PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 21-2702

____________

MICHAEL AVENATTI,

Appellant

v.

FOX NEWS NETWORK LLC, 

a Delaware Limited Liability Company;

SEAN HANNITY; LAURA INGRAHAM; 

MARIA BARTIROMO;HOWARD KURTZ; 

SHANNON BREAM; BRET BAIER;

TRISH REGAN; RAYMOND ARROYO; JON SCOTT; 

LELAND VITTERT; JONATHAN HUNT

_________________

On Appeal from the United States District Court

for the District of Delaware

(District Court No. 1:20-cv-01541)

District Judge: Honorable Stephanos Bibas, Circuit Judge

_________________

Argued June 7, 2022

(Filed: July 21, 2022)

Before: AMBRO, RENDELL, and FUENTES, Circuit 

Judges.
2

Shawn R. Perez [ARGUED]

Suite 113-38

7121 West Craig Road

Las Vegas, NV 89129

Counsel for Appellant

Eric M. George [ARGUED]

ELLIS GEORGE CIPOLLONE O'BRIEN & ANNAGUEY

2121 Avenue of the Stars

Suite 2800

Los Angeles, CA 90067

David E. Ross, Esq.

ROSS ARONSTAM & MORITZ

1313 North Market Street

Suite 1001

Wilmington, DE 19801

Counsel for Appellees

Eugene Volokh

UCLA SCHOOL OF LAW

385 Charles E. Young Drive

Los Angeles, CA 90095

Counsel for Amicus
3

__________

OPINION OF THE COURT

_________

RENDELL, Circuit Judge.

The plaintiff is master of his complaint, but his power is 

not absolute. District courts have authority of their own to 

structure the litigation before them and, in doing so, prevent 

manipulation by the parties. This includes policing the 

addition of new parties whose presence would unravel vested

jurisdiction.

Michael Avenatti, surprised to find his case removed 

from the Delaware Superior Court on diversity grounds, 

amended his complaint to add a new, nondiverse defendant as 

of right, see Fed. R. Civ. P. 15(a)(1)(A), and then moved for 

remand. But the District Court rejected Avenatti’s motion, 

invoking its discretionary authority under Federal Rule of Civil 

Procedure 21 to drop the interloper from the case and restore

complete diversity. We conclude this approach was proper, 

even though the jurisdictional ‘spoiler’ was added by an 

amendment as of right. Accordingly, we will affirm.

I. BACKGROUND

Plaintiff-Appellant Michael Avenatti is a celebrity 

lawyer who rose to public prominence in early 2018 by 

representing Stephanie Clifford (a/k/a Stormy Daniels), a 

woman with whom then-President Trump had allegedly had an 

extra-marital affair. But Avenatti’s freshly minted fame soon 

took on a different hue when, in November 2018, he was 

arrested by officers of the Los Angeles Police Department. 
4

Given his public profile, his arrest was covered extensively in 

the media, including by Defendant-Appellee Fox News 

Network (“Fox News”) and the individual DefendantAppellees, all of whom were on-air personalities for Fox News. 

Avenatti claims that the Defendants engaged in a “purposeful 

and malicious” campaign of defamation and slander against 

him by lying, on air and in print, about the details of his arrest. 

On November 12, 2020, Avenatti sued in Delaware 

Superior Court. In his initial complaint, he described allegedly 

defamatory statements made by all the Defendants, including 

Fox News employee Jonathan Hunt, but Avenatti chose not to 

name Hunt as a Defendant. Four days later, Fox News 

removed the case to the U.S. District Court for the District of 

Delaware, asserting that there was complete diversity among

the parties: Avenatti was a California resident, while none of 

the named Defendants were.1

Avenatti did not accept this sudden removal to federal 

court lying down. Instead, on November 19—three days after 

the case was removed and seven days after it was initiated—

Avenatti filed an amended complaint in the District Court. 

Because the amended complaint was entered within twenty1 As a Delaware citizen, Fox News would not ordinarily have 

been permitted to remove to federal court in Delaware. See 28 

U.S.C. § 1441(b)(2). Here, however, removal was proper 

because Fox News had not been properly served at the time. 

See Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 

147, 152–54 (3d Cir. 2018). It was not necessary for any of the 

named Fox News employees to join in the removal because 

they had not yet been served at all. See Lewis v. Rego Co., 757 

F.2d 66, 68 (3d Cir. 1985).
5

one days of the initial complaint, Avenatti did not require leave 

of court or the opposing parties. See Fed. R. Civ. P. 

15(a)(1)(A). The amended complaint differed in two respects: 

first, it named Hunt—a California resident—as a Defendant; 

and second, it alleged that Hunt had published an article online 

about Avenatti’s arrest which included the same defamatory 

accusations previously attributed to the other Defendants. Five 

days after filing the amended complaint, Avenatti moved to 

remand the case back to state court, arguing that his addition 

of Hunt—who shared Avenatti’s California citizenship—had 

destroyed diversity, thus depriving the Court of subject matter 

jurisdiction.2

 

The District Court denied remand. Avenatti v. Fox 

News Network, LLC, No. 20-CV-01541-SB, 2021 WL 

2143037, at *1 (D. Del. May 26, 2021). In a thorough and 

well-reasoned opinion, the Court concluded that it had 

discretionary authority under Rule 21 to drop Hunt from the 

litigation and thereby restore complete diversity. Id. at *2 

(citing Fed. R. Civ. P. 21 (“On motion or on its own, the court 

may at any time, on just terms, add or drop a party.”)). In doing

so, the Court considered the four-factor test of Hensgens v. 

Deere & Co., 833 F.2d 1179 (5th Cir. 1987), to guide its 

discretion. In Hensgens, the Fifth Circuit laid out an openended balancing test for considering post-removal 

amendments that add nondiverse parties, asking:

• “the extent to which the purpose of the 

amendment is to defeat federal jurisdiction,”

2 In his motion for remand Avenatti informed the District Court 

that, prior to filing the motion, he had unsuccessfully asked 

counsel for Fox News to consent to remand.
6

• “whether plaintiff has been dilatory in 

asking for [the] amendment,” 

• “whether plaintiff will be significantly 

injured if [the] amendment is not allowed,” 

and 

• “any other factors bearing on the equities.”

Id. at 1182. As we explain below, considering this test as a 

guide to Rule 21’s “just terms” condition was permissible.

Here, the District Court applied the Hensgens factors 

and found: Hunt had been joined to defeat diversity; Avenatti 

would not be prejudiced by Hunt’s excision because he was 

dispensable; and, although Avenatti had not been dilatory,

federal jurisdiction should be retained by dropping Hunt. 

Accordingly, it dismissed Hunt and retained jurisdiction.

On August 13, 2021, upon Defendants’ motion, the 

District Court dismissed the amended complaint without 

prejudice, finding that Avenatti had not pled plausible 

defamation claims against any Defendant. Avenatti did not 

contest the motion, and, after dismissal, he informed the 

District Court that he intended to stand on his amended 

complaint. The Court then dismissed his complaint with 

prejudice. 

This appeal followed. Before us, Avenatti trains his fire 

on the District Court’s denial of remand. He argues that the 

case should have been returned to state court, and so the 

District Court was without jurisdiction to dismiss his amended 

complaint.
7

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review the District Court’s 

orders under 28 U.S.C. § 1291. The District Court’s disputed 

jurisdiction was premised on 28 U.S.C. §§ 1332(a) and 1441. 

“[A] federal court always has jurisdiction to determine its own 

jurisdiction.” United States v. Ruiz, 536 U.S. 622, 628 (2002).

We exercise de novo review over the District Court’s 

denial of the motion to remand, as the underlying basis for the 

denial implicates a question of law. Ario v. Underwriting 

Members of Syndicate 53 at Lloyds for 1998 Year of Account, 

618 F.3d 277, 287 (3d Cir. 2010). If the District Court’s 

invocation of Rule 21 to resolve the remand motion was legally 

proper, then we review its application of the Rule for abuse of 

discretion. See DirecTV, Inc. v. Leto, 467 F.3d 842, 844 n.1 

(3d Cir. 2006) (“We review the District Court’s decision to 

drop parties under Rule 21 for an abuse of discretion.”); see 

also Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 762

(7th Cir. 2009). The determination of a party’s dispensability

is also reviewed for abuse of discretion. Steel Valley Auth. v. 

Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 

1987). Finally, we review the District Court’s resolution of the 

motion to dismiss de novo, Doe v. Princeton Univ., 30 F.4th 

335, 341 (3d Cir. 2022), and its factual findings for clear error,

FTC v. AbbVie Inc., 976 F.3d 327, 368 (3d Cir. 2020).

III. THE DISTRICT COURT DID NOT ERR BY DROPPING 

HUNT AND RETAINING JURISDICTION

When a plaintiff files suit in state court but could have 

invoked the original jurisdiction of the federal courts, the 

defendant may remove the action to federal court. 28 U.S.C. § 

1441(a). The party seeking removal has the burden of 
8

establishing federal jurisdiction and we interpret the removal 

statute narrowly, resolving any doubt in favor of the plaintiff’s 

choice of forum in state court. Brown v. Jevic, 575 F.3d 322, 

326 (3d Cir. 2009). Fox News properly removed this action to 

the U.S. District Court for the District of Delaware based on 

diversity jurisdiction.

Just after removal, Avenatti amended his complaint as 

of right to add Hunt as a defendant, seeming to undo the

complete diversity upon which jurisdiction was premised. Had 

Avenatti sought leave of court for this addition, then 28 U.S.C. 

§ 1447(e) would have governed the situation. Under § 1447(e), 

“[i]f after removal the plaintiff seeks to join additional 

defendants whose joinder would destroy subject matter 

jurisdiction, the court may deny joinder, or permit joinder and 

remand the action to the State court.” As Avenatti points out, 

because the text of § 1447(e) by its terms applies where a 

plaintiff “seeks to join” a nondiverse defendant, it is not 

obvious that it covers party additions effected by way of Rule 

15(a)(1)(A) amendments. Those amendments do not normally 

require any seeking; they are simply accomplished. Avenatti 

thus contends that, without recourse to § 1447(e), the District

Court was left with only two options: (1) remand to state court;

or (2) inquire whether Hunt could be dropped under the

doctrine of fraudulent joinder.

The District Court rejected these proposed alternatives, 

calling instead on its discretionary authority under Rule 21 to 

drop Hunt and restore complete diversity. In doing so, the 

Court invoked the four-factor test of Hensgens v. Deere & Co., 

833 F.2d 1179 (5th Cir. 1987), to guide its discretion. Avenatti 

insiststhat the Court should have used fraudulent joinder rather 
9

than the Hensgens factors—and that the Court misapplied the 

factors in any event.

We think the District Court chose the correct path. 

Where, as here, a nondiverse defendant has been added postremoval by amendment as of right, courts may sua sponte 

consider dropping the spoiler under Rule 21. If the new 

defendant is dispensable and can be dropped without 

prejudicing any party, then courts may go on to consider the 

Hensgens factors to guide their discretion “on just terms.”

A. Rule 21 gave the District Court discretion to drop 

Hunt

Remand is not automatic whenever a nondiverse party 

is present in the case: Rule 21 empowers courts to police the 

litigation’s cast of characters. See, e.g., Newman-Green, Inc. 

v. Alfonzo-Larrain, 490 U.S. 826, 832 (1989) (“[I]t is well 

settled that Rule 21 invests district courts with authority to 

allow a dispensable nondiverse party to be dropped at any time, 

even after judgment has been rendered.”). This authority can 

be exercised to preserve subject matter jurisdiction. See, e.g., 

id.; Occupational Therapy, Inc. v. RHA Health Servs. Inc., 357 

F.3d 375, 381 n.6 (3d Cir. 2004) (“[I]t is well established that 

courts . . . have the power under Fed. R. Civ. P. 21 to dismiss 

dispensable parties to the suit in order to preserve diversity.”); 

Publicker Indus., Inc. v. Roman Ceramics Corp., 603 F.2d 

1065, 1069 (3d Cir. 1979) (“The [district] court may dismiss a 

nondiverse party in order to achieve diversity even after 

judgment has been entered.”); Call Ctr. Techs., Inc. v. Grand 

Adventures Tour & Travel Pub. Corp., 635 F.3d 48, 51 (2d Cir. 

2011) (explaining that nondiverse, dispensable parties may be 

dismissed under Rule 21 at any time, so long as doing so does 

not cause prejudice); see also 7 C. Wright, H. Miller, & E. 
10

Copper, Federal Practice and Procedure § 1685 (3d ed. 2016)

(“[C]ourts frequently employ [Rule] 21 to preserve diversity 

jurisdiction over a case by dropping a nondiverse party if the 

party’s presence in the action is not required under [Rule] 

19.”).

A district court’s Rule 21 authority is discretionary but 

not unlimited. See DirecTV, Inc., 467 F.3d at 845 (“[T]he 

discretion delegated to the trial judge to dismiss under Rule 21 

is restricted to what is ‘just.’”). The court cannot drop 

indispensable parties, Newman Green, Inc., 490 U.S. at 832;

Fed. R. Civ. P. 19(b), and it must assure itself that its actions 

will not prejudice any party, DirecTV, Inc., 467 F.3d at 846.

Significantly, because Rule 21 does not contain explicit 

standards governing the propriety of joinder or severance—

that is, what constitutes “just terms”—courts sometimes “must 

incorporate standards to be found elsewhere” in exercising 

their Rule 21 discretion. See, e.g., Pan Am. World Airways, 

Inc. v. U.S. Dist. Ct. for Cent. Dist. of California, 523 F.2d 

1073, 1079 (9th Cir. 1975); Acevedo v. Allsup’s Convenience 

Stores, Inc., 600 F.3d 516, 521 (5th Cir. 2010); see also Halo 

Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S. 93, 103 (2016) (“[A] 

motion to a court’s discretion is a motion, not to its inclination, 

but to its judgment; and its judgment is to be guided by sound 

legal principles.”). 

Here, the District Court hit all the key notes in the Rule 

21 analysis. It confirmed the applicability of the Rule by 

deciding: (1) Hunt was a dispensable party under Rule 19; and 

(2) that dropping him would not be prejudicial. For reasons we 

discuss below, the Court’s conclusions on these questions were 

reasonable.
11

To further inform its analysis of what constituted “just 

terms” here, the District Court also considered the Hensgens

factors. Again, this was appropriate. See, e.g., Bailey v. Bayer 

CropScience L.P., 563 F.3d 302, 308–09 (8th Cir. 2009) 

(holding Rule 21 empowered the district court to drop a 

nondiverse party based on application of the Hensgens factors, 

where party was added after removal); Schur, 577 F.3d at 759 

(stating that courts should apply the Hensgens factors to

“determine[e] whether post-removal joinder of a nondiverse 

party is appropriate”). The factors hardly limited the scope of 

considerations that the Court could examine. See Hensgens, 

833 F.2d at 1182 (courts should consider “any other factors 

bearing on the equities”). Instead, Hensgens provided some

helpful guideposts that focused the District Court’s attention 

on the most important questions relevant to the issue presented, 

allowing it to make an informed, rational judgment about 

whether to retain jurisdiction by dropping Hunt. As § 1447(e) 

and Rule 21 both give district courts the same broad discretion 

in making the same underlying decision—whether to retain 

jurisdiction—we see no reason why courts should be forbidden 

to consider the same factors in exercising power pursuant to 

either provision.

One of our sister circuits has considered this issue in a 

similar situation, and its conclusions accord with our decision. 

See Mayes v. Rapoport, 198 F.3d 457, 462 n.11 (4th Cir. 1999). 

In Mayes, the defendants removed a contract case to federal 

court based on complete diversity. Id. at 459–60. Immediately 

thereafter, the plaintiff added an additional nondiverse 

defendant without leave of court via a Rule 15(a) amendment. 

Id. at 462 n.11. The district court nonetheless retained 

jurisdiction on a fraudulent joinder analysis. Id. at 460. On 

appeal, the Fourth Circuit discussed the complications
12

presented by this posture in a lengthy footnote, observing that 

Rule 15(a) amendments have the latent potential to force 

remand without judicial scrutiny. Id. at 462 n.11. Ultimately, 

however, the Circuit found those amendments should be 

analyzed as though § 1447(e) applied:

Reading Rule 15(a) in connection with Fed. R.

Civ. P. 19 and 21, and 28 U.S.C. § 1447(e), 

resolves any doubts over whether the district 

court has authority to pass upon any attempts—

even those for which the plaintiff needs no leave 

of court—to join a nondiverse defendant. . . . [A]

district court has the authority to reject a postremoval joinder that implicates 28 U.S.C. 

§ 1447(e), even if the joinder was without leave 

of court.

Id. Significantly, the Fourth Circuit cited Hensgens to support 

its conclusion:

Since no party raised the fact that [the added 

defendant] was not diverse, and since the district 

court had no prior opportunity to pass upon the 

propriety of [his] joinder, the district court 

properly could have invoked its authority, under 

§ 1447(e) and related authority, to determine 

whether [he] was an appropriate party. See 

Hensgens v. Deere & Co., 833 F.2d 1179, 1182 

(5th Cir. 1987) (vacating joinder order because 

district court permitted post-removal joinder of 

nondiverse party “as a routine matter,” without 

actually exercising discretion over the joinder).
13

Id. (emphasis added). Our discussion above clarifies the 

relationship—left vague by the Fourth Circuit—between Rule 

21, Hensgens, and § 1447(e) in these circumstances.

Other Circuits have reached similar results in analogous 

circumstances. In Bailey v. Bayer CropScience L.P., for 

instance, the Eighth Circuit inquired whether a district court 

could reconsider its earlier decision to permit the addition of 

two nondiverse parties (by permissive amendment), where the 

court had previously failed to grasp the jurisdictional 

consequences. 563 F.3d at 302. The Circuit found that the

district court could do so and had permissibly dropped the 

spoilers under Rule 21. Id. at 308–09. The Circuit even 

approved the district court’s use of the Hensgens factors to 

guide its decision. Id. (“[T]he district court accurately 

considered the relevant [Hensgens] factors and held the 

balancing test weighed against the addition of the nondiverse 

defendant.”). 

Likewise, in Schur v. L.A. Weight Loss Centers, Inc., the 

Seventh Circuit decided that district courts may drop a 

nondiverse party whose addition (by permissive amendment)

was previously approved by a magistrate judge. 577 F.3d at 

762. The Circuit cited Mayes and Bailey for support and 

adopted the Hensgens factors as the appropriate “framework 

for determining whether post-removal joinder of a nondiverse 

party is appropriate.” Id. at 759. It emphasized that neither the 

magistrate judge nor the district court had previously analyzed 

the propriety of the joinder; yet the latter had to have at least 

one chance to exercise discretion over whether the spoiler’s 

presence should be permitted to defeat jurisdiction. Id. at 761.
14

Mayes, Bailey, and Schur all support our conclusion that 

district courts may exercise their discretionary authority to 

drop nondiverse parties added without leave of court after 

removal—and that they may consider the Hensgens factors 

when doing so. Litigants may not employ procedural tactics to 

deny the district court’s ability to reject new parties whose 

presence would defeat diversity. Once jurisdiction has vested 

in a federal court—which it did here upon removal from state 

court—careful scrutiny should be applied to any post-removal 

events threatening to wrench that jurisdiction away. See, e.g., 

Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 

1006, 1012 n.6 (3d Cir. 1987) (referring to the “long-settled 

(and salutary) policy that a plaintiff cannot artificially force a 

retreat to the first (state) forum by embarking purposefully on 

post-removal steps designed exclusively to foster remand” 

(citations omitted)).

B. Avenatti’s counterarguments fail to convince

Avenatti nonetheless insists that the District Court erred 

in several respects. 

First, he argues that the District Court could only have 

dismissed Hunt upon a finding that he had been fraudulently

joined. “The doctrine of fraudulent joinder represents an 

exception to the requirement that removal be predicated solely 

upon complete diversity.” In re Briscoe, 448 F.3d 201, 215–

16 (3d Cir. 2006). It permits district courts to assume 

jurisdiction over cases containing nondiverse defendants 

where it can be shown that they were joined “solely to defeat 

diversity jurisdiction.” Id. at 216. The district court may then 

dismiss the nondiverse parties. Id. (citing Mayes, 198 F.3d at

461). But this doctrine has a very high bar for showing ‘fraud’:
15

Joinder is fraudulent where there is no 

reasonable basis in fact or colorable ground 

supporting the claim against the joined 

defendant, or no real intention in good faith to 

prosecute the action against the defendants or 

seek a joint judgment. But, if there is even a 

possibility that a state court would find that the 

complaint states a cause of action against any one 

of the resident defendants, the federal court must 

find that joinder was proper and remand the case 

to state court.

Batoff v. State Farm Ins. Co., 977 F.2d 848, 851–52 (3d Cir. 

1992) (punctuation and citations omitted). Avenatti argues that 

the record does not support such a finding, and thus application 

of the fraudulent joinder test permits him to join Hunt, forcing 

remand.

We disagree. Fraudulent joinder doctrine does not 

apply to party additions that occur after a valid removal, as the 

District Court correctly found. See, e.g., Steel Valley, 809 F.2d 

at 1010 (fraudulent joinder analysis is “focus[ed] on the 

plaintiff’s complaint at the time the petition for removal was 

filed”); id. at 1012 n.6 (“Fraudulent joinder analysis . . . is only 

appropriate in determining the propriety of removal.”); Mayes, 

198 F.3d at 461 (“Since the fraudulent joinder doctrine justifies 

a federal court’s initial assumption of diversity jurisdiction, it 

has no effect once the district court actually possesses 

jurisdiction—including after the case has been removed.”).

The doctrine thus has no direct application where the 

nondiverse party was added after the case had already arrived 

in federal court.
16

Nor do we think that district courts should look to the 

fraudulent joinder doctrine as the exclusive means to guide 

their Rule 21 discretion. To be sure, consideration of 

fraudulent joinder principles might help inform the court’s

remand decision. See Mayes, 198 F.3d at 463 (“[I]f the 

defendants can carry the heavy burden of proving fraudulent 

joinder, that fact should be a factor—and perhaps the 

dispositive factor—that the court considers in deciding 

whether a plaintiff may join a nondiverse defendant.”). After 

all, it is difficult to imagine why a jurisdiction-defeating

defendant should be retained if there is not even a colorable

claim against him. Yet we think the fraudulent joinder doctrine 

is too rigid to serve as the sole lens for analysis—it imposes 

too high a bar for the district court to meet before it may defend 

its vested jurisdiction. This is a substantial concern because 

we must be on guard against forum manipulation in removal 

cases. See, e.g., Rockwell Int’l Corp. v. United States, 549 U.S. 

457, 474 n.6 (2007) (removal cases raise unique “forummanipulation concerns”; in such cases “an amendment 

eliminating the original basis for federal jurisdiction generally 

does not defeat jurisdiction”); Steel Valley Auth., 809 F.2d at

1012 n.6; In Touch Concepts, Inc. v. Cellco P’ship, 788 F.3d 

98, 101 (2d Cir. 2015) (“[F]or the purpose of analyzing 

statutory subject-matter jurisdiction, the Supreme Court has 

treated amended complaints in removal cases with flexibility,” 

to ensure federal jurisdiction can be maintained.). District 

courts should have pragmatic, flexible tools to face down these 

problems; the Hensgens factors fit that need far better than 

fraudulent joinder does. It would make little sense to grant 

district courts discretion under Rule 21, only to channel that 

discretion into a rigid formula.
17

Accordingly, we reject Avenatti’s contention that the 

District Court erred by not conducting a fraudulent joinder 

analysis.

Next, Avenatti urges that the District Court should not 

have used Rule 21 to drop Hunt because the Rule permits party 

severance only late in the litigation—whereas here the case had 

barely begun—and its use is implicitly constrained by Rule 82.

See Fed. R. Civ. P. 82 (“These rules do not extend or limit the 

jurisdiction of the district courts[.]”). These contentions are 

without merit. There is no time limitation on the use of Rule 

21. Fed. R. Civ. P. 21 (“On motion or on its own, the court 

may at any time, on just terms, add or drop a party.” (emphasis 

added)); Newman-Green, Inc., 490 U.S. at 832 (“[I]t is well 

settled that Rule 21 invests district courts with authority to 

allow a dispensable nondiverse party to be dropped at any time, 

even after judgment has been rendered.”). Nor does Rule 82 

militate against using Rule 21 to preserve complete diversity

where jurisdiction has already vested; the Newman-Green, Inc.

Court held that Rule 21 could be so used. Here, the District 

Court used Rule 21 to protect vested jurisdiction, not to expand 

it.

Finally, Avenatti contends that a plaintiff is the 

proverbial ‘master’ of his complaint, his choice of forum ought 

to be respected, and the ‘spirit’ of Rule 15 recognizes this 

special deference. He insists that district court discretion to 

reject joinder as of right and retain jurisdiction is inconsistent 

with these venerable principles. But Avenatti’s generalities 

run up against an insurmountable wall of caselaw already 

discussed. See, e.g., Newman-Green, Inc., 490 U.S. at 832; see 

also Horn v. Lockhart, 84 U.S. 570, 579 (1873) (recognizing 

judicial authority to dismiss nondiverse parties and retain 
18

jurisdiction). Far from granting plaintiffs unlimited rights, the 

Federal Rules of Civil Procedure and the removal statutes 

recognize the interests of defendants too.

In sum, we hold that district courts are empowered to 

police the joinder of parties whose presence would defeat 

subject matter jurisdiction. In removal actions predicated on 

complete diversity, plaintiffs cannot nullify a court’s 

gatekeeping function by adding jurisdictional spoilers as of 

right under Rule 15(a). Although § 1447(e) may not directly 

empower district courts to reject those amendments, Rule 21 

gives courts discretion, save what is noted below, to drop 

parties at any time, including when facing a motion to remand. 

A court’s Rule 21 discretion is bounded by: (1) Rule 19, such 

that indispensable parties may not be dropped; and (2) Rule 

21’s own requirement that no party be prejudiced. If these 

prerequisites are satisfied, then district courts may guide their 

“on just terms” discretion by looking to the factors delineated 

in Hensgens, just as they would in cases where § 1447(e) 

applied on its face.

C. The District Court did not abuse its discretion

Avenatti contends that the District Court misapplied the 

Hensgens factors and had no factual basis to support its 

conclusions. Reviewing the Court’s findings for abuse of 

discretion, DirecTV, Inc., 467 F.3d at 844 n.1, we discern no 

error.

The District Court began by examining Avenatti’s 

intent in joining Hunt, finding that “Avenatti’s evident purpose 

was to destroy diversity jurisdiction.” Avenatti, 2021 WL 

2143037, at *3. This conclusion was amply supported by the 

record. Avenatti amended to add Hunt a mere three days after 
19

removal—seven days after initial filing and before any 

discovery had taken place—and he moved to remand just five 

days later. He sought consensual remand before the motion 

was even filed. It was reasonable for the District Court to 

suspect an illicit motive based on this sequence of events. See

Mayes, 198 F.3d at 463 (“Especially where, as here, a plaintiff 

seeks to add a nondiverse defendant immediately after removal 

but before any additional discovery has taken place, district 

courts should be wary that the amendment sought is for the 

specific purpose of avoiding federal jurisdiction.”). The minor 

substantive differences between the two complaints could only 

have bolstered this suspicion: beyond labeling Hunt as a 

defendant, the amended complaint added just one allegation,

that Hunt and Fox News had published an article containing 

defamatory statements. Avenatti, 2021 WL 2143037, at *3. 

But Avenatti had already accused Fox News and its other hosts 

of repeating substantively identical statements elsewhere. Id. 

Finally, the fact that Avenatti discussed Hunt in the initial 

complaint without naming him as a defendant also supported a 

finding of improper purpose.3

The District Court thus had good reason to conclude that 

Hunt was added to force remand, a fact the Court rightly 

weighed in favor of dropping him. It did not abuse its 

discretion by disbelieving Avenatti’s claim that Hunt was 

added because counsel just happened to discover the relevant 

article immediately following removal.

3 At Oral Argument, Avenatti’s counsel was unable to 

adequately explain why Hunt was not named before the case 

was removed.
20

Next, the District Court considered whether dropping 

Hunt would prejudice Avenatti. It found no prejudice would 

flow because Hunt was a dispensable party. Again, this 

conclusion was reasonable. Hunt was charged with making

just two defamatory statements, which the amended complaint 

attributed equally to his employer, Fox News. Because Fox 

News was already in the case and could provide complete 

recovery under joint-and-several liability, there was no need to 

retain Hunt. See Appellant’s Br. 33 (asserting joint-andseveral liability will apply); Newman-Green, 490 U.S. at 838 

(holding that, where multiple defendants “are jointly and 

severally liable, it cannot be argued that [one is] 

indispensable”); Bailey, 563 F.3d at 309. Moreover, nothing 

was alleged about Hunt’s role or relationship to Fox News that 

would make recovery against him alone plausible.

As the District Court observed, its findings here ensured

that dropping Hunt would not run afoul of Rule 19. Although 

Rule 21 severance must avoid prejudicing parties beyond the 

plaintiff, there has been no claim here that anyone besides 

Avenatti was prejudiced by Hunt’s removal. Nor does such a 

person appear to us. Accordingly, the District Court did not 

err by restricting its focus to potential prejudice to Avenatti, 

although clarity would have been better served by conducting 

the Rule 19 analysis before moving on to the Hensgens factors.

Lastly, the District Court found the absence of delay in 

amending weighed in favor of retaining Hunt, but that this fact 

did not overcome the “conclusion that [Avenatti] added Hunt 

to defeat diversity jurisdiction and will not suffer” should he 

be dropped. Avenatti, 2021 WL 2143037, at *3. The Court 

accordingly proceeded to dismiss Hunt under Rule 21 and, 
21

with complete diversity restored, deny Avenatti’s motion to 

remand.4

Far from an abuse of discretion, the District Court’s 

Hensgens analysis was persuasive and well-supported. The 

Court had solid grounds to thwart the transparent threat to its 

jurisdiction that Hunt’s addition represented.

* * * * *

In sum, the District Court did not abuse its discretion in 

its jurisdictional analysis. As Avenatti raised no challenge to 

the Court’s disposition apart from the jurisdictional objection, 

this conclusion resolves the case. Thus, we will affirm the 

District Court’s orders.

4 Although the District Court did not identify any “other factors 

bearing on the equities,” Hensgens, 833 F.2d at 1182, the 

Court’s analysis was nonetheless sound. Avenatti argues that 

the “equities weigh decidedly against the Defendants,” because 

removal here represented “blatant forum shopping . . . based 

on a technicality,” while hisinitial choice of forum should have

received more respect. Appellant’s Br. at 42–43. Coming 

from Avenatti, the accusation of exploiting technicalities to 

obtain one’s preferred forum rings hollow. In any event, there 

is nothing inequitable about asserting one’s legal rights, see, 

e.g., Louis Vuitton S.A. v. Lee, 875 F.2d 584, 589 (7th Cir. 

1989) (Posner, J.), as Fox News did, and Defendants’ interest 

in maintaining the federal forum was no less significant than 

Avenatti’s desire to depart, see, e.g., Hensgens, 833 F.2d at 

1182. Accordingly, the District Court did not abuse its 

discretion by omitting these considerations.