by Shannan Sweeney Rieger

If the terms “removal” and “fraudulent joinder” pique your interest, you will want to familiarize yourself with the recent United States Fifth Circuit Ruling in Boone v. Citigroup, Inc., ___ F.3d ___ (5th Cir. 2005), 2005 WL 1581091 (5th Cir. (Miss.)).

In Boone, the Fifth Circuit explained its holding in its earlier en banc opinion in Smallwood v. Illinois Central Railroad Company, 385 F.3d 568 (5th Cir. 2004) (referred to as “Smallwood II”). Essentially, the Boone panel explained that a defense is considered to be a “common defense” under Smallwood II only when the showing or factual basis that demonstrates the applicability of the defense to the resident defendants, also necessarily demonstrates the applicability of the defense to all of the claims asserted against the non-resident defendants.

The Boone court reminded its readers that under Smallwood II, a removal based upon improper joinder should not be allowed when all of the defendants, both resident and non-resident, have interposed a “common defense.” Further, a defense is considered to be “common” under Smallwood II only when the showing or factual basis that demonstrates the applicability of the defense to the resident defendants also necessarily demonstrates the applicability of the defense to all claims asserted against the non-resident defendants.
Continue Reading Boone – Pathfinding in Smallwood