Fraudulent Joinder: Strategies for Removal to Federal Court
But “fraudulent joinder” is a misnomer: It does not—and should not—require the heightened showing of fraud. Indeed, a number of courts have recognized that “improper joinder” is preferred over the term “fraudulent joinder.” See, e.g., Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 571 n.1 (5th Cir. 2004); Advanced Indicator & Mfg., Inc. v. Acadia Ins. Co., 50 F.4th 469, 473 n.1 (5th Cir. 2022).
Instead, recent cases have highlighted how, when faced with improper joinder, defendants may pierce pleadings with extraneous evidence, leverage conclusory allegations, and utilize other methods to effectively remove cases to federal court.
Recognizing the use of improper joinder, knowing the case trends, and harnessing strategies to mitigate against it can be the difference that results in removal to federal court. This article provides strategic guidance to defense attorneys for how to best position a matter for successful removal to federal court when they encounter a case of improper joinder.