A 2-1 panel of the Fifth Circuit today ordered remand of a wrongful death case to state court.  The majority held that the blurriness of Texas’s "unlawful acts rule" precluded a confident conclusion that the plaintiffs couldn’t make out a claim against two non-diverse defendants.  Rico v. Flores, No. 05-41719 (5th Cir. Mar. 8, 2007).

The lawsuit concerns the brutal deaths of 10 men who couldn’t escape a rail car that smugglers locked them into.  The representatives of the men’s estates sued the rail car owner and others, including the non-diverse smugglers.  Defendants removed the case from state court on the ground that the unlawful acts rule barred recovery against the smugglers and that therefore they didn’t count in determining whether diversity of citizenship provided a basis for removal jurisdiction.

Blawgletter infers from Rico v. Flores that an affirmative defense against non-diverse defendants cannot support removal unless the defendants establish clear applicability of the defense.  District courts must resolve any uncertainty in the law against removal.  That sounds right.

Barry Barnett

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