IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31169

KALE FLAGG, 

Plaintiff - Appellant

v.

STRYKER CORPORATION; MEMOMETAL INCORPORATED, USA, 

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

Before DAVIS, ELROD, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

In this case, which was removed from state court, Kale Flagg (“Flagg”) 

appeals the dismissal of his complaint against Stryker Corporation (“Stryker”) 

and Memometal Incorporated (“Memometal”) (collectively, the “Manufacturing 

Defendants”), and five fictitious insurance companies.1 We conclude that the 

 

1 Although the fictitious insurance companies remain parties in this case, there is no 

indication they were ever served or that they have appeared in any way. A judgment of 

dismissal is final and appealable under 28 U.S.C. § 1291 even if it does not dispose of claims 

made against a party that has neither been served nor appeared before the court. See Nagle 

v. Lee, 807 F.2d 435, 437–38 (5th Cir. 1987) (finding a judgment dismissing a case against 

only some of the defendants was final despite the fact that claims against “ABC Insurance 

Company” had never been addressed); see also Landor v. Soc’y of The Roman Catholic Church 

of The Diocese of Lafayette, No. 14-31097, 2015 WL 4114299, at *1 n.1 (5th Cir. July 9, 2015) 

(unpublished) (finding the district court’s failure to mention fictitious insurance companies 

United States Court of Appeals

Fifth Circuit

FILED

September 4, 2015

Lyle W. Cayce

Clerk

 Case: 14-31169 Document: 00513182104 Page: 1 Date Filed: 09/04/2015
No. 14-31169

2

district court lacked jurisdiction to decide this case and, therefore, without 

regard to its merits, we VACATE the district court’s judgment and REMAND

this case to the district court to remand to state court.

I.

Although we do not review the merits of the decision below, some

background facts are helpful for understanding the jurisdictional 

determination. Flagg had surgery on his foot, utilizing the services of Dr. 

Denise Elliot, West Jefferson Medical Center, and the Foot and Ankle Center 

(collectively, “Medical Defendants”) to implant a device manufactured by the 

Manufacturing Defendants.2 He contends that the actions of both sets of 

defendants combined to cause him pain and necessitated further surgeries to 

correct problems caused by the Medical Defendants’ alleged negligence and the 

Manufacturing Defendants’ allegedly faulty device. Consistent with LA. REV.

STAT. ANN. § 40.1299.47(B)(1)(a)(i), Flagg filed a medical malpractice 

complaint before a medical review panel. Despite the provisions in that statute 

requiring review as a prerequisite to suit, one week later, Flagg sued the 

Medical Defendants and the Manufacturing Defendants in Louisiana state 

court. 

Although all of the Medical Defendants and Flagg as plaintiff were 

citizens of Louisiana, the Manufacturing Defendants removed the case on the 

basis of diversity jurisdiction. The Manufacturing Defendants alleged that 

they were citizens of other states and that the Medical Defendants were 

 

in its judgment did not prevent that judgment from being final and appealable); Fed. Sav. & 

Loan Ins. Corp. v. Tullos-Pierremont, 894 F.2d 1469, 1471–74 (5th Cir. 1990) (following Nagle

and collecting cases following this principle). We therefore do not mention these defendants 

again.

2 There is some lack of clarity as to whether Stryker or Memometal or both 

manufactured the device in question. As it does not affect the outcome here, we will treat 

them both as the manufacturers for the sake of simplicity.

 Case: 14-31169 Document: 00513182104 Page: 2 Date Filed: 09/04/2015
No. 14-31169

3

improperly joined such that their non-diverse citizenship could be discounted.3 

The district court implicitly agreed when it assumed jurisdiction over the case. 

It dismissed the Medical Defendants due to prematurity of the case against 

them and as improperly joined due to that prematurity. It ultimately resolved 

the case against Flagg on the merits, granting the defendants’ motion to 

dismiss under Federal Rule of Civil Procedure 12(b)(6). 

Flagg appealed, but failed to challenge the district court’s jurisdiction. 

Nonetheless, subject-matter jurisdiction cannot be waived, so we requested 

supplemental briefing on this issue. We now conclude that the district court 

should not have discounted the citizenship of the Medical Defendants and that 

the court lacked diversity jurisdiction.

II.

Under the improper-joinder doctrine, a court should disregard the 

citizenship of non-diverse defendants where “there is no reasonable basis for 

predicting that the plaintiff might establish liability . . . against the in-state 

defendant[s].” Badon v. R J R Nabisco Inc., 224 F.3d 382, 390 (5th Cir. 2000).

The Manufacturing Defendants argue that the case against the Medical 

Defendants is premature in light of the still-pending medical review panel 

proceeding and, therefore, there is “no reasonable basis” to predict liability 

against the Medical Defendants. Flagg argues unconvincingly that his case 

against the Medical Defendants is not a medical malpractice case at all. In the 

district court, he argued that the case should be stayed until the medical 

review panel is concluded, at which time it should be remanded.

We begin with an examination of the Louisiana Medical Malpractice Act

(“LMMA”). The LMMA governs claims for “any unintentional tort or breach of 

contract” brought against a qualified “health care provider.” LA. REV. STAT.

 

3 That the requisite amount in controversy is met is not contested here.

 Case: 14-31169 Document: 00513182104 Page: 3 Date Filed: 09/04/2015
No. 14-31169

4

ANN. §§ 40.1299.41, 40.1299.47. The Act requires a plaintiff to submit a claim 

to a medical review panel before bringing suit. Id. § 40.1299.47(B)(1)(a)(i) (“No 

action against a health care provider covered by this Part . . . may be 

commenced in any court before the claimant’s proposed complaint has been 

presented to a medical review panel established pursuant to this Section.”). 

The Supreme Court of Louisiana has interpreted this provision to mean that a 

malpractice complaint against a covered health care provider should be 

dismissed without prejudice if it is filed “prior to submission of the complaint 

to a medical review panel and [before] the panel has rendered its expert opinion 

on the merits of the complaint, unless this requirement is waived by the 

parties’ agreement.” Delcambre v. Blood Sys., Inc., 893 So. 2d 23, 27 (La. 2005); 

see also Gele v. Binder, 904 So. 2d 836, 838 (La. Ct. App. 2005); Brister v. Sw. 

La. Hosp. Ass’n, 624 So. 2d 970, 971–72 (La. Ct. App. 1993). 

Medical review panels “consist of three health care providers who hold 

unlimited licenses to practice their profession in Louisiana and one attorney.” 

LA. REV. STAT. ANN. § 40.1299.47(C). The attorney serves as an advisory 

chairperson of the panel and has no voting power. Id. § 40:1299.47(C)(1)(b)(2). 

The parties submit written evidence to the panel and, with the consent of two 

members of the panel, may subpoena documentary evidence or deposition 

testimony for submission. Id. § 40:1299.47(D). The panel may solicit its own 

evidence, and the parties have the right to convene the panel for questioning 

at an informal meeting before any report is issued. Id. § 40:1299.47(E)–(F). 

The panel’s “sole duty” is “to express its expert opinion as to whether or not the 

evidence supports the conclusion that the defendant or defendants acted or 

failed to act within the appropriate standards of care,” by rendering one of 

three “expert opinions”:

 Case: 14-31169 Document: 00513182104 Page: 4 Date Filed: 09/04/2015
No. 14-31169

5

(1) The evidence supports the conclusion that the defendant or 

defendants failed to comply with the appropriate standard of care 

as charged in the complaint.

(2) The evidence does not support the conclusion that the 

defendant or defendants failed to meet the applicable standard of 

care as charged in the complaint.

(3) That there is a material issue of fact, not requiring expert 

opinion, bearing on liability for consideration by the court.

Id. § 40:1299.47(G). 

The LMMA also contains some provisions meant to regulate the 

timeliness of the process. First, an attorney chairman for the medical review 

panel is supposed to be appointed within one year from the date on which a 

request for review is filed. Id. § 40:1299.47(A)(2)(c). If this does not happen 

within nine months of the initial filing, the board charged with overseeing this 

process is supposed to “send notice to the parties by certified or registered mail 

that the claim will be dismissed in ninety days unless an attorney chairman is 

appointed within one year from the date the request for review of the claim 

was filed.” Id. Following that notice, if an attorney chairperson is not 

appointed and noticed within that first year, the claim is dismissed and the 

parties are deemed to have waived the use of the medical review panel. 

Id. After an attorney chairman is selected, an opinion should be rendered 

within one year, or else “suit may be instituted”; “[h]owever, either party may 

petition a court of competent jurisdiction for an order extending the twelve 

month period . . . for good cause shown.” Id. § 40:1299.47(B)(1)(b). If the 

parties obtain an extension and no opinion is rendered within that time, “the 

medical review panel established to review the claimant’s complaint shall be 

dissolved.” Id. Finally, “[t]he filing of a request for a medical review panel 

shall suspend the time within which suit must be filed until ninety days after 

the claim has been dismissed” or the panel has been dissolved. Id.

§ § 40:1299.47(A)(2)(c), (B)(3).

 Case: 14-31169 Document: 00513182104 Page: 5 Date Filed: 09/04/2015
No. 14-31169

6

We have not previously addressed the interaction of the LMMA with 

diversity jurisdiction. In the past, district courts have diverged in their views.

Some of those courts have found that the LMMA requires the presentation or 

exhaustion of administrative remedies before an LMMA claim is ripe to be 

heard in federal court. These cases dismiss non-diverse defendants as 

improperly joined and allow plaintiffs’ claims against diverse defendants to 

proceed in federal court. See, e.g., Silvestrini v. Intuitive Surgical, Inc., No. 11-

2704, 2012 WL 380283, at *5 (E.D. La. Feb. 6, 2012) (collecting cases for the 

proposition that federal courts “have denied remand when a plaintiff has failed 

to present malpractice claims against a non-diverse defendant to a medical 

review panel because the courts have found that such non-diverse defendants 

were improperly joined”).4

Not all federal district courts have followed this logic. Some courts have 

reasoned that just because a claim is procedurally premature under Louisiana 

law does not mean “there is no reasonable basis for predicting that plaintiffs 

might establish liability . . . against the in-state defendants.” Badon, 224 F.3d 

at 393 (emphasis added) (stating the standard for improper joinder); Erdey v. 

Am. Honda Co., 96 F.R.D. 593, 596–97 (M.D. La. 1983) (“The court therefore 

concludes that the original petition, although premature, nevertheless stated 

a cause of action against the medical defendants. Thus they were not 

fraudulently joined . . . .”). On this side of the issue, many courts found no 

improper joinder of non-diverse defendants when a plaintiff’s claims were 

 

4 See also Jones v. Centocor, Inc., No. 07-5681, 2007 WL 4119054, at *1 (E.D. La. Nov. 

15, 2007) (concluding that the defendant doctor was improperly joined because the plaintiff 

did not file a complaint under the LMMA before filing suit, because since “the exhaustion of 

these administrative procedures is a prerequisite to maintaining suit . . . there is currently 

no reasonable basis to predict whether or not [the plaintiff] has a viable action against [the 

doctor]”); Richardson v. Advanced Cardiovascular Sys., Inc., 865 F. Supp. 1210, 1217–19 

(E.D. La. 1994) (finding plaintiff’s malpractice complaint was premature under the LMMA 

until her claim had been exhausted before the medical review panel).

 Case: 14-31169 Document: 00513182104 Page: 6 Date Filed: 09/04/2015
No. 14-31169

7

premature under LA. REV. STAT. ANN. § 40.1299.47. See, e.g., Erdey, 96 F.R.D. 

at 596–97;5 see also Doe v. Cutter Biological, 774 F. Supp. 1001, 1004–05 (E.D. 

La. 1991) (reasoning that “[t]he key inquiry to a claim of fraudulent joinder is 

whether the plaintiff made the nondiverse party a defendant under a claim 

theory that has substantive merit,” and holding the medical defendants

“mist[ook] procedure for substance” in arguing that medical defendants were 

improperly joined because Louisiana law barred a state suit against them).

After our decisions in Melder v. Allstate Corp., 404 F.3d 328, 331–32 (5th 

Cir. 2005) and Holder v. Abbott Laboratories, Co., 444 F.3d 383, 387–89 (5th 

Cir. 2006), district courts began to conclude that LMMA defendants should be 

treated as improperly joined when the review board has not yet issued its 

opinion. See, e.g., Fontenot v. Johnson & Johnson, No. 10-162, 2010 WL 

2541187, at *6–10 (W.D. La. Apr. 30, 2010), report and recommendation 

adopted, No. 10-162, 2010 WL 2541178 (W.D. La. June 17, 2010). We conclude, 

however, that these cases do not reach as broadly as the Manufacturing 

Defendants contend. 

In Melder v. Allstate Corp., we found plaintiffs bringing claims related 

to insurance rate-making could not “seek judicial relief until after they ha[d] 

exhausted their administrative remedies” with the Louisiana Insurance Rate 

Commission (“LIRC”). 404 F.3d at 332. The plaintiffs sued LIRC, a nondiverse defendant, but this court affirmed the district court’s dismissal of LIRC 

as improperly joined. Id. at 330, 332. Since plaintiffs had comprehensive 

administrative remedies to challenge rates before LIRC and LIRC closely 

controlled and approved all insurance rates, this court enforced Louisiana’s 

 

5 The Erdey court also noted that “[u]nder Louisiana procedure, where a dilatory 

exception pleading prematurity is sustained, the suit is to be dismissed . . . and it is improper 

to sustain such an exception in a malpractice case and order the proceedings stayed pending 

presentation to a medical review panel.” 96 F.R.D. at 596.

 Case: 14-31169 Document: 00513182104 Page: 7 Date Filed: 09/04/2015
No. 14-31169

8

requirement that plaintiffs exhaust administrative remedies before bringing 

suit.6 Id. at 330–32. We repeatedly emphasized the comprehensiveness of the 

administrative scheme that, in that case, would actually result in an 

adjudication of the plaintiffs’ claim.7 In Holder v. Abbott Laboratories, Inc., we 

found that a non-diverse defendant physician was properly dismissed as 

improperly joined because the plaintiffs had not exhausted remedies under the 

National Childhood Vaccine Injury Act. 444 F.3d at 387–89 (quoting 42 U.S.C. 

§§ 300aa–33(5) & –33(11)(a)(1)). The plaintiffs conceded that they had not filed 

a petition with the United States Court of Federal Claims, as the statute 

explicitly required, before bringing suit in state or federal court. Id. at 388. 

Again, that case involved a comprehensive (federal) statute that provided for 

adjudication of the plaintiffs’ claim.

By contrast, the LMMA is not a comprehensive administrative scheme 

designed to adjudicate a plaintiff’s malpractice claims. The net result of the 

process is an expert opinion admissible in a subsequent lawsuit, but not a 

 

6 Additionally, the record did not show that plaintiffs in Melder filed for administrative 

remedies with LIRC at all, and the plaintiffs did not respond to the exhaustion issue in their 

briefing, except to claim this court could not decide it. Id. at 332. 

7 The dissenting opinion asserts that our finding of improper joinder in Melder should 

dictate a finding of improper joinder in this case, which also involves a state administrative 

scheme. The analogy ends there. Melder is inapposite because it involved “an adequate 

administrative remedy for addressing [the plaintiffs’] grievances.” Melder, 404 F.3d at 332. 

The overwhelming focus of our opinion in Melder was on the comprehensiveness of the 

administrative scheme at issue in that case. See 404 F.3d at 331–32. We closely analyzed 

and relied on the “detailed procedure for petitioning” the regulatory authority regarding 

alleged violations, the fact that the regulatory authority was empowered to issue a final 

decision appealable to the state courts, and the fact that the regulatory authority was 

“charged with responsibility for preventing, and [was] uniquely qualified to regulate [the 

subject matter of the plaintiffs’ claims].” Id. This stands in stark contrast to the LMMA, 

which involves a non-comprehensive medical review process that does not result in a binding 

final decision. See LA. REV. STAT. ANN. § 40.1299.47(G), (H). The dissenting opinion’s concern 

that this distinction will lead to confusion is unfounded. We decide here only that the Melder

holding should not be extended to apply to a situation where the state scheme involves no 

adjudicative function.

 Case: 14-31169 Document: 00513182104 Page: 8 Date Filed: 09/04/2015
No. 14-31169

9

decision in and of itself. See LA. REV. STAT. ANN. § 40.1299.47(G), (H) (noting 

the “report of the expert opinion reached by the medical review panel shall be 

admissible as evidence” in any subsequent lawsuit, but “shall not be 

conclusive,” and that the panel has the “sole duty to express its expert opinion” 

as to whether the applicable standards of care were met). Thus, a plaintiff who 

obtains a positive opinion from the medical review board must still file suit and 

have the claim adjudicated; it is the same for the defendants who have not 

received anything akin to a final administrative decision and therefore are not

“finished,” subject only to appeal, once the review is complete.8 In other words, 

the medical review panel will not adjudicate Flagg’s claim at all; it will simply 

provide evidentiary support for one side or the other. See LA. REV. STAT. ANN.

§ 40:1299.47(H).

Further, the completion of the process is not always a prerequisite to 

filing suit. The parties can waive the medical review process in several ways. 

Most simply, “[b]y agreement of all parties, the use of the medical review panel 

may be waived.” Id. § 40.1299.47(B)(1)(c); see also Delcambre, 893 So. 2d at 27. 

Parties may also bypass the panel review process if they have “validly agreed” 

to submit the claims “to a lawfully binding arbitration procedure.” Id.

§ 40.1299.47(A)(1)(a). If the parties or the medical review panel fail to appoint 

an attorney chairperson and notify the medical review board within one year 

 

8 Rather than constituting a final but appealable administrative decision, the LMMA 

apparently seeks to incentivize respect for the expert opinion rendered by the panel by 

imposing costs on a party that receives a unanimous, unfavorable expert opinion and does 

not subsequently win in court. If a claimant receives a unanimous expert opinion against 

the malpractice claim and thereafter files suit, the claimant must post a cash or surety bond 

for the costs of the medical review process, which the defendant health care provider receives 

only if a subsequent suit concludes without finding the defendant liable. See LA. REV. STAT.

ANN. § 40.1299.47(I)(2)(c). If a defendant health care provider receives a unanimous decision 

against it and does not otherwise pay the costs of the medical review process or settle with 

the claimant before a malpractice suit is filed, the defendant has to post the same cash or 

surety bond and pay a plaintiff the costs of the medical review process, unless the lawsuit 

finds the defendant is not liable. Id. § 40.1299.47(I)(2)(d).

 Case: 14-31169 Document: 00513182104 Page: 9 Date Filed: 09/04/2015
No. 14-31169

10

from when the claim was filed, they have waived the use of the panel. Id.

§ 40:1299.47(A)(2)(c). As we have noted, a lawsuit may proceed despite any 

claim before a medical review panel if the panel fails to render a decision within 

one year of the selection of the attorney chairperson, unless the parties receive 

a court-ordered extension for good cause. Id. § 40:1299.47(B)(1)(b). 

Additionally, a health care provider can circumvent the medical review process 

by filing a lawsuit and challenging the claimant’s malpractice claim as 

prescribed or for failure to state a claim under Louisiana law. 

Id. § 40.1299.47(B)(2)(a)–(b) (noting defendants may claim “no right of action” 

under Louisiana’s Code of Civil Procedure, Article 927(6), or as prescribed by 

the statute of limitations for medical malpractice in LA. REV. STAT. ANN.

§ 9:5628). Thus, this procedure is quite different from the comprehensive 

administrative adjudicatory schemes examined in our prior cases.

Far from demonstrating that there is “no reasonable basis” on which the 

Medical Defendants could be held liable ultimately in this case, the 

Manufacturing Defendants indirectly pointed the finger at the Medical 

Defendants in their arguments about res ipsa loquitur. Indeed, based on the 

Manufacturing Defendants’ arguments, the district court rejected Flagg’s 

attempt to invoke “res ipsa loquitur,” observing that the doctrine is not 

applicable “[w]hen reasonable hypotheses as to other causes of the plaintiff’s 

injuries remain.” Flagg v. Elliot, No. 2:14-CV-852, 2014 WL 3715127, at *6 

(E.D. La. June 16, 2014) (citation omitted).

This situation highlights another problem with concluding the Medical 

Defendants are improperly joined in this case: it could lead to piecemeal 

litigation and potentially inconsistent results. The Medical Defendants and 

the Manufacturing Defendants are clearly properly joined parties in this case 

under Federal Rule of Civil Procedure 20. All of these defendants are alleged 

to have combined to cause a single harm to Flagg—pain and further surgeries. 

 Case: 14-31169 Document: 00513182104 Page: 10 Date Filed: 09/04/2015
No. 14-31169

11

The two groups are thus properly tried in the same lawsuit, as Flagg sought to 

do.

III.

The LMMA scheme is not the kind of comprehensive administrative 

scheme we have cited in allowing a district court to discount the citizenship of 

non-diverse parties. We conclude that the fact that the medical review panel 

apparently still has yet to issue its opinion9 does not negate any “reasonable 

basis for predicting that plaintiffs might establish liability . . . against the instate defendants.” Badon, 224 F.3d at 393. Thus, while the case against the 

Medical Defendants may be premature, they are not “improperly joined” within 

the meaning of the case law.10 Accordingly, we VACATE the judgment of the 

district court and REMAND the case to the federal district court to remand the

case to state court. 

 

9 We note that the outside time deadlines set forth in the LMMA are approaching. 

It has been twenty months since Flagg filed his complaint before the medical review panel, 

meaning that the “prematurity” of his malpractice claims may soon disappear. The parties 

have not provided any indication that an expert opinion has issued.

10 The dissenting opinion disagrees with this conclusion and would instead institute 

the “bright line rule” that “if the claim is not exhausted, that action is improperly joined.” 

That rule, while bright line, is overbroad and unnecessarily conflates the requirement of 

exhaustion with the rules for ascertaining improper joinder. We are not suggesting here that 

parties may avoid exhausting their claims before filing them in federal court, as in the Title 

VII context the dissenting opinion discusses. The question here is not whether parties must 

exhaust claims under state law before filing them in federal court. Rather, we are tasked 

with determining whether improper joinder arises with the presence of any party who 

arguably must complete further procedures in a non-comprehensive, administrative statelaw scheme. The improper joinder analysis turns on whether there is a “reasonable basis for 

predicting that plaintiffs might establish liability . . . against the in-state defendants.” Badon, 

224 F.3d at 393. Nothing about the LMMA or the non-comprehensive, waivable medical 

review process suggests that Flagg has “no possibility of recovery” against the Medical 

Defendants.

 Case: 14-31169 Document: 00513182104 Page: 11 Date Filed: 09/04/2015
No. 14-31169

12

W. EUGENE DAVIS, Circuit Judge, dissenting:

The majority holds that this case should be remanded to state court even 

though the non-diverse party cannot be sued under the state statute creating 

the cause of action. I disagree and dissent. 

As the majority opinion reflects, Mr. Flagg brought suit in state court 

against both the manufacturer of a toe implant and the medical providers who 

performed the implant. The manufacturing defendants were diverse, while the 

medical provider defendants were not diverse. Flagg sued the manufacturers 

for products liability and the medical provider defendants for malpractice.

Under Louisiana Revised Statute § 40:1299.47 (LMMA), which provides 

a cause of action against health care providers for malpractice, a patient cannot 

sue that provider until his case is presented to an administrative panel.1

Louisiana courts consistently support the plain language of the LMMA and 

hold no suit is available on plaintiff’s claim until it is exhausted by the medical 

review panel.2

The primary question here is whether a plaintiff’s unexhausted claim 

against a non-diverse defendant should be disregarded as improperly joined 

for purposes of determining diversity jurisdiction. The majority refused to 

dismiss this suit against the medical providers and retain the action against 

the manufacturing defendants.

Smallwood v. Illinois Central Railroad Co. formulated the standard for 

improper joinder. Improper joinder applies when a plaintiff is unable to 

maintain a cause of action against the non-diverse party.3 If there is no 

 

1 The Louisiana Medical Malpractice Act states that a medical review panel must 

review malpractice claims otherwise “no action” is available in “any court.” La. Rev. Stat. §

40:1299.47 (2015). 

2 See, e.g., Spradlin v. Acadia-St. Landry Med. Found., 758 So. 2d 116, 119 (La. 2000) 

(noting requirement of pre-suit review panel). 

3 385 F.3d 568, 573 (5th Cir. 2004).

 Case: 14-31169 Document: 00513182104 Page: 12 Date Filed: 09/04/2015
No. 14-31169

13

possibility of recovery against the non-diverse party, the plaintiff cannot 

maintain an action against it.4

In Melder v. Allstate, 404 F.3d 328 (5th Cir. 2005), and Holder v. Abbott

Labs, 444 F.3d 383 (5th Cir. 2006), we held that plaintiffs’ unexhausted claims

under statutes other than the LMMA had no possibility of recovery, and 

therefore, they were improperly joined. Furthermore we dismissed the suits 

against defendants who were the subject of unexhausted claims.5 Melder and 

Holder also demonstrate that determination of whether a cause of action exists 

is made at the time of removal.6 Following our decisions in Melder and Holder, 

all of the federal district courts in Louisiana presented with the question 

applied a bright line rule to medical malpractice suits: if the claim is not 

exhausted, that action is improperly joined and the medical provider is 

dismissed and disregarded for purposes of diversity jurisdiction.7

The majority takes the position that these cases are distinguishable 

because the administrative bodies in Melder and Holder were authorized to 

resolve the disputes presented by litigants, whereas the LMMA panel hears 

evidence and arguments and then issues an opinion on whether malpractice 

occurred. The LMMA opinion, while not binding, is admissible at a later trial 

as highly probative evidence.8

The majority does not explain why this distinction is significant for 

determining whether a plaintiff can bring suit under the LMMA. We did not 

 

4 Id.

5 Melder, 404 F.3d at 331-32; Holder, 444 F.3d at 388-89.

6 See Melder, 404 F.3d at 331-32; Holder, 444 F.3d at 388-89; accord Grupo Dataflux 

v. Atlas Global Grp., 541 U.S. 567, 570 (2004).

7 See, e.g., Pardo v. Medtronic, Inc., 2010 WL 4340821 (E.D. La. Oct. 26, 2010); 

Fontenot v. Johnson & Johnson, 2010 WL 2541187 (W.D. La. Apr. 30, 2010); Ellis v. Ethicon, 

Inc., 2010 WL 1251640 (M.D. La. Feb. 19, 2010).

8 See McGlothlin v. Christus St. Patrick Hosp., 65 So. 3d 1218, 1226-27 (La. 2011).

 Case: 14-31169 Document: 00513182104 Page: 13 Date Filed: 09/04/2015
No. 14-31169

14

condition our holding in Melder and Holder on such a consideration; and, we 

have never considered such a distinction relevant under Title VII.9

Under Title VII, an employee asserting a claim of employment 

discrimination against an employer must file a charge with the EEOC.10 The 

EEOC then must be given an opportunity to investigate the charge and, if 

reasonable cause exists, mediate the dispute.11 Employees cannot sue until 

this process is exhausted and the EEOC issues a right-to-sue letter.12

The EEOC has no authority to resolve disputes by rendering a binding 

decision.13 Instead it can only determine whether reasonable cause exists and 

conciliate the dispute, issue a right to sue letter, or file suit itself.14 But even 

though the EEOC has no authority to resolve disputes, our courts require 

employees to exhaust their claim.15 Critically, a plaintiff suing without 

exhaustion of the claim with the EEOC suffers dismissal of his suit as required 

by Title VII.16

I cannot endorse a rule that enforces the requirement imposed by a 

federal statute requiring dismissal of an unexhausted claim, yet refuse to 

enforce the same requirement in a state statute. 

 

9 Under Title VII, the EEOC “exercises no adjudicatory authority.” Federal Judicial 

Center, Major Issues in the Federal Law of Employment Discrimination 89 (5th ed. 2012). 

10 42 U.S.C. § 2000e-5 (2015).

11 Id.

12 A civil action on a Title VII claim may brought only “after the giving of [right-tosue] notice.” Id.

13 See supra, note 9.

14 “The only powers of the EEOC are to investigate charges, determine whether there 

is reasonable cause to support them, [or] attempt to reach a settlement through conciliation.” 

Id.

15 “Title VII requires employees to exhaust their administrative remedies.” McClain 

v. Lufkin Indus., 519 F.3d 264, 273 (5th Cir. 2008). 

16 Courts consistently dismiss these unexhausted claims. See, e.g., Atkins v. 

Kempthorne, 353 Fed. App’x 934 (5th Cir. 2009); Richter v. Advance Auto Parts, 686 F.3d 847 

(8th Cir. 2012); Vasquez-Rivera v. Figueroa, 759 F.3d 44 (1st Cir. 2014); Hildebrand v. 

Allegheny Cty., 757 F.3d 99 (3d Cir. 2014). 

 Case: 14-31169 Document: 00513182104 Page: 14 Date Filed: 09/04/2015
No. 14-31169

15

The majority also distinguishes Melder and Holder arguing that those 

administrative bodies acted under a much more comprehensive scheme. In my 

view, this difference is insignificant for our purposes. The sole issue is whether 

a plaintiff can demonstrate that he has a viable action against a non-diverse 

defendant at the time the action is removed. We should have a bright line rule: 

when the statute creating a cause of action requires exhaustion with an 

administrative agency before suit can be filed, a plaintiff cannot maintain an 

action in court on the unexhausted claim. Such an action should be dismissed, 

and the defendants disregarded for diversity jurisdiction purposes.17

Under the majority’s rule, courts would be required to evaluate the 

comprehensiveness of the administrative scheme in each new statute along 

with the adjudicative authority of the administrative body. District courts 

would be required to determine on which side of the line the administrative 

scheme falls. This is not a sensible approach. To the contrary, we should 

respect the judgement of the state on how it chooses to structure its 

administrative scheme. So long as the state determines that no suit may be 

filed on a cause of action until exhaustion, we should follow that directive. 

Finally, the majority’s concern based on judicial efficiency considerations 

for splitting the products liability and medical malpractice cases is overblown. 

If the district court in this case dismisses the non-diverse medical provider 

parties as improperly joined, nothing prevents it from staying the products 

action pending the medical review panel’s opinion. Then, if the plaintiff decides 

to forgo his malpractice claim, the district court can resolve the products case. 

However, if the plaintiff joins the malpractice case with the pending products 

case, then the district court will remand the entire case for a single trial. 

 

17 See Melder, 404 F.3d at 331-32; Holder, 444 F.3d at 388-89; accord McClain, 519 

F.3d at 273. 

 Case: 14-31169 Document: 00513182104 Page: 15 Date Filed: 09/04/2015
No. 14-31169

16

For these reasons, I respectfully dissent. 

 Case: 14-31169 Document: 00513182104 Page: 16 Date Filed: 09/04/2015