and we don't think that the district courts error and partially remaining the case could be fixed now  kappa any kind of things like your you know having your cake and eating it too in that context i agree your honor that's why i don't think that there should be kept a jurisdiction exercised i think if you're going to treat the classes to separate  plaintiffs you have to recognize that with respect to class action fairness act jurisdiction that the class is treated as core valve that's what the district court said it was doing here and that's why i don't believe capitalistic is appropriate as to rule twenty one we don't think rule twenty one should be used in the manner that homeland says it should be used in this case rule twenty one should be used to sever a viable claim against him in  state defended and retain jurisdiction over claims against diverse defendants and argue that puts the cause for the horse because procedural rules you'd be used to manufacture diversity jurisdiction where it otherwise doesn't exist that's why we have a rule eighty two related to well wait a minute i mean it isn't fair to say that you manufactured diversity you manufactured state court jurisdiction by reviving this claim against men where you had gone proof where you are i don't believe that that the the class the point of class manufactured a claim against medcom i believe that medco when this case was initially filed was  would the judgment look like your honor there may be insurance coverage i personally i'm not sure about that but i know it's an existing climb it's a cut i don't th claims and then there are clear there frivolous claims and as far as insurance coverage goes i suspect that an insurer would say the case has been pending without doing anything for a long time i don't know when their duty to cover lapses but if the corporation has been dissolved or probably and been paying premiums either i'm not sure about that your i don't know if med comp has been paying premiums yes my be this case would not be in federal court if i'm sorry right if you had gone back to louisiana state court in a capacity me and it simply taken up the role you would have been liable to removal under case if you hadn't reported to revive the claimant are there any other defendants back there that you didn't done here we believe it was appropriate for the class to bring this claim in this proceeding and we request that either this court find that there is no federal court jurisdiction or reversed the district court's order of dismissal of the homeland c  did you we've got another case on the docket this morning which poses a real interesting issue of what do you call it a double jeopardy and the law under double jeopardy seems to suggest that when the statute of limitations says run against a defendant that's a decision on the merits and just as matter of theory why in the criminal context would double jeopardy be a decision on the merits and not in the civil context and maybe that's just oracle anyway we'll move to misstep thank you your hon about here is a class of health care providers who gave services to patients under workers compensation and whose bills were discounted that class was defined as workers comp health care providers from two thousand  to two thousand and six now just shows you pointed out that about eight or nine years after the claim against med comp had remained completely moribund that class he now and in a different capacity as an assigned bringing a by a plaintiff class in a different capacity for bad face denial of coverage relating to a different entity no longer in the case under a different louisiana statute which rose from a dance long after the class period closed so all of your questions relating to the contrivance that we think gave rise to this removal and to the district court's decision i think were very well taken this was a circumstance where the pursued in eight or nine years at the time they filed this particular amendment to their lawsuit and the course that gives rise to a joinder issue on removal now i want to start with m new premise which is that only a civil action can be removed we completely agree with that but that doesn't answer the question that the supreme court has answered for a one hundred years starting if not before wilson in wilson  twenty one that this court has answered repeatedly in the district courts all over the country of things or which is if a defendant or a plaintiff is fraudulent me joy then the question arises at the removal stage about what to do with that happens after removal and as this court has pointed out as many district courts in this circuit have pointed out there are really a couple different jointer paths here that might be relevant one of them is what this court now calls improper join and the nd is what's called improper mis joined or sometimes called fraudulent mis joined improper joinder boils down to the circumstance where aside from if that truly fraudulent pleading the circumstance where a plaintiff has brought a claim against a jurisdiction spoiling defendant but that clain doesn't exist in state court there is no reasonable possibility that the plaintiff could recover against that non diverse defendant in state court that's fraudulent or improper glues two completely different lawsuits to each other that's a mystery under now i think you can think about this case actually in either of two ways and i think the magistrate judge for his part you know did somewhat the same and no it doesn't there is no claim running from the plaintiffs as assigned me to medcom for all of the reasons that i mentioned earlier there is no allegation if ever in this case of any kind of joint liability two because they're in different capacities i don't think that right and miller is dealing with that issue in the context of diversity jurisdiction removal and i don't and perhaps you can tell me is there a case in our two different people i guess i don't see that or the trustees the wrong wrong thing and cite me somebody judge poe assigned me to a cause of action and then i also had my own cause of action and i sued you standing in front of them were the same people and the louisiana court said no they're here in different capacities there is not who is the as they are designed the worst intersection for a custom made i must admit is whether you can split the same person into two different table for diversity jurisdiction purposes and i don't see a case that says you can or should and that is that what right a miller is talking about when he says the miss joy her issue what right and miller is talking about  take your point maybe a way to answer it that way i'm just saying i don't see that it does get ice i see what you're driving at and i think that you answer is you know right miller doesn't speak to diversity jurisdiction in this circumstance but i think separate one from the other if the claims are so distinct as to be two different cases as judge jones put it then you go back to those fraudulent joinder of the stronger principles because what we're talking about here of course it is to your agree with mr wheeler that the fact that they're defined does not mean that the case is over if we were just dealing with a case against medcom forget all the diversity we're sitting at has a louisiana state mor terminated in louisiana which means it's no longer an operating concern under museum all of that gives rise to the question among other things in your piece about whether there is any significant relief that could lie against this defunct corporation against whom the plaintiffs had no interest in pursuing what they now say is a huge plane i don't think that feelings in strategy and all that are really part of diversity jurisdiction court veteran courts records of limited jurisdiction so we shouldn't be just while medcom if there isn't meant comp if it has a lawyer or if it has a lawyer it's liable for to obtain dismissal for want of prosecution because no no court let something sit without activity against a defendant for nine years and then if it does have a lawyer then it would argue that it did you know it's a it's a frivolous case because they can't obtain a judgment so right and i think that's all correct and i think detains you know we're not arguing kind of the extremes of of what your positing here we're not arguing that somebody just take a look at this and you can call about whether or not there's diversity jurisdiction we're not arguing that because mankind is difficult to do that it's no longer in the case of the problem solved you know it is more complicated than that as we pointed out but the point that we're making here is the point that has been adopted over and over and over again by probably two dozen different decisions in this circuit alone that when you have two cases that don't belong stuck to each other a federal  something about that now to your point joe jones it certainly is available in certain circumstances for a defendant in the state court to try to set or at that point before bringing the case up to the court of appeals crock diversity jurisdiction is the grounds for removal it's an accommodating time limit but i think a defendant particularly defendant in a court that has let a case sit for eight or nine years against another defendant a defendant is well within its rights under miss joinder enjoying your jurisprudence to bring mickey up to the court to the federal court just as it has been permitted to do for decades if not a couple centuries of this might and to ask the federal cooler to keep a look at the join your question no it's a thirty dollars day clock it can be extended in some circumstances depending on the nature of the filing that gives rise to the removal but as you can imagine a defendant confronting both the thirty day class any non  sitting in a louisiana state court that as i mentioned did nothing with medcom for eight or nine years has every right and has the prerogative to teach this issue up to the federal court and ask though if you have now died aged of you were you were not again we're awaiting gave thirty one provided by the very you know echoing judge changes point in just what i don't want to speak to kind of what the beliefs were but i do think that that is a worry that defendants would have that we wouldn't get a ruling from the state court in time and the state court process isn't the kind of precludes of the federal process and this i think is where the chap's got concept really comes to the fore and if if you want to compare the two types of kind of mr going to earth fraudulent jointer that we're talking about here you know one of them asks the question is there any reasonable possibility of recovery against the defendant that's what this court calls improper joined or as i mentioned the miss jointer questions essentially ask is there any reasonable basis up their hands and said we don't know what it really just means we're not going to play taps what i'm suggesting is that and this goes to judge teens is point about being uncomfortable with extending diversity jurisdiction well i'm suggesting is that you look at the scene thing and you ask the same rigorous question that you do in the improper joinder context you say let's talk about that because we have taken several on box on this topic most recently being flagged versus striker which you all did cite but which goes through what are the bases to do that when you don't have on the face of it the versity and you have to do something different about the actual fraud nobody's claiming that so then you have the the jointer issue and it doesn't not at all d adopt have scott it says you don't have a cause of action against the end state defend it and you all are not and cannot contend they don't have a cause of action you may say it's not much of it is going to be all that successful and all that's where the question is that is the asked and he they couldn't sue there are two different paths to the same answer chains if you accept the idea that this plaintiff class is operating in our going because we take cases on bond obviously to address the case in question but also to address that general area and we have not said that i mean i was in the dissent in flag but i'm bound by why but it certainly doesn't say what you're saying i i believe that this court has repeatedly adopted the basic principle of fraudulent jointer i think where the action is is on this question  you know mr who even times it's you know has has this court adopted fraudulent miss jr the attaching together of two claims now as this court pointed out a couple different times in benjamin moore that is a concept that gives  that it can be disjoint and sent back to distributed to the state courts for purposes of for purposes of diversity jurisdiction quickly on race judicata i think the problem with mr whalen's argument is that delaware courts have said repeatedly that a judgment on statute of limitations grounds is a judgment on the merits that is the end of the inquiry for the federal district court asked to review that question now i'm sorry everything is frozen on my screen except my well now it's down to zero would you respond i thought mr whalen had cited in delaware court cases from twenty or thirty years ago that held to the contrary embrace which goes through the delaware statue limitations principles quite certainly and mr women's response to embrace is that embraces different because that involved a different statue limitations questions it is absolutely the same as what the federal district court removed from the louisiana state board the louisiana state who or would not have had to apply go along under i mean under diluted law would not have had to apply the statue of limitations would not have been precluded so there why kit why is the  did mr whalen ok there i am first even if the class has two separate capacities and at this point in time we don't think that this case remove one time and failed after making it improper join the argument and that defendant went back to state court and it filed a motion to sever in state court and then it removed again because it obtained a severance and i have advised saying homeland to do here yes your honor we think that that's appropriate and we don't think that there is a timing argument because wasting all everybody's time and money on this i mean it's very unfortunate if we end up right back in federal court not maybe it's their fault maybe i'm assessing blame incorrectly but what i'll say you are is i don't believe that it was improper of the class to assert the bad faith claim in this lawsuit because of how this case of volved over the past decade in louisiana state court sitting in a vacuum today one may be able to say that the claims are not related however the way the case of volved the medco which initially joined as a defend it was the common denominator amongst all of the defendants well and stand and i suppose you probably i mean a smart plaintiff's lawyer probably wouldn't a pursued them if you didn't think they could you could get any money against them that's i don't that's central issue in the case before the museum a state court became the insurance issue whether or not homeland owed insurance coverage a bad faith claim is directly related to that coverage issue and homeland ever complained before the bad faith claim was asserted that the insurance coverage claims should not have been litigated in the same case as the medcom claims we think it was appropriate to file the related bad faith claim in this case a dressing room where the full faith and credit act and the dismissal of the case requires that the federal court sitting in louisiana look at the nature and scope of that of the delaware judgment and determine whether it's in title it's broke loose of a fact that's the in our view the the flaw in an base which the district court citing in homeland's argument on appeal and in the district court's reasons all of them act as though this case is a successive lawsuit filed in the state of delaware we agree that if the case had been refiled in delaware residue to kollywood or that case a litigant would be precluded from raising the mission twice in delaware but that has nothing to do with whether or of limitation judgments is that they are procedural that they could not preclude litigants from refiling claims in states with longer statutes of limitations and so we think that the court erred including here that it was required by the full faith  act to just to dismiss the classes claim against someone and but you didn't make that argument in the in the district court did you your honor i believe the briefing in the district court was sufficient to raise that issue i think that the forfeiture rule that homeland sites is there to make sure that the district court has the opportunity to rule on an issue and this is the specific issue the district court ruled on we did cite additional authorities  but i think we're permitted to do that don't think that the forfeiture rule applies here well well well we can decide that for ourselves also of course well it's a very interesting case and good argument so thank you both very