## Facts

- Fawcett Publications, Inc. published an article in *True* magazine alleging conduct by the 1956 University of Oklahoma football team that team members claimed was libelous per se.
- Carl Dodd, an Oklahoma citizen and team member, sued Fawcett and Mid-Continent News Company (the local magazine distributor) in Oklahoma state court for libel.
- Mid-Continent was a Delaware corporation with its principal place of business in Oklahoma City, making it a citizen of Oklahoma for diversity purposes.
- Earlier, similar libel suits by other team members had been filed in state court against the same defendants, and an initial effort to remove those cases failed for lack of complete diversity.
- In a separate, closely related state case involving the same article and distributor, the trial court directed a verdict for Mid-Continent on liability, and the Oklahoma Supreme Court affirmed, holding Mid-Continent could not be liable on the evidentiary showing presented.
- Dodd used the same counsel as in the prior case and represented that he intended to offer substantially the same evidence regarding Mid-Continent’s conduct.
- After the Oklahoma Supreme Court decision, defendants removed Dodd’s case, asserting Mid-Continent was fraudulently joined because state law, as authoritatively declared, foreclosed any viable claim against it.
- The federal district court denied Dodd’s motion to remand and certified the jurisdictional question for interlocutory appeal under 28 U.S.C. § 1292(b).

## Issues

1. Whether Mid-Continent was fraudulently joined such that its non-diverse citizenship could be disregarded for removal and diversity jurisdiction purposes.
2. Whether an intervening state supreme court decision foreclosing liability on materially identical facts can establish fraudulent joinder “in law.”

## Decision

- The Tenth Circuit affirmed the district court’s denial of Dodd’s motion to remand.
- The court held Mid-Continent was fraudulently joined because controlling Oklahoma law, applied to the facts Dodd proposed to prove, left no reasonable basis to predict liability against Mid-Continent.
- Disregarding Mid-Continent’s citizenship, complete diversity existed between Dodd and Fawcett, so the federal court properly retained jurisdiction after removal.

## Legal Principles

- Fraudulent joinder is a jurisdictional inquiry; it does not require proof of actual fraud but turns on whether there is any reasonable basis to predict the plaintiff could establish liability against the non-diverse defendant under state law.
- In assessing fraudulent joinder, a federal court may consider authoritative state-law decisions and the record context, not merely the pleadings.
- When the state’s highest court has already held that a defendant cannot be liable on materially identical facts, and the plaintiff offers no materially different basis for liability, joinder of that defendant is fraudulent as a matter of law.
- A fraudulently joined defendant’s citizenship is disregarded for purposes of determining diversity jurisdiction and the propriety of removal.

## Conclusion

Because controlling Oklahoma precedent foreclosed Mid-Continent’s liability on the evidentiary showing Dodd intended to present, Mid-Continent was fraudulently joined, its citizenship was disregarded, and removal based on diversity jurisdiction was proper.


Dodd v. Fawcett Publ'ns, Inc., 329 F.2d 82 (10th Cir. 1964)