* District Judge of the Western District of Texas, sitting by

designation.

1 

### REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________________

No. 95-30524

______________________________

MARY ANNA RIVET, MINNA

LEE WINER, EDMOND G.

MIRANNE, and EDMOND G.

MIRANNE, JR.,

Plaintiffs-Appellants,

versus

REGIONS BANK, WALTER L.

BROWN, PERRY S. BROWN,

and FOUNTAINBLEAU STORAGE

ASSOCIATES,

Defendants-Appellees.

____________________________________________

Appeal From the United States District Court

for the Eastern District of Louisiana

____________________________________________

March 13, 1997

Before JONES and WIENER, Circuit Judges, and FURGESON, * District

Judge.

WIENER, Circuit Judge:

Plaintiffs-Appellants Mary Anna Rivet, Mina Lee Winer, Edmond

G. Miranne, and Edmond G. Miranne, Jr. (collectively, the2 Edmond G. Miranne and Mary Anna Rivet are husband and wife,

and Edmond G. Miranne, Jr. and Minna Lee Winer are husband and

wife.

3 “Leasehold estate” is a term unknown to the Civil Law, which

does no t recognize estates in land. S ee A.N. Yiannopoulos,

2 Louisiana Civil Law Treatise § 226 at 422-23 (3d ed. 1991). In

Louisiana, a lease of immovable (real) property is a personal (in

per sonam) contract which does not create rights in rem; however,

under provisions of various statutes, both predial (r eal estate)

and mineral leases are afforded some of the attributes of rights in

rem

, notably the protect ion of the public records doctrine,

including the susceptibility of the rights of the lessee to

conventional (real estate) mortgages and the ranking of such

encumbrances among themselves based on time of recordation. S ee

id.

, at 4 24-25, a nd also La. Rev. Stat. Ann. §§ 2721 & 2754-56

(West 1991). Mirannes) 2 appeal the district court’s order refusing to remand

their case to the Louisiana state court from which it had been

removed by Defendants-Appel lees Regions Bank, Walter L. Brown,

Perry S. Brown, and Fountainbleau Storage Associates (FSA)

(collectively, the defendants). The Mirannes also appeal the

district court’s grant of the defendants’ motions for summary

judgment dismissing that action. Concluding that the district

court correctly denied remand under the “artful pleading” exception

to the well-pleaded compl aint doctrine, we affirm the refusal to

remand the Mirannes’ suit to stat e court; and, agreeing that

summary judgment of dismissal was providently granted on the basis

of claim preclusion, we affirm.

I.

FACTS AND PROCEEDINGS

This action concerns the viability of a $5,000,000 second

mortgage on the interest of the lessee (leasehold esta te) 3 in a

parcel of immovable property (leased premises) located at the

intersection of Tulane and Carrolton Avenues in New O rleans,4 Th e location of the leased premises is a legendary one to

many New Orleanians. For years the property was the site of

Pelican Stadium, the home field of the old New Orleans Pelicans

minor league baseball team.

5 See Max Nathan, Jr., The Collateral Mortgage, Logic and

Exper ience , 49 La. L. Rev. 39 (1988), for a discussion of the

collateral mortgage, that unique Louisiana “hybrid security device,

combining the elements of both pledge and mortgage.” Id. at 39-40.

6 One of the holders of the note, Edmond G. Miranne, Jr., also

appears to have been a partner of THILP.

3 Louisiana. 4 In 1957, Lois Stern as lessor granted a ground lease

of the leased premises to Pelican State Hotel Corporation as

lessee. As a result of several subsequent assignments, the

leasehold estate was eventually acquired by Tulane Hotel Investors

Limited Partnership (THILP) on September 15, 1983. On the same

date, THILP granted a collateral mortgage (first mortgage)

encumbering the leasehold estate to secure a $15,000,000 collateral

mortgage note, which in turn was pledged as collatera l on a loan

from First Financial Bank (FFB). 5 In May of the following year,

THILP granted another collateral mortgage (second mortgage) on the

leasehold est ate, this one to secure a $5,000,000 collateral

mortgage note pledged to and held by the Mirannes. 6

In 1985, little more than a year after granting the second

mortgage, THI LP filed for protection under Chapter 11 of the

Bankruptcy Code. The bankruptcy was later converted to a Chapter

7 proceeding and a trustee was appointed. In the spring of 1986,

the trustee applied for court approval to sell the leasehold estate

at public auction, free and clear of essentially all encumbrances,7 At this point, the leasehold estate consisted principally of

the Bayou Plaza Hotel, formerly known as the Fountainbleau Hotel.

4 specifically including the second mortgage. 7 The bankruptcy court

issued an order advising all creditors and parties in interest who

might oppose the proposed sale to serve any objections to the sale

on the trustee and file such objections with the court by June 12,

1986. The court also set June 16, 1986 as the date for a hearing

on the trustee’s application. At the hearing, plaintiff Edmond G.

Miranne, Jr., an attorney-at-law, appeared on behalf of himself,

pro se, and his father, plaintiff Edmond G. Miranne, as holders of

the note secured by the second mortgage. Their respective wives,

plaintiffs Minna Lee Winer and Mary Anna Rivet, did not appear in

person; neither were they identified by name as being represented

by Miranne, Jr.

On the day after the hearing, the bankruptcy court granted the

sale application and ordered that the leasehold estate be sold free

and clear of virtually all liens and encumbrances, ex pressly

identifying the second mortgage held by the Mirannes as one of the

myriad encumbrances to be canceled. As no appeal was taken from

that order, the trustee proceeded with the public auction of the

leasehold estate. At the auction, FFB, the holder of the first

mortgage, submitted the only bid. Approximately two months later,

the bankr uptcy court approved the auction results, directed that

the sale of the leasehold estate to FFB be consummated, and ordered

the Recorder of Mortgages for Orleans Parish to cancel the liens

and encumbrances listed, which expressly included the second8 Under Louisiana Civil Code Article 1903, an obligation may

be extinguished by “confusion” when the qualities of obligee and

o bligor are united in the same person. Thus when a lessor’s

interest and a lessee’s interest in the same immovable property are

consolidated in the same person, the lease ceases to exist and the

person vested with both interests will hold perfect or full

o wnership

—— essentially the equivalent of “fee simple” title in

the common law. S ee Ranson v. Voiran

, 146 So. 681, 682 (La. 1931).

5 mortgage held by the Mirannes. Despite the bankruptcy court’s

order, however, the second mortgage was, for some as yet

u nexplained reason, never canceled and remained inscribed on the

public records of Orleans Parish.

Secor Bank eventually succeeded FFB as owner of the leasehold

estate. In December 1993, Defendants-Appellees Walter L. Brown and

Perry S. Brown, successors-in-intere st to the original lessors,

sold the leased premises to Secor, thereby vesting S ecor with

perfect ownership of the leased premises. 8 Later the same day,

Secor in turn conveyed its newly acquired full ownership in the

leased premises to FSA, which remained the record owner as of the

commencement of the instant litigation. Secor was thereafter

succeeded by Regions.

A year later, the Mirannes filed this suit in Louisiana state

court against the defendants, alleging that the December 1993

transactions

—— in which the Browns conveyed their interest in the

leased premises to Secor (which already owned the leasehold

estate), and Secor in turn conveyed the leased premises in full

ownership to FSA —— had the net effect of canceling the lease and

thereby abrogating the Mirannes’ purported rights under the second

mortgage which, they alleged, still encumbered the le asehold9 44 F.3d 362 (5th Cir. 1995).

6 estate. The Mirannes sought (1) to have the second mortgage

r e cognized and enforced, via ordinaria, against the immovable

property located on the lea sed premises, or (2) alternatively,

damages. In their complaint, the Mirannes assiduously avoided any

hint of t he previous bankruptcy proceedings and orders affecting

the leased p remises, the leasehold estate, and their second

mortgage against it.

The defendants removed the case to federal district court,

asserting federal question jurisdiction on the theory that the 1986

bankruptcy court orders expressly extinguished the Mirannes’ rights

under the second mortgage. Following removal, Regions and FSA

filed motions for summary judgme nt asserting, inter alia, claim

preclusion based on the bankruptcy court’s orders. The Browns also

filed for summary judgment adopting Regions a nd FSA’s claim

preclusion defens e and asserting, as a separate and independent

basis for dismissal, the Mirannes’ failure to state a cause of

action agains t the Browns. More or less simultaneously, the

Mirannes sought remand, contending that the bankruptcy court orders

a t most provided defendants with an affirmative defense and thus

could not confer removal jurisdiction. The district court denied

the Mirannes’ motion to remand, relying primarily on the principles

announced by this court in Carpenter v. Wichita Falls Independent

School District

. 9 At the same time, the court granted summary

judgment in favor of FSA and Regions on claim preclusion grounds,

and in favor of the Browns on their separate and independent10 See id. at 365-67.

1 1 Garrett v. Commonwealth Mortgage Corp. of America

, 938 F.2d

591, 593 (5th Cir. 1991).

12 28 U.S.C. § 1441.

13 Carpenter , 44 F.3d at 365-66.

14 Id. at 365.

15 See 28 U.S.C. § 1441(a).

7 grounds. The Mirannes timely filed a notice of appeal from these

rulings.

II.

ANALYSIS

A. Removal Jurisdiction —— Basic Principles

We have recently reviewed the well established pri nciples

governing federal question removal jurisdiction. 10 The denial of

a motion to remand an action removed from state to fe deral court

present s a question of federal subject matter jurisdiction and

statutory construction which we review d e novo on appeal. 11 As a

defendant’s use of the removal statute 12 deprives a state court of

a case properly before it and thereby implicates conc erns of

federalism, that statute must be strictly construed. 13 It follows

that the defendant who seeks to sustain removal must also bear the

burden of establishing federal jurisdiction over the subject matter

of the state court suit. 14

As a general proposition, removal hinges on whether a federal

district court could have asserted original jurisdiction over the

state court action had it initially been filed in federal court. 1516 28 U.S.C. §§ 1331 & 1441(b).

1 7 Carpenter

, 44 F.3d at 366 (citing Louisville & Nashville R.

Co. v. Motley , 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908).

1 8 Carpenter , 44 F.3d at 366 (citing F ranchise Tax Board v.

Construction Laborers Vacation Trust

, 463 U.S. 1 , 12, 103 S.Ct.

2841, 2848, 77 L.Ed.2d 420 (1983)) (emphasis added).

19 Carpenter , 44 F.3d at 366.

20 Gully v. First Nat’l Bank

, 299 U.S. 109, 112, 57 S.Ct. 96,

97, 81 L.Ed. 70 (1936).

8 When a defendant seeks to remove a state court suit on the basis of

federal question jurisdiction, as was the case here, removal will

be appropriate only if the action is one “arising under the

Constitution, laws or treaties of the United States.” 1 6 In most

cases, a defendant’s assertion of federal question removal

jurisdiction will rise or fall on the allegations in the

plaintiff’s “well-pleaded complaint,” 17 that is, on whether “there

appears on the face of the complaint some substantial, disputed

question of federal law.” 18 This means that the defendant must

predicate his assertion of federal jurisdiction on the allegations

of the plaintiff’s cl aim, not, for example, on the basis of an

anticipated or even an inevitable federal defense. 19 As Justice

Cardozo succinctly put it, the defendant must show that a federal

right is “an element, and an essential one, of the plaintiff’s

cause of action.” 20

B. Artful Pleading Exception ——

Federal Res Judicata

Federal courts have over the years created but a few narrow

exceptions to the fundamental precept of the well-pleaded complaint21 Carpenter , 44 F.3d at 366.

2 2 Id. We note that another jurisprudentially created

doctrine, more frankly labeled “fraudulent joinder,” supports the

assertion of removal jurisdiction on the basis of diversity of

citizenship when a plainti ff’s well-pleaded complaint would not

otherwise all ow removal because of the joinder of a non-diverse

defendant. Even though we give great deference to the allegations

found in the plaintiff’s state court complaint, we will

nevertheless examine the questioned joinder of a non-diverse

defendant and hold it to be fraudulent under this doctrine when

there is no possibility of recovery against that party. S ee Dodson

v. Spillada Maritime Corp.

, 951 F.2d 40, 42 (5th Cir. 1992);

Carriere v. Sear s Roebuck and Co. , 893 F.2d 98, 100 (5th Cir.

1990). The parallel between the fraudulent joinder exception and

the artful pleading exception should be obvious.

2 3 Caterpillar, Inc. v. Williams

, 482 U.S. 386, 393, 107 S.Ct.

2425, 96 L.Ed.2d 318 (1987) (quoting Metropolitan Life Ins. Co. v.

Taylor , 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)).

9 doctrine that “[t]he plaintiff is master of her complaint.” 21 The

common rationale for these jurisprudential exceptions

——

euphemistically known by the cynically sarcastic sobriquet of the

“artful pleading exception”

—— is that when a plaintiff has

available “no legitimate or viable state cause of action, but only

a federal claim, he may not avoid removal by artfully casting his

federal suit as one arising exclusively under state law.” 22

The first and best known specie of artful pleading is the one

that arises when the area of state law upon whi ch a plaintiff’s

claim is based has be en “completely pre-empted” by federal law;

i.e., when the “pre-e mptive force of a statute is so

‘extraordinary’ that it ‘converts an ordinary state law complaint

into one stating a federal claim for purposes of the well-pleaded

complaint rule.’” 23 Only a few types of claims have been held to

be “completely pre-empted,” though

—— most notably those preempted2 4 See Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n. of

Machinists

, 390 U.S. 557, 559, 88 S.Ct. 1235, 1237, 20 L.Ed.2d 126

(1968) (§ 302 of LMRA); Metropolitan Life

, 481 U.S. at 65-66 (§ 502

of ERISA).

25 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981).

2 6 Six of the plai ntiffs had originally filed their suits in

federal court, and one plaintiff who originally filed suit in state

court saw his action removed to federal court on federal question

and diversity jurisdiction grounds. The district court found that

all of the plaintiffs had failed to allege an “injury” to their

“property or business” within the meaning of §4 of the Clayton Act,

15 U.S.C. § 15. Id. at 395-96.

10 by Section 302 of the Labor Management Relations Act of 1947 or by

Section 502 of the Employment Retirement Income Security Act of

1974. 24

A second and somewhat rarer specie of artful pleading that

justifies an exception is the one exemplified by the case we

consider today, as illustrated in Federated D epartment Stores v.

Moitie 25

—— claim preclusion or res judicata. In M oitie

, seven

plaintiffs had filed and lost a consolidated antitrust suit in

federal court. 26 Five of the seven plaintiffs appealed the district

court decision, but two (Brown and Moitie) elected to file almost

identical second suits ( Brown II and Moitie II ) in state court,

facially based exclusively on state law. After the defendants

removed these two state court suits, Brown and Moitie sought remand

to state court. The district court first denied Brown’s and

Moitie’s motions to remand, finding that their state court actions

“were pro perly removed to federal court because they raised

‘essentially federal law’ claims,” then dismissed the claims on res27 Id. at 396-97.

28 Id. at 397-98.

2 9 Id. at 398 (“We granted certiorari . . . to consider the

validity of the Court of Appeals’ novel exception to the doctrine

of res judicata.”).

11 judicata grounds. 27

In the meantime, the Ninth Circuit had ruled in favor of the

other original federal plaintiffs

—— the five who had appealed

their district court losses

—— based on a supervening Supreme Court

decision that had worked a substantive change i n pertinent

antitrust law. Consequently, when the two state court plaintiffs,

Brown and Moitie, appealed the distr ict court’s denial of their

motions to remand and its subsequent dismissals for res judicata,

the Ninth Circuit reversed the district court on the merits of its

res judicata determination, but

— — importantly —— only after

affirming the district court’s as sertion of removal jurisdiction

and denial of remand. 28 The Supreme Court then granted c ertiorari

to consider, specifically, the prec lusion issues raised by the

Ninth Circuit’s res judicata analysis. 29

Although the Supreme Court’s decision was primarily focused on

the substantive preclusion issues thus presented, the Court, of

necessity, also affirmed the district courts’ original assertion of

removal jurisdiction over Brown II and Moitie II and the Ninth

Circuit’s affirmance of that jurisdiction. In a lengthy footnote,

the Court stated:

The Court of Appeals also affirmed the District Court’s

conclusion that Brown II was properly removed to federal

court, reasoning that the claims presented were “federal30 Id. at 397 n. 2 (emphasis added).

3 1 See Magic Chef, Inc. v. Int’l Molde rs & Allied Workers

Uni on , 581 F.Supp. 772, 776 n. 4 (E.D. Tenn. 1983 (claiming that

Moitie ’s value as a uthority regarding removal jurisdiction was

superseded by the Supr eme Court’s opinion in F ranchise Tax Bd.

, which was written by Justice Brennan, a vocal dissenter in Moitie

, and which does not cite Moitie at all); Robert A. Ragazzo,

Reconsidering the Artful Pleading Doctrine , 44 Hastings L.J. 273,

303-315 (1993).

12 in nature.” W e agree that at least some of the claims

had a sufficient federa l character to support removal

. As one treatise puts it, courts will not permit plaintiff

to use artful pleading to close off defendant’s right to

a federal forum

. . . [and that] occasionally the removal

court will seek to determine whether the real nature of

the claim is federal, regardless of plaintiff’s

characterization. 14 C. Wright, A. Miller, & E. Cooper,

Federal Practice and Procedure § 3722, pp 564-566 (1976)

(citing cases) (footnote omitted). The District Court

applied that settled principle to the facts of this case. . . . We will not question here that factual finding. 30

Regrettably, the Supreme Court did not explain precisely what there

was about the plaintiffs’ state law claims that was so “federal in

nature” as to support removal under the artful pleading exception.

Even though at least one district court and one c ommentator

have suggested that Moitie should be disregarded either as an

aberration that has never been confirmed by the Supreme Court or as

an injudicious application of an already suspect doctrine, 3 1 the

circuit courts have nevertheless attempted, as they must, to find

meaning in Moitie ’s enigmatic footnote. As it happens, different

circuits have articulated one or the other of two distinct

rationales for the Supreme Court’s use of the artful pleading

exception in its approval of the district court’s denial of remand

in Moitie

.

One rationale was offered in T ravelers Indemnity Co. v.3 2 794 F.2d 754, 760-61 (2nd Cir.), cert. denied

, 479 U.S. 885,

107 S.Ct. 277, 93 L.Ed.2d 253 (1986).

33 See Ragazzo, 44 Hastings L.J. at 307-308.

3 4 813 F.2d 1368, 1374-75 (9th Cir.), c ert denied

, 484 U.S.

850, 108 S.Ct. 150, 98 L.Ed.2d 106 (1987) (critiquing the election

of forums rationale as applied in Sarkisian and as discussed in

dicta of an earlier Ninth Circuit d ecision, S alveson v. Western

States Bankcard Ass’n , 731 F.2d 1423 (9th Cir. 1984)).

3 5 Id. at 1376 (“We therefore construe M oitie as limited to

removal of state claims precluded by the res judicata effect of a

federal judgment.”).

13 Sarkisian

, 32 in which the Second Circuit interpreted M oitie to

permit removal whenever a plaintiff files a complaint based on

federal law in federal court and subsequently files an ostensible

state law claim in state court containing essentially the same

elements. Consistent with the well-pleaded complaint doctrine,

this “election of forums” or “consent” rationale recognizes in

essence that a plaintiff remains the master of his complaint, but

engrafts on this doctrine the limitation that the plaintiff is

allowed but one opportunity to characterize his claims. 33

Reasoning that the Se c ond Circuit’s “election of forums”

rationale would lead to an unwarranted and excessive expansion of

federal removal jurisdiction, th e Ninth Circuit, in S ullivan v.

First Affiliated Securities, Inc.

, 34 concluded that Moitie is better

explained a s permitting removal of only those subsequent state

court claims that are barred by the res judicata effect of a prior

federal judgment. 35 As the Ninth Circuit later put it, a

plaintiff’s state law claim may be classified as “ ‘artfully

pleaded’ when it is drafted to avoid stating allegations or claims3 6 Ethridge v. Harbor House Restaurant , 861 F.2d 1389, 1403

(9th Cir. 1988); see also Clinton v. Acequi, Inc.

, 94 F.3d 568, 571

(9th Cir. 1996) (stating that Ninth Circuit has consistently “found

the artful pleading doctrine to support removal where a plaintiff

files his state law claims in state court in an attem p t to

circumvent the res judicata effect of a prior federal claim that

has been reduced to judgment”).

3 7 See e.g.

, Ultramar American Limited v. Dwelle

, 900 F.2d

1412, 1415 (9th Cir. 1990) (acknowledging that Sullivan recognized

a new basis for invoking the artful pleading doctrine but noting

that recharacterization of a stat e court claim under the res

judicata branch of the doctrine may only occur when prior federal

judgment resolved issues of federal not state law); Doe v. AlliedSig nal, Inc. , 985 F.2d 908, 912 (7th Cir. 1993) (recognizing

Ultramar distinction but also finding that removal was improper

because no res judicata was present); Ethridge

, 861 F.2d at 1403

(endorsing Sullivan but finding that removal was improper because

federal court lacked subject matter jurisdiction over complaint in

prior and allegedly preclusive federal action); Redwood Theaters,

Inc. v. Festival Enterprises, Inc.

, 908 F.2d 477, 480 (9th Cir.

1990) (applying Sullivan rule but holding that removal was improper

because plaintiff’s claim had never previou sly been before a

federal court and no res judicata defense was available to

defendants).

38 44 F.3d 362 (5th Cir. 1995).

14 already resolved by a prior federal judgment.” 3 6 In a number of

subsequent cases, the Ninth Circuit, as well as other circuits,

have endorsed Sullivan ’s articulation of this “federal res

judicata” rationale for Moitie and have applied Sullivan ’s

principles, all the while recognizing that this additional branch

of the artful pleading exception must be used sparingly, in the

narrow and exceptional circumstances described by Sulli van and

Moitie

. 37

In Carpenter v. Wichita Falls Ind. School District

, 38 a panel

of this court squarely confronted the same interpretive issue39 In Carpenter , the plaintiff, a school administrator, filed

two separate suits against the school district she worked for

——

one in federal court alleging violations of her free speech rights

under the First Amendment to the United States Constitution and one

in state court stating a s tate contract claim and a free speech

claim exclusively under the Texas Constitution. 44 F.2d at 365.

Similarly, Sullivan involved a federal action under federal

securities law and another similar and simultaneous action in state

court under state securities law. 813 F.2d at 1370.

40 Carpenter , 44 F.3d 369 n. 6, 370 n. 12.

41 Id. at 370.

42 Id.

43 28 U.S.C. § 2283 (“A court of the United States may not

grant an injunction to stay proceedings in a state court except .

. . to protect or effectuate its judgments .”) (emphasis added).

15 presented to the Ninth Circuit by Sullivan

. 39 Explicitly rejecting

the Second Circuit’s expansive election of forums a pproach and

agreeing with the Ninth Circuit’s “narrower interpret ation,” 4 0 we

concl uded in C arpenter that the “federal character” of the

plaintiff s’ claims justifying removal in M oitie must be found in

the federal law of preclusion. 41 In so doing we were careful to

reiterate our continuing confidence that state courts would comply

with their Supremacy Clause obligation to apply feder al rules of

res judicata. 42

In addition, we emphasized our awareness that defendants in

state court suits frequently have the option of employing the

relitigation exception to the Anti-Injunction Act, 4 3 as an

alternative approach to disposing of a state court suit that is

precluded by a prior federal judgment. The fact that a defendant

could seek to enjoin a state court action and thereby, if

successful, achieve the same result that he might have obtained had44 Id.

45 Id. (emphasis added).

16 he instead sought to remove and dismiss the suit under Moitie

, does

not, Judge Garwood expressly observed in Carpenter , render Moitie

superfluous. Rather, Judge Garwood went on to explain, the coextensive nature of the relitigation exception t o the AntiInjunction Act on the one hand and the artful pleading exception to

the well-pleaded complaint doctrine

—— based on Moitie ’ s federal

res judicata grounds

—— on the other hand simply suggests that “any

potential impact on federalism from removal [in M oitie ] was not

significant.” 44 In thus clearly setting forth the rule for this

circuit, the Carpenter panel concluded by stating that:

[w]e hold that Moitie should apply only where a plaintiff

files a state cause of action completely precluded by a

prior federal judgment on a question of federal law. 45

Returning to the case now before us, we conclude that the

district court properly reasoned that Carpenter ’s holding provides

the sole framework for analyzing the jurisdictional issues raised

by the Mirannes’ thinly veiled collateral attack on the bankruptcy

court’s prior orders. The fact that in Carpenter the federal res

ju dicata artful pleading rationale did not, in the end, support

removal under the specific circumstances of that case

—— there was

no prior federal case and no prior federal judgment, just two

simultaneously filed suits, one based on federal law and one

scrupulously

—— “artfully”

—— based solely on state law

—— does

not, as the Mirannes now contend, render Judge Garwood’s carefully

articulated holding in Carpenter dicta. To the contrary, and just4 6 United States v. Shanbaum

, 10 F.3d 305, 310 (5th Cir. 1994).

17 as the district court here found, Carpenter controls. Accordingly,

if the defendants can show that the Mirannes’ state court suit,

purportedly brought to enforce their erstwhile second mortgage, is

in fact barred by the claim preclusive effects of the bankruptcy

court’s 1986 orders that authorized and approved the sale of the

leasehold estate free and clear of that mortgage and mandated its

cancellation, then the district cour t’s denial of the Mirannes’

motion to remand, and its dismissal of their suit for essentially

the same reason, must be affirmed.

C. The Bankruptcy Court’s 1986 Orders

Bar the Mirannes’ Present Suit

Under the “pure” res judicata o r claim preclusion rubric as

developed in this circuit, a prior judgment will operate to

preclude a later filed suit if four elements are present: (1) The

par ties in the later action are identical to, or at least in

privity with, the parties in the prior action; (2) the judgment in

the prior action was rendered by a court of competent jurisdiction;

(3) the prior action concluded with a final judgment on the merits;

and (4) the same claim or cause of action is involved in both

actions. 46 As we find beyond peradventure that all four elements

subsist in the instant case, we conclude, just as did the district

court, that the claims presented by the Mirannes’ subsequent state

court action, ostensibly seeking to enforce their second mortgage,

are in fact precluded by the bankruptcy court’s 1986 orders.47 In Louisiana, married women are entitled to retain and use

their maiden names, and frequently do so in legal documents, such

as deeds, mortgages, and pleadings, especially in New Orleans and

the “country parishes” of South Louisiana. S ee La. Civ. Code art.

100.

48 Eubanks v. F.D.I.C. , 977 F.2d 166, 170 (5th Cir. 1992).

4 9 S ee La. Civ. Code art. 2340 (“Things in possession of a

spouse during the existence of a regime of community of acquets and

gains are presumed to be community, but either spouse may prove

that they are separate property.”).

18 1. Identity and Privity of the Parties

The bankruptcy court’s order authorizing the sale of the

leasehold estate reflects that Edmond G. Miranne Jr., an attorneyat-law, appeared in court on the previous day, both pro se and as

counsel for his father, in connection with the pending sale

application by the trustee. The fact that the Mirannes’ wives,

Rivet and Winer, 47 did not personally appear and were not expressly

identified by Miranne Jr. as parties that he represented, is of no

significance. We have previously held that one individual’s

participation in a bankruptcy proceeding may bind a non-party, such

as a spouse, whose interests are clos ely aligned with and

adequately represented by the person who did appear. 48 Here, Rivet

and Winer had interests identical to those of their husbands in the

bankruptcy proceeding —— namely the preservation (more accurately

here, the resurrection) and protection of the second mortgage. In

fact, their subsequent state cour t complaint listed only the

husbands as owners of the collateral mortgage note, even though it

was presumptively community property under Louisiana law. 49

C onsequently, the husbands’ participation in the 1986 bankruptcy5 0 Under Louisiana’s community property laws, the rule of equal

management generally ap plies to community property; however, the

concurrence of both spouses is requir ed for the alienation,

encumbrance or lease of community immovables and in other limited

situations specified by law. La. Civ. Code arts. 2346-47. As the

collateral mortgage note held by the Mirannes is classified as an

“incorporeal movable,” concurrence of the Mirannes’ spouses would

not have been required for the husbands to alienate whatever rights

flowed from their ownership of the note and the mortgage securing

it. See Nathan, 49 La. L. Rev. at 44.

5 1 Meza v. General Battery Corp.

, 908 F.2d 1262, 1266 (5th Cir.

1990); Howell Hydrocarbons, Inc. v. Adams , 897 F.2d 183, 188 (5th

Cir. 1990).

19 proceedings by way of Edmond G. Miranne, Jr.’s appearance at the

sale application hearing served as adequate representation of the

interests of the spouses in community and was thus no less binding

on the wives for claim preclusion purposes than it was on their

husbands. 50

With respect to the defendants, there is no dispute that FFB

was a party to th e bankruptcy proceedings as holder of the first

mortgage and the eventual purchaser of the leasehold estate at the

public auction. Neither is there doubt that Regions and FSA are

successors-in-interest to FFB with respect to the property affected

by the bankruptcy court orders. Again, the rule is well

established that a judgment may have claim preclusive effect on a

non-party if the non-party is a successor-in-interest to a party’s

interest in property affected by the judgment. 51 Consequently, both

Regions and FSA are bound by the bankruptcy court’s orders to the

same extent as is their predecessor, First Financial. Accordingly,

we conclude that the first element of claim preclusion is clearly

satisfied in this case with respect to all four plaintiffs and to5 2 We acknowledge that this first condition of claim preclusion

cannot be satisfied with respect to the Browns, but we dispose of

the jurisdictional wrinkle raised by this fact below. S ee infra

Part E.

53 28 U.S.C. § 1334(a),(b).

54 Southmark Properties v. Charles House Corp.

, 742 F.2d 862,

870 (5th Cir. 1984); In re Heine , 141 B.R. 185, 187 (Bank. D.S.D.

1992); see also Matter of Baudoin

, 981 F.2d 736, 740 (5th Cir.

1983) (recognizing wide reach of jurisdiction under Title 11).

55 28 U.S.C. § 157(a),(b)(2)(N); Heine , 141 B.R. at 188.

20 defendants Regions and FSA. 52

2. A Court of Competent Jurisdiction and A Final Judgment

The seco nd and third claim preclusion elements are also

present in the instant case. As a general proposition, district

courts ha ve jurisdiction over cases or civil proceedings arising

under Title 11, or arising in or related to cases under Title 11. 53

It follows that a district court has jurisdiction to authorize and

approve a trustee’s sale. 54 Indeed, a proceeding to sell property

free and clear of liens pursuant to 11 U.S.C. § 363(b) and (f) is

a core proceeding in which the bankruptcy court has jurisdiction to

issue final orders and judgments. 55 Here the proposed sale of the

leasehold interest arose under and was related to THILP’s chapter

7 bankruptcy case. Consequently, the bankruptcy court had

jurisdictio n to consider the Trustee’s sale application and to

issue the ensuing orders (1) authorizing the sale of the leasehold

estate free and clear of specified junior lie ns, expressly

including the second mortgage hel d by the Mirannes, and

(2 ) approving that sale and directing the cancellation of those

specified inferior encumbrances.5 6 Appellants principally contend that the bankruptcy court

order extinguishing the second mortgage was invalid because the

order did not result from an adversary proceeding as required by

Fed. R. Bank. Proc. 7001 and because the court did not satisfy the

provisions of § 363(f)(1)-(5).

57 Matter of Baudoin , 981 F.2d at 742; Hendrick v. Avent

, 891

F.2d 583, 586 (5th Cir.), cert. denied

, 498 U.S. 819, 111 S.Ct. 64,

112 L.Ed.2d 39 (1990); Southmark Properties , 742 F.2d at 870.

21 Although they characterize the bankruptcy court’s sale orders

as actions beyond the “power” of the bankruptcy court under the

rules and provisions of the Bankruptcy Code, 56 the Mi rannes’

aut hority for this proposition does not comport with Congress’

jurisdictional grant to the district court

—— and its adjunct, the

bankruptcy court

—— to determine wh ether property of a debtor

should be sol d free and clear of liens and encumbrances. The

M irannes, of course, were entitled to question whether th e

bankruptcy court properly exercised the powers granted to it by

11 U.S.C. § 363 in the particular circumstances of this case. This

kind of substantive

—— but not jurisdictional

—— objection to a

bankruptcy court’s orders, however, is one that had to have been

timely raised either in an appeal or a motion for reconsideration,

not eight years after the fact in a state court collateral attack

on those orders. We reject out of hand the Mirannes’ specious

contention that, for clai m preclusion purposes, the bankruptcy

court lacked jurisdiction to issue the 1986 sale orders.

In addition, an order by a bankruptcy court authorizing or

a pproving the sale of an asset of the bankrupt estate is a final

judgment on the merits for res judicata purposes even if the order

neither closes the bankruptcy case nor disposes of any claim. 5 75 8 Matter of Baudoin

, 981 F.2d at 743; Southmark Properties

,

742 F.2d at 870-71.

59 Matter of Baudoin , 981 F.2d at 743.

22 The refore, there can be no serious question that the bankruptcy

c ourt’s 1986 orders authorizing and approving the sale of the

leasehold estate free and clear of essentially all li ens and

encumbrances were final judgments capable of pre cluding the

Mirannes’ later filed state court collateral attack. It is equally

beyond serious question that these final judgments affected issues

of federal law: Bankruptcy is a quintessential federal question.

3. The Same Cause of Action

In conducting our search for the presence of the fourth

element required for the applicability of cla im preclusion, we

employ the transactional test of Section 24 of the Restatement

(Second) of Judgments to determine whether the two suits in

question involve the same claim for purposes of claim preclusion. 58

Under the “same claim” inquiry, the critical issue is whether the

two actions under consideration are based on the same nucleus of

operative facts

. 59

In the instant case, we find that both the bankruptcy court’s

19 86 orders authorizing and approving the sale of the leasehold

estate free and clear of the Mirannes’ second mortgage and the

Mirannes’ cla ims in their state court action are unquestionably

based on, and in fact are entirely dependent on, the same nucleus

of operative facts

—— namely, the viability, the validity, the

enforceability of the second mortgage. In “artfully” contending23

that their putative state cause of action arises solely out of the

December 1993 transaction involving the Browns, Secor and FSA, the

M irannes studiously ignore the fact their claim relative to that

1993 transfer can go absolutely nowhere unless they can establish

that their second mortgage was alive and well at that time, despite

the 1986 bankrupt cy court orders that expressly authorized and

approved the sale of the leasehold estate free and clear of that

mortgage and directed that it be canceled from the mortgage records

of Orleans Parish.

W ithout an extant enforceable mortgage, the Mirannes canno t

forthrightly plead either a right of action or a cause of action in

state court. Indeed, all of the acts of alleged wrongdoing in the

December 1993 transaction are so inextricably intertwined with and

dependent on the 1986 bankruptcy orders directing and approving the

sale of the leasehold estate free and clear of the second mortgage

that we would be hard pressed to conjure up a better hypothetical

example of two actions arising from the same nucleus of operative

facts. In this regard we remain ever mindful of the basic canon of

Louisiana law that the public records do not create rights; the

existence of the uncanceled inscription of the second mortgage on

the public records could not keep the mortgage itself legally

viable after the obligation it secured —— the collateral mortgage

note

—— as well as the mortgage, were terminated in the bankruptcy

of the maker/mortgagor, THILP.

A review of relevant case law applying res judicata principles

in the bankruptcy context further confirms our analysis. On one6 0 See Southmark Properties

, 742 F.2d at 870-72 (debtor’s later

filed lender liability action b arred by bankruptcy court’s order

authorizing sale of property in debtor’s estate “free and clear of

all

. . . claims” to secured cr editor as both involved “common

nucleus of operative facts”); Hendrick

, 891 F.2d at 587 (trustee’s

actions under RICO and securities laws barred by bankruptcy court’s

sale orde r authorizing transfer of title of stock against which

trustee had launched his collateral action).

61 864 F.2d 36 (5th Cir. 1989).

24 hand, our decisions have consistently held that under the

transactional test a final bankruptcy court sale bars any

subsequent claims that challenge the finality or integrity of the

transfer of title pursuant to that sale. 60 On the other hand, the

Mirannes’ reliance on D-1 Enterprises, Inc. v. Commercial State

Bank

, 61 a case in which we held that res judicata does not apply to

claims that were largely unrelated to and which could not have been

raised in an earlier bankruptcy proceeding, is inappo site to the

instant case. Unlike the situation in D -1 Enterprises

, here the

Mirannes had far more than a mere opportunity to object to the sale

of the leasehold estate in the bankruptcy court: They were invited

by the court to file their objections; they actually appeared in

court at the hearing scheduled for the airing of such objections;

and once the court issued its sale order, they could have timely

filed either a motion for reconsideration

—— or a notice of

appeal —— but they did neither. Given their personal attendance,

together with these multiple waived or forfeited opportunities to

raise and litigate their objections (if any) to the sale, the

Mirannes cannot now contend

—— at least not with a straight face

——6 2 In D-1 En terprises , we found that the lender liability

claims that debtor sought to assert in the la ter action were not

“direct defenses” that the debtor could or should have litigated in

response to the creditor’s earlier motion for relief from stay.

Id. at 39. Furthermore, D -1 Enterprises also disti nguished

Southmark in which preclusion was appropriate in the context of a

“court-ordered public cash auction.” Id.

63 See supra Part B, and 44 F.3d at 370.

64 Id.

25 as did the debtor in D-1 Enterprises

, 62 that claim preclusion should

not be applied because their claim could not have been effectively

litigated in the earlier proceeding.

Indisputably, all requisites of claim preclusion are present

here, vis-á-vis Regions and FSA. As to these two defendants,

therefore, we affirm the district court’s refusal to remand the

Mirannes’ pre v iously removed action under the artful pleading

exception to the well-pleaded complaint doctrine.

D. The “Actually Litigated” Standard

As we noted above, and as this court previously observed in

Carpenter

, the relitigation excep tion to the Anti-Injunction Act

provides another, entirely independent mechanism which defendants

(and the federal courts) may use to protect prior federal court

judgments. 63 In C arpenter we reasoned that, as the relitigation

exception to the Anti-Injun ction Act had “already realigned

federal-state relations in favor of the federal courts,” M oitie ’s

use of the res judicata branch of the artful pleading exception

signified nothing more than that “any potential impact on

federalism from removal was not significant.” 6 4 Thus two lessons

are to be gleaned from Carpenter : (1) Issues of federalism are not65 486 U.S. 140, 106 S.Ct. 1684, 100 L.Ed.2d 127 (1988).

26 implicated in this context; and (2) the relitigation exception to

the Anti-Injunction Act

—— a route that parallels (but is not

identical to) removal via the res judicata iteration of the artful

pleading exception —— is not the exclusive path available for

squelchin g precluded sequential state court litigation of claims

previously litigated in federal court.

Nevertheless, in reliance on the above-quoted limited

discussion of how the Anti-Injunction Act co-exists with the

federal res judic ata interpretation of M oitie

, the Mirannes

imaginatively contend that the co urt in C arpenter implicitly

incorporated the specific restraints of the relitigation exception

into its res judicata artful pleading exception based on M oitie

.

In particular, they contend that removal under Carpenter is somehow

limited by the anti-injunction holding in Chick Kam Choo v. Exxon

Corp. 65 The Mirannes argue that C hick Kam Choo stands for the

proposition that injunctions may be issued under the relitigation

exception to §2283 only with respect to issues that were “actually

litigated” in the prior proceeding —— that is, only in

circumstances in which issue —— but not claim —— preclusion would

apply in a successive proceeding; and that such a limitation must

per force restrict the artful pleading exception to issue

preclusion. This stretch by the Mirannes, in attempting to

incorporate an “actually litigated” restriction into Carpenter

, is

fatally flawed, however.

First, we note that nowhere in Carpenter did we even mention,66 398 U.S. 281, 286-287, 90 S.Ct. 1739, 26 L.Ed. 234 (1970).

67 Chick Kam Choo , 486 U.S. at 148 (emphasis in original).

27 much less imp ose, an “actually litigated” standard for removal

under the res judicata branch of the art ful pleading exception;

neither did we so much as refer to Chick Kam Choo , much less cite

it as authority. Second, we are aware of no other court that, when

applying the federal res judicata manifestation of the artful

pleading exception following Sullivan

, has seen fit to apply

—— or

even mention —— this standard.

But even if we assume, solely for the sake of argument, that

an “actually litigated” requirement was imported through Carpenter

,

we would still find that removal is proper under the circumstances

of this case. In C hick Kam Choo

, the Supreme Court, relying on

Atlantic Coast Line R. Co. v. Locomotive Engineers

, 66 stressed that:

an essential prerequisite for applying the relitigation

exception is that the claims or issues which the federal

injunction insulates from litigation in state proceedings

actually have been decided by the federal court.

Moreover, Atlantic Coast Line illustrates that this

prerequisite is str ict and narrow. The court assessed

the precise state of the record and what the earlier

federal order actually said; it d id not permit the

District Court to render a post hoc judgment as to what

the order was intended to say. 67

For the bankruptcy court in the instant case to authorize and

approve the sale of the leasehold estate free and clear of

essentially all liens and encumbrances, that court necessarily had

to decide whether the Mirannes’ inferior second mortgage could

survive as an encumbrance against the leasehold estate after that

estate was sold at public auction by the THILP trustee’s68 Id. at 149.

69 Dissent, infra , at 1-2 (emphasis added).

28 foreclosure on the superior first mortgage. Indeed, the bankruptcy

court’s order authorizing sal e of the leasehold estate “ a ctually

said,” inter alia, that (1) Edmond G. Miranne, Jr. appeared on his

and his father’s behalf, (2) all creditors were given notice and an

opportunity to object and be h eard, and (3) the sale of the

leasehold estate would be free and clear of “all

. . . liens,

mortgages and encumbrances,” including, specifically, the Mirannes’

second mortgage. Given C hick Kam Choo ’s admonition to focus on

“what the earlier federal order actually said,” not what “the order

intended to say” (albeit likely the same thing in this case), it is

indisputable that in the 1986 bankruptcy court proceedings the

continuing validity of the Mirannes’ inferior mortgage was

“actually litigated and decided.” 68

E. Response to Dissent

Although our colleague, Judge Jones, in her thoughtful dissent

agrees with our essen tial holding that M oitie permits removal of

state court claims that are barred by the preclusive res judicata

effect of a prior federal judgment, she would further limit

application of Moitie ’s res judicata re moval avenue to cases in

which (1) “the prior judgment

. . . involved a claim made under

federal law,” and (2) “the claim being removed repres ented a

plaintiff’s attempt to seek r elief in state court by

recharacterizing an ‘essentially federal’ c laim they [sic] had

unsuccessfully pursued first in federal court .” 69 We acknowledge70 900 F.2d 1412 (9th Cir. 1990).

71 Id. at 1415-16 (emphasis added).

7 2 44 F.3d at 370 (“If there was any federal character at all

to the plaintiffs’ state law cla ims in Moitie , it must be the

federal law of preclusion.”)

73 In Ultramar , the Ninth Circuit observed that:

The Moitie doctrine seems base d on a court divining a

litigant’s motive s for bringing suit. When a litigant

suffered a final defeat on a federal claim yet thereafter

files a similar-although-not-preempted state claim in

state court, the sequence of events gives rise to an

inference tha t the litigant is not interested in the

state cause of action per se, but is instead attempting

to circumvent the effects of the federal question

judgment

. In this limited instance, removal is allowed.

900 F.3d at 1417 (emphasis added).

29 the overarching federalism concer ns that inform Judge Jones’

critique, but we neverthe less find her additional suggested

restrictions to our already narrow holdings in Carpenter and in the

instant case to be unwarranted. First, the Ninth Circuit decision

that Judge Jones cites in support of her additional restrictions,

Ultramar American Unlimited v. Dwelle

, 70 limits Moitie

recharacterizatio n (i.e., removal) to situations “when the prior

federal judgment resolved questions of federal law,” or “when the

prior federal judgment sounded in federal law.” 71 It does not, as

far as we can discern, purport to constrain Moitie removal to

instances in which the prior federal judgment arose out of a case

that a plaintiff himself had first brought in federal court. True,

that is what happened in Moitie and that may prove to be the most

common circum stance in which M oitie removal will occur. But

Moitie ’s sanctioning of removal, as we explained in Carpenter 72 and

as the Ninth Circuit has suggested, 7 3 hinges on the preclusive74 Carpenter , 44 F.3d at 371.

30 effects of a prior federal judgment and a state court litigant’s

attempts to circumvent them artfully, not on the manner in which

the case givin g rise to the preclusive federal judgment reached

federal court in the first place.

Indeed, we emphasize that the reasons Judge Garwood found in

Carpenter that Moitie did not apply to the facts before his panel

there were (1) there was no prior federal judgment to protect, (2)

there was no federal preclusion law to apply, and (3) the plaintiff

in Carpenter

, unlike the plaintiffs in Mo itie , was “taking

preclusion risks in order to have her state law claim heard in its

preferred forum” and thus was “not attempting to avoid the effect

of a prior judgment.” 74 As we have strived to make clear in this

opinion, however, in this case we do have a prior federal judgment,

we do have federal preclusion law to apply, and we have plaintiffs

who have not taken any preclusion risks, but, to the contrary, are

clearly seeking by collateral attack to avoid the preclusive effect

of a prior federal judgment, long since in repose, that concluded

a case in which these plaintiffs had ample opportunity to assert

their interests and in fact did assert them. It follows, then,

that removal of the plaintiffs’ state court collateral attack on

the bankr uptcy court’s final judgment is entirely appropriate in

this case, even though the preclusive

—— and thus essentially

federal —— nature of that federal court judgment derived from the

underlying bankruptcy case. Here, the plaintiffs were interested

creditors who were invited to assert their rights based on their31

sec ond mortgage; there simply was no lawsuit initially filed by

these plaintiffs in federal court. Therefore, in spite of Judge

Jones’ objections, we remain firmly convinced that the Mirannes are

not entitled to have their faux foreclosure suit remanded to state

court under the well-pleaded complaint doctrine. To do so would

make a mockery of that doctrine; the very kind of untoward result

that the artful pleading exception —— like the fraudulent joinder

doctrine —— is designed to prevent.

F. The Final Removal Twist -- Supplemental Jurisdiction

Over the Mirannes’ Claims Against the Browns

To complete our analysis of the jurisdictional questions

presented by this case, we address one final, relatively minor

issue. The Mirannes insist that, even if the district court

properly asserted removal j urisdiction as to Regions and FSA and

properly denied remand as to those two defendants under the

Moitie/Carpenter res judicata artful pleading exception, that court

still c ould not exercise removal jurisdiction over the Mirannes’

claims against the Browns. This is so, they urge, because the

Browns were not parties to the 1986 bankruptcy proce edings that

underlie the preclusion of the Mirannes’ subsequent state court

suit against FSA and Regions. We disagree. Although we do agree

that the Moitie/Carpenter rationale is inapplicable to the Browns,

the district court

—— having prop erly exercised r emoval

jurisdiction as to the Mirannes’ claims against Regions and FSA

——

could therefore exercise supplemental jurisdiction over the

Mirannes’ claims against the Browns. These claims clearly formed

part of the “same case or controversy” as those against Regions and75 See 28 U.S.C. § 1367.

7 6 See Kramer v. Smith Barney , 80 F.3d 1080, 1086 & 1083 n. 1

(5th Cir. 1996) (observing that if plaintiff’s state law fiduciary

duty claims relating to ERISA gov erned pension accounts were

removable under complete preemption theory, plaintiff’s other

related, non-ERISA, state law claims were removable as supplemental

claims under § 1367).

32 FSA. 75 Indeed, we have so found in a similar case involving the

complete preemption branch of the artful pleading exception. 76

Accordingly, we hold that the district court did not err in

asserting jurisdiction over each defendant named in the Mirannes’

state court complaint, including the Browns. Neither did that

court err in refusing to remand any of those claims to state court.

G. Motions for Summary Judgment

In the foregoing analysis, we deter mined that the Mirannes’

removed state court suit, “artfully” styled as an action to enforce

the second mortgage, was in truth nothing but a transparent,

“second bite” collate ral attack on the bankruptcy court’s 1986

orders. It was a blatant attempt at a “gotcha,” grounded

exclus ively in the purely fortuitous and inadvertent failure of

some person or persons unknown to follow-up on the court ordered

cancellation of the second mortgage from the public records. As a

result, we concluded that the well-pleaded complaint doctrine did

not immunize that second suit from removal.

In like manner, we now hold that the district court properly

granted summary judgment in favor of Regions and FSA on the basis

of claim preclusion. Despite its intentionally deceitful garb, the

core issu e of the Mirannes’ subsequent state court complaint was7 7 See Louisiana Nat. Bank of Baton Rouge v. O’Brien

, 439 So.2d

552, 556-58 (La. Ct. App. 1st Cir. 1983 ), writ denied , 443 So.2d

590 (La. 1983) (holding that note marked “in rem” gave maker no

liability at all beyond property itself and that creditor was

unable to maintain any action against maker to reach any of maker’s

other assets).

33 the efficacy of the final, executory, non-appealable orders of the

bankruptcy court that had freed the leas ed premises from, inter

alia, the Mirannes’ second mortgage. As that issue was and remains

res judicata, we affirm the district court’s summary judgment in

favor of Regions and FSA.

We also affirm the district court’s grant of summary judgment

in favor of the Browns albeit we do so on the separate and

independent ground that the Mirannes failed to establish any legal

basis or triable issue of fact to support a claim against the

Browns. As the district court observed, the Mirannes first

acknowledged that the Browns did not participat e in the prior

bankruptcy proceedings, thereby casting doubt on whether the Browns

could be held responsible for the Mirannes’ loss of rights as a

result of tho se proceedings. In addition, the Mirannes also

characterized their action as one in rem

, i.e., a claim to a right

in the property, not one in personam against its former owners,

thus precluding any per sonal liability on the Browns’ part. 7 7 In

sum, as the Browns had no contractual relationship at all with the

Mirannes and ha d long since ceased to have any interest in the

property which the Mirannes doggedly contend is still encumbered by

their second mortgage, the Browns can have no personal liability to

the Mirannes whatsoever. The district court properly granted the7 8 Carpenter v. Wichita Falls Independent School Dist.

, 44 F.3d

362 (5th Cir. 1995).

34 Browns’ motion for summary judgment.

III

CONCLUSION

As should now be apparent from the foregoing analysis, we

conclude that the district court correctly held that the Mirannes

are not entitled to have their previously removed state court suit

remanded to state court under the well-pleaded complaint doctrine.

The claim preclusion or res judicata branch of the artful pleading

exception to that doctrine demonstrates beyond cavil that their

state court suit, filed subsequent to the final judgments of the

bankruptcy court on issues of federal law, need not be remanded.

For essentially the same reasons, our de novo review of the

district court’s summary judgment dismissal of the Mirannes’ claims

against Regions and FSA satisfies us that the Mirannes’ subsequent

state court action, as removed to federal district court, is barred

by res judicata. In like manner the court’s exercise of

supplemental jurisdiction over the claims against the Browns, and

its dismissal of those claims, were not erroneous. Therefore, the

district court’s orders and judgment from which the Mirannes appeal

are, in all respects,

AFFIRMED.

My brethren, conscientiously attempting to follow the

guidance of dicta in a Fifth Circuit case 78 and a mys tifying7 9 Federated Dept. Stores, Inc. v. Moitie , 452 U.S. 394, 101

S.Ct. 2424 (1981).

80 The majority argues that the U ltramar decision does not

“purport to constrain Moitie removal to instances in which the

prior federal judgment arose out of a case that a plaintiff himself

had first b rought in federal court.” Maj. Op. at 28 (emphasis in

origi nal). However, U ltramar did involve a plaintiff who had

asserted a prior claim, and the majorit y has cited no case where

Moitie removal has been allowed where the plaintiff had not brought

a prior suit grounded in federal law. The majority implicitly

acknowledges that while it is not “constrain[e d]” from allowing

Moitie removal where the plaintiff has not brought a prior claim,

35 footnote by the Supreme Court, 79 have concluded that the federal

district court possessed remo val jurisdiction over a state court

claim principally seeking foreclosure of a second mortgage. Were

it not for the ambiguities in the two preceding cases, Carpenter

and Moitie , this result would fly in the face of the well-pleaded

complaint limit on removal jurisdiction. I respectfully dissent

because I believe the majority’s unusual result is not compelled by

the authorities. Briefly, M oitie means less than the majority

asserts, and the Carpenter dicta explaining Moitie do not require

the result here reached. I fear that the majority’s result further

confuses an already complex byway of federal jurisdiction.

Without repeating the majority’s anal ysis, I agree in

part with their holding that -- until the Supreme Court clarifies

Moitie

-- Moitie is “better explained as permitting removal of only

those subsequent state court claims that are barred by the res

judicata effect of a prior federal judgment.” Critically, I would

add that the prior judgment should have involved a claim made under

federal law. Ultramar American Limited v. Dwelle , 900 F.2d 1412,

1415 (9th Cir. 1990). 8 0 I would also emphasize that M oitieit is broadening the scope of Moitie removal beyond what has been

allowed in other circuits.

8 1 Compare Tra velers Indemnity Co. v. Sarkisian , 794 F.2d 754

(2d Cir. 1986) (using plaintiff’s choice of forum analysis to apply

Moitie ) and Sullivan v. First Affiliated Securities, Inc.

, 813 F.2d

1368 (9th Cir. 1987) (using res judicata analysis).

8 2 The Supreme Court’s statement in Moitie that “at least some

of the claims had a sufficient character to support removal” should

be interpreted in light of the authority and examples cited in

support of that proposition. 452 U.S. at 397, n.2; 101 S. Ct. at

2427, n.2. After citing Professor Wright’s treatise for the

proposition that federal courts may determine the “real nature” of

a plaintiff’s claim, the Court cited three cases in which courts

did just that. Two were antitrust cases in which plaintiffs had

pleaded antitrust claims under a Sout h Carolina statute and the

South Carolina courts had held that the statute only applied to

conduct in intra state commerce, while the defendants’ challenged

conduct actually involved inter state commerce. See In re: Wiring

Device Antitrust Litigation

, 498 F.Supp. 79, 82-83 (E.D.N.Y. 1980)

and Three J Farms, Inc. v. Alton Boxboard Company

, 1979

-- 1. Trade

Cases. ¶ 62,423 (S.C. 1978), r ev’d on other grounds

, 609 F.2d 112

(4th Cir. 1979), cert. denied

, 44 5 U.S. 911, 100 S. Ct. 1090

(1980). In the third case, the plaintiff filed only state

conspiracy claims, but the district court held that the claims

implicated federal antitrust laws and labor issues governed by the

36 permitted removal only where the claim being removed represented a

plain tiff’s attempt to seek relief in state court by

recharacterizing an “essentially federal ” claim that they had

unsuccessfully pursued first in federal court. M oitie thus is a

species of the artful pleading doctrine, a doctrine that permits a

federal court to pierce the pleadings of a complaint which,

although cloa ked in terms of state law, actually falls within

federal juris diction because of the applicability of federal

principles. M oitie

, 452 U.S. at 398, n.2. While the circuit

courts have split in interpreting Moitie

, 81 this narrow

understanding is accepted by the majority here and the Fifth

Circuit and is well-grounded. 82Labor Managem ent Relations Act. S ee Prospect Dairy, Inc. v.

Dellwood Dairy Co. , 237 F.Supp. 176, 178-79 (N.D.N.Y. 1964).

37 But accepting this ex p lanation of Moitie

, that case

cannot confer federal jurisdiction here, because the plaintiffs

have no “essentially federal” claim to recharacterize. Their claim

rests on purported rights under a second mortgage and on transfers

of property interests that allegedly abrogated those rights. This

is a state law claim. The only federal element that plaintiffs

could have pleaded is an anticipatory defense based upon the prior

bankruptcy proceeding. To fall within footnote 2 of M oitie

, the

subsequent state claim must be “merely the same . . . claim in

disguise.” Salveson v. Western States Bank Card Ass’n. , 731 F.2d

1423, 1427 (9th Cir. 1984) (characterizing lower court’s finding in

Moitie ). The plaintiffs here are not recharacterizing any federal

claim. Instead, the second mortgage they seek to enforce was never

expunged from the local deed records after a bankruptcy court

judgment commanded sale free and clear of all liens and

encumbrances. Moreover, the plaintiffs are suing a successor in

interest to the bankruptcy sale, not simply the original party to

the proceeding in bankruptcy court. Also unlike M oit ie , the

plaintiffs here were not unsuccessful plaintiffs in the prior

b ankruptcy proceeding, but were defendants there. In every

respect, these characteristics represent a more complex procedural

scenario than did the Moitie plaintiff’s copycat pleadings in

federal and then state court.

Given my druthers, I would hold that the instant case is38

distinguishable from a narrow reading of Moitie. I f, however,

Moitie compels the result reached by the majority, then it appears

significantly to have intruded into previously well-settled removal

jurisprudence, whose anchor is the well-pleaded com plaint rule.

Consider this hypothetical: A sues B in federal court on a federal

securities claim and wins a judgment. B then sues A in state court

on a contract claim that was arguably a compulsory counterclaim in

the preceding litigation. Following M oitie as interpreted by

Rivet

, does the federal court have removal jurisdiction? If so,

hasn’t Rivet moved the boundaries of removal jurisdiction far away

from Moitie’ s self-description as an “artful pleading” case?

The majority relies heavily on Judge Garwood’s

description of Moitie in the Carpenter decision. Notwithstanding

Carpenter ’s statement that “we hold that Moitie should apply only

whe re a plaintiff files a state cause of action completely

precluded by a prior federal judgment on a question of federal

law,” 44 F.3d at 370 (emphas is added), C arpenter ’s statement is

more dicta than holding. C arpenter was a very different case from

M oitie. The defendants in C arpenter sought to rely on Moitie to

prevent simultaneous litigation by a plaintiff in federal and state

courts over the same gr ievance. Judge Garwood’s extended,

scholarly discussion of Moitie refused to adopt the proffered broad

i nterpretation of M oitie that arguably would have prevented

parallel litigation. As Judge Garwood put it, “whatever M oitie

does mean, we are confident it does not mean so much.” 44 F.3d at

368. The bulk of C arpenter ’s discussion explains why some circuit8 3 See 44 F.3d at 368-70, n.6, n.12 (disagreeing with the second

circuit decision in Travelers

, supra , n.4)

39 court cases have incorrectly construed Moitie to govern p arallel

litigation. 83 The C arpenter panel was not faced with anything like

a plaintiff whose suit was in fact “completely precluded by a prior

federal judgment on a question of federal law.” This “holding” was

merely a way to distingui sh the cryptic M oitie footnote without

“empty[ing] footnote 2 of all substantive content,” and was surely

not meant to broa den the M oitie decision’s fleeting reference to

the “federal character” of the plaintiff’s claims into a completely

new exception to the well-pleaded complaint rule. S ee id. at 370,

n.11.

In attempting to demonstrate that the factors relied upon

by Judge Garwood in Carpenter to allow remand are not present here,

the majority contends that “in this case we do have a prior federal

judgment, we do have federal preclusion law to apply, and we have

plaintiffs who have not taken any preclusion risks

... but

... are

clearly seeking by collateral attack to avoid the preclusive effect

of a prior federal judgment

... .” Maj. Op. at 29. I would hasten

to add to that list what we also do not have in this case, but was

e ssential in Moitie and obviously present in Carpenter : a

conceivable federal claim that could be asserted by the plaintiff.

The majority essentially holds that a conceivable federal claim is

not necessary for removal

, as long as there is a federal defense of

res judicata based on a federal j udgment. To say that a

plaintiff’s claim can be removed to federal court when he has8 4 The majority’s holding has another unfortunate consequence.

Allowing federal jurisdic tion to turn on whether the plaintiff’s

claims are barred by res judicata allows the defendant two bites at

the apple: if upon the plaintiff’s motion to remand the defendant

loses the res judicata issue and the case is remanded, the

40alleged no conceivable federal claim is true mockery of the wellpleaded complaint rule and the artful pleading doctrine. How can

t he artful pleading doctrine apply if the plaintiff’s claims can

not be recharacterized into an essentially federal claim that has

been omitted by artful pleading? See Ultramar

, 900 F.2d at 1415

(“... recharacterization of purported state-law claims into federal

claims was essential before removal could occur.”).

Moreover, Carpenter expresses a fear of extending federal

court removal jurisdiction that is realized in this case.

Referring to the fact that plaintiff Carpenter could pursue

litigation under theories of both federal and state constitutional

law, Judge Garwood pithily observes, “we cannot say t hat the

failure to make a state claim pendent mak es it federal.” I d. at

369. Here, whether we like it or not, and whether the plaintiffs

proceeded in good faith or not, they have filed a claim that is

based purely and solely on state law. It is not amenable to

recharacterization as an “artful pleading” of a federal claim. In

my view, Carpenter expressly decries th e implication that this

state-law claim must be removed to federal court according to a

broad interpretation of Moitie

.

Any reader who has followed the majority opinion and this

dissent thus far ought to appreci ate that our dispute, while

technical, is not trivial. 8 4 The principles of limited federaldefendant can relitigate the res judicata issue again in state

court. The prior federal determination of the res judicata issue

will not bind the state court, because, by virtue of the federal

court’s resolution of the res judicata issue, the federal court was

not a cou rt of proper jurisdiction. S ee Robert A. Ragazzo,

Reconsidering the Artful Pleading Doctrine

, 44 H ASTINGS L.J. 273, 311

(January 1993).

41 court jurisdiction and the relative clarity of jurisdictional rules

are at issue. Moitie and Carpenter can be read to authorize

removal of this state-law-based case simply because it is subject

to a federal preclusion defense. But to do so, as I have shown,

intrudes on the scope of the well-pleaded complaint rule, expanding

federal removal jurisdiction while engendering complexity and

uncertainty in the future. I do not believe such results were

intended by the Supreme Court in Moitie or by the Carpenter panel;

the best way to effectuate those decisions’ narrowly tailored goals

is to apply them narrowly and specifically. Because the majority

opinion does not do so, I respectfully dissent.