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, the


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

                                  1
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-Appellees 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 complaint doctrine, we affirm the refusal to

remand the Mirannes’ suit to state 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 estate)3 in a

parcel of immovable property (leased premises) located at the

intersection of Tulane and Carrolton Avenues in New Orleans,

    2
       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 not recognize estates in land. See 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
personam) contract which does not create rights in rem; however,
under provisions of various statutes, both predial (real estate)
and mineral leases are afforded some of the attributes of rights in
rem, notably the protection 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. See

and also La. Rev. Stat. Ann. §§ 2721 & 2754-56
(West 1991).
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 collateral 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 estate, 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, THILP 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,




        4
       The 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
Experience, 

. Rev. 39 (1988), for a discussion of the
collateral mortgage, that unique Louisiana “hybrid security device,
combining the elements of both pledge and mortgage.” 

    6
      One of the holders of the note, Edmond G. Miranne, Jr., also
appears to have been a partner of THILP.

                                                   3
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, expressly

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 bankruptcy 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   second


      7
      At this point, the leasehold estate consisted principally of
the Bayou Plaza Hotel, formerly known as the Fountainbleau Hotel.

                                   4
mortgage held by the Mirannes.             Despite the bankruptcy court’s

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

unexplained 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-interest to the original lessors,

sold the leased premises to Secor, thereby vesting Secor 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   leasehold


     8
       Under Louisiana Civil Code Article 1903, an obligation may
be extinguished by “confusion” when the qualities of obligee and
obligor 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
ownership —— essentially the equivalent of “fee simple” title in
the common law. See Ranson v. Voiran, 

, 682 (La. 1931).

                                      5
estate.         The Mirannes sought (1) to have the second mortgage

recognized and enforced, via ordinaria, against the immovable

property located on the leased premises, or (2) alternatively,

damages.        In their complaint, the Mirannes assiduously avoided any

hint of the previous bankruptcy proceedings and orders affecting

the   leased      premises,   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 judgment asserting, inter alia, claim

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

filed     for    summary   judgment   adopting   Regions   and   FSA’s   claim

preclusion defense and asserting, as a separate and independent

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

action against the Browns.             More or less simultaneously, the

Mirannes sought remand, contending that the bankruptcy court orders

at 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 independent

      9
          

(5th Cir. 1995).

                                        6
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 principles

governing federal question removal jurisdiction.10   The denial of

a motion to remand an action removed from state to federal court

presents a question of federal subject matter jurisdiction and

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

defendant’s use of the removal statute12 deprives a state court of

a case properly before it and thereby implicates concerns 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.15


     10
          See 

    11
       Garrett v. Commonwealth Mortgage Corp. of America, 

, 593 (5th Cir. 1991).
     12
          28 U.S.C. § 1441.
     13
          

.
     14
          

     15
          See 28 U.S.C. § 1441(a).

                                     7
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.”16                 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 claim, 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 complaint


     16
          28 U.S.C. §§ 1331 & 1441(b).
    17
       

(citing Louisville & Nashville R.
Co. v. Motley, 

, 

, 

(1908).
     18
        

(citing Franchise Tax Board v.
Construction Laborers Vacation Trust, 

, 12, 

, 2848, 

(1983)) (emphasis added).
     19
          

.
     20
       Gully v. First Nat’l Bank, 

, 112, 

,
97, 

(1936).

                                        8
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 which a plaintiff’s

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

i.e.,     when   the   “pre-emptive       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 preempted


     21
          

.
          22
           

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 plaintiff’s well-pleaded complaint would not
otherwise allow 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. See Dodson
v. Spillada Maritime Corp., 

, 42 (5th Cir. 1992);
Carriere v. Sears Roebuck and Co., 

, 100 (5th Cir.
1990). The parallel between the fraudulent joinder exception and
the artful pleading exception should be obvious.
    23
       Caterpillar, Inc. v. Williams, 

, 393, 

, 

(1987) (quoting Metropolitan Life Ins. Co. v.
Taylor, 

, 65, 

, 

(1987)).

                                      9
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 Department Stores v.

Moitie25 —— claim preclusion or res judicata.               In Moitie, 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        properly   removed   to   federal   court   because   they   raised

‘essentially federal law’ claims,” then dismissed the claims on res




             24
         See Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n. of
Machinists, 

, 559, 

, 1237, 

(1968) (§ 302 of LMRA); Metropolitan 

(§ 502
of ERISA).
     25
              

, 

, 

(1981).
        26
        Six of the plaintiffs 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. 

                                         10
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   in   pertinent

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

Brown and Moitie, appealed the district 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 assertion of removal jurisdiction

and denial of remand.28     The Supreme Court then granted certiorari

to consider, specifically, the preclusion 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 “federal

     27
          

     28
          

     29
        

(“We granted certiorari . . . to consider the
validity of the Court of Appeals’ novel exception to the doctrine
of res judicata.”).

                                      11
     in nature.” We agree that at least some of the claims
     had a sufficient federal 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 commentator

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,31 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 Travelers Indemnity Co. v.

     30
          

n. 2 (emphasis added).
      31
         See Magic Chef, Inc. v. Int’l Molders & Allied Workers
Union, 

, 776 n. 4 (E.D. Tenn. 1983 (claiming that
Moitie’s value as authority regarding removal jurisdiction was
superseded by the Supreme Court’s opinion in Franchise 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
Sarkisian,32 in which the Second Circuit interpreted Moitie 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 Second Circuit’s “election of forums”

rationale would lead to an unwarranted and excessive expansion of

federal removal jurisdiction, the Ninth Circuit, in Sullivan v.

First Affiliated Securities, Inc.,34 concluded that 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.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 claims


    32
      

, 760-61 (2nd Cir.), cert. denied, 

,

, 

(1986).
     33
          See Ragazzo, 44 Hastings L.J. at 307-308.
     34
        

, 1374-75 (9th Cir.), cert denied, 

, 

, 

(1987) (critiquing the election
of forums rationale as applied in Sarkisian and as discussed in
dicta of an earlier Ninth Circuit decision, Salveson v. Western
States Bankcard Ass’n, 

(9th Cir. 1984)).
     35
        

(“We therefore construe Moitie as limited to
removal of state claims precluded by the res judicata effect of a
federal judgment.”).

                                          13
already resolved by a prior federal judgment.”36               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 Sullivan and

Moitie.37

       In Carpenter v. Wichita Falls Ind. School District,38 a panel

of this court squarely confronted the same interpretive issue




       36
        Ethridge v. Harbor House Restaurant, 

, 1403
(9th Cir. 1988); see also Clinton v. Acequi, Inc., 

, 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 attempt to
circumvent the res judicata effect of a prior federal claim that
has been reduced to judgment”).
        37
         See e.g., Ultramar American Limited v. Dwelle, 

, 1415 (9th Cir. 1990) (acknowledging that Sullivan recognized
a new basis for invoking the artful pleading doctrine but noting
that recharacterization of a state 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. Allied-
Signal, Inc., 

, 912 (7th Cir. 1993) (recognizing
Ultramar distinction but also finding that removal was improper
because no res judicata was present); 

(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., 

, 480 (9th Cir.
1990) (applying Sullivan rule but holding that removal was improper
because plaintiff’s claim had never previously been before a
federal court and no res judicata defense was available to
defendants).
       38
            

(5th Cir. 1995).

                                     14
presented to the Ninth Circuit by Sullivan.39                     Explicitly rejecting

the Second Circuit’s expansive election of forums approach and

agreeing with the Ninth Circuit’s “narrower interpretation,”40 we

concluded          in    Carpenter       that   the    “federal    character”        of   the

plaintiffs’ claims justifying removal in Moitie 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 federal 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,43   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 had

     39
       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 state contract claim and a free speech
claim exclusively under the Texas 

.
Similarly, Sullivan involved a federal action under federal
securities law and another similar and simultaneous action in state
court under state securities 

.
     40
             Carpenter, 

n. 6, 370 n. 12.
     41
             

     42
             

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
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 co-

extensive       nature   of   the   relitigation   exception   to   the   Anti-

Injunction 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 Moitie] 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

judicata 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 just

     44
          

(emphasis added).

                                        16
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 court’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 or 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

parties 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.




    46
         United States v. Shanbaum, 

, 310 (5th Cir. 1994).

                                        17
          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 attorney-

at-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   closely     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 court complaint listed only the

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

was       presumptively       community     property    under    Louisiana      law.49

Consequently, the husbands’ participation in the 1986 bankruptcy


          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. See La. Civ. Code art.
100.
          48
                Eubanks v. F.D.I.C., 

, 170 (5th Cir. 1992).
           49
        See 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
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 the 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 to


     50
      Under Louisiana’s community property laws, the rule of equal
management generally applies to community property; however, the
concurrence of both spouses is required 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, 

. Rev. at 44.
     51
      Meza v. General Battery Corp., 

, 1266 (5th Cir.
1990); Howell Hydrocarbons, Inc. v. Adams, 

, 188 (5th
Cir. 1990).

                                   19
defendants Regions and FSA.52

      2. A Court of Competent Jurisdiction and A Final Judgment

      The second and third claim preclusion elements are also

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

courts have 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

jurisdiction 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   liens,   expressly

including      the    second    mortgage     held   by     the   Mirannes,    and

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

specified inferior encumbrances.

     52
      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. See infra
Part E.
      53
           28 U.S.C. § 1334(a),(b).
      54
       Southmark Properties v. Charles House Corp., 

,
870 (5th Cir. 1984); In re Heine, 

, 187 (Bank. D.S.D.
1992); see also Matter of Baudoin, 

, 740 (5th Cir.
1983) (recognizing wide reach of jurisdiction under Title 11).
      55
           28 U.S.C. § 157(a),(b)(2)(N); 

.

                                        20
     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   Mirannes’

authority for this proposition does not comport with Congress’

jurisdictional grant to the district court —— and its adjunct, the

bankruptcy court —— to determine whether property of a debtor

should be sold free and clear of liens and encumbrances.                     The

Mirannes,       of   course,   were   entitled   to    question    whether   the

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 claim preclusion purposes, the bankruptcy

court lacked jurisdiction to issue the 1986 sale orders.

     In addition, an order by a bankruptcy court authorizing or

approving 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.57

        56
        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 

; Hendrick v. Avent, 

, 586 (5th Cir.), cert. denied, 

, 

,

(1990); Southmark 

.

                                          21
Therefore, there can be no serious question that the bankruptcy

court’s 1986 orders authorizing and approving the sale of the

leasehold estate free and clear of essentially all liens and

encumbrances    were   final     judgments    capable    of    precluding     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 claim 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

1986 orders authorizing and approving the sale of the leasehold

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

Mirannes’ claims 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” contending


     58
       Matter of 

; Southmark 

-71.
     59
          Matter of 

.

                                      22
that their putative state cause of action arises solely out of the

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

Mirannes 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 bankruptcy 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.

     Without an extant enforceable mortgage, the Mirannes cannot

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 one


                                 23
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 inapposite 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 ——




    60
      See Southmark 

-72 (debtor’s later
filed lender liability action barred by bankruptcy court’s order
authorizing sale of property in debtor’s estate “free and clear of
all . . . claims” to secured creditor as both involved “common
nucleus of operative facts”); 

(trustee’s
actions under RICO and securities laws barred by bankruptcy court’s
sale order authorizing transfer of title of stock against which
trustee had launched his collateral action).
     61
          

(5th Cir. 1989).

                                           24
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’ previously 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 exception 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 Carpenter we reasoned that, as the relitigation

exception        to    the   Anti-Injunction      Act    had   “already   realigned

federal-state relations in favor of the                 federal courts,” Moitie’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.”64                  Thus two lessons

are to be gleaned from Carpenter: (1) Issues of federalism are not

          62
         In D-1 Enterprises, we found that the lender liability
claims that debtor sought to assert in the later 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.

    Furthermore, D-1 Enterprises also distinguished
Southmark in which preclusion was appropriate in the context of a
“court-ordered public cash auction.” 

supra Part B, 

.
     64
           

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

squelching 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    judicata         interpretation           of    Moitie,   the    Mirannes

imaginatively          contend      that   the       court    in   Carpenter       implicitly

incorporated the specific restraints of the relitigation exception

into its res judicata artful pleading exception based on Moitie.

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 Chick 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,

      65
           

, 

, 

(1988).

                                                26
much less impose, an “actually litigated” standard for removal

under the res judicata branch of the artful 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 Chick 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 strict and narrow. The court assessed
     the precise state of the record and what the earlier
     federal order actually said; it did 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’s


     66
          

, 286-287, 

, 

(1970).
     67
          Chick Kam 

(emphasis in original).

                                        27
foreclosure on the superior first mortgage. Indeed, the bankruptcy

court’s order authorizing sale of the leasehold estate “actually

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 heard, 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 Chick 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 essential holding that Moitie 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 removal avenue to cases in

which (1) “the prior judgment . . . involved a claim made under

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

plaintiff’s       attempt     to      seek      relief      in   state   court     by

recharacterizing an ‘essentially federal’ claim they [sic] had

unsuccessfully pursued first in federal court.”69                    We acknowledge

     68
          

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

                                           28
the   overarching    federalism   concerns       that   inform   Judge   Jones’

critique,     but   we   nevertheless   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

recharacterization (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 circumstance in which Moitie removal will occur.                     But

Moitie’s sanctioning of removal, as we explained in Carpenter72 and

as the Ninth Circuit has suggested,73 hinges on the preclusive

      70
           

(9th Cir. 1990).
      71
           

(emphasis added).
      

(“If there was any federal character at all
to the plaintiffs’ state law claims in Moitie, it must be the
federal law of preclusion.”)
      73
       In Ultramar, the Ninth Circuit observed that:
     The Moitie doctrine seems based on a court divining a
     litigant’s motives 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 that 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 

(emphasis added).

                                       29
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 giving 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   Moitie,   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 bankruptcy 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 their

      74
           

.

                                     30
second 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 jurisdiction 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 could 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 proceedings 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     properly     exercised     removal

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 and

                                         31
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 determined 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” collateral attack on the bankruptcy court’s 1986

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

exclusively 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 issue of the Mirannes’ subsequent state court complaint was


     75
          See 28 U.S.C. § 1367.
     76
       See Kramer v. Smith Barney, 

, 1086 & 1083 n. 1
(5th Cir. 1996) (observing that if plaintiff’s state law fiduciary
duty claims relating to ERISA governed 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
the efficacy of the final, executory, non-appealable orders of the

bankruptcy court that had freed the leased 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 participate 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 those 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 personal liability on the Browns’ part.77           In

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

Mirannes and had 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 the


    77
      See Louisiana Nat. Bank of Baton Rouge v. O’Brien, 

, 556-58 (La. Ct. App. 1st Cir. 1983), writ denied, 

(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
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 case78 and a mystifying


     78
      Carpenter v. Wichita Falls Independent School Dist., 

(5th Cir. 1995).

                                    34
footnote by the Supreme Court,79 have concluded that the federal

district court possessed removal 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, Moitie 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 analysis, 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, 

,

1415 (9th    Cir.   1990).80   I   would   also   emphasize   that   Moitie

     79
       Federated Dept. Stores, Inc. v. Moitie, 

, 

(1981).
      80
        The majority argues that the Ultramar 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 brought in federal court.” Maj. Op. at 28 (emphasis in
original).   However, Ultramar did involve a plaintiff who had
asserted a prior claim, and the majority 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[ed]” from allowing
Moitie removal where the plaintiff has not brought a prior claim,

                                    35
permitted removal only where the claim being removed represented a

plaintiff’s      attempt   to    seek      relief    in       state    court   by

recharacterizing an “essentially federal” claim that they had

unsuccessfully pursued first in federal court.                 Moitie 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 cloaked in terms of state law, actually falls within

federal   jurisdiction     because    of   the   applicability        of   federal

principles.      

, 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.82


it is broadening the scope of Moitie removal beyond what has been
allowed in other circuits.
     81
       Compare Travelers Indemnity Co. v. Sarkisian, 

(2d Cir. 1986) (using plaintiff’s choice of forum analysis to apply
Moitie) and Sullivan v. First Affiliated Securities, Inc., 

(9th Cir. 1987) (using res judicata analysis).
     82
      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 

, 

, 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 South Carolina statute and the
South Carolina courts had held that the statute only applied to
conduct in intrastate commerce, while the defendants’ challenged
conduct actually involved interstate commerce. See In re: Wiring
Device Antitrust Litigation, 

, 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), rev’d on other grounds, 

(4th Cir. 1979), cert. denied, 

, 

(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
           But accepting this explanation 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 Moitie, the

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

disguise.”    Salveson v. Western States Bank Card Ass’n., 

, 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 Moitie, the

plaintiffs here were not unsuccessful plaintiffs in the prior

bankruptcy    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 is



Labor Management Relations Act.     See Prospect Dairy, Inc. v.
Dellwood Dairy Co., 

, 178-79 (N.D.N.Y. 1964).

                                       37
distinguishable from a narrow reading of Moitie.                         If, 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 complaint 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 Moitie 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

where    a    plaintiff      files     a   state    cause    of   action     completely

precluded by a prior federal judgment on a question of federal

(emphasis added), Carpenter’s statement is

more dicta than holding.             Carpenter was a very different case from

Moitie.       The defendants in Carpenter sought to rely on Moitie to

prevent simultaneous litigation by a plaintiff in federal and state

courts       over    the    same    grievance.       Judge    Garwood’s       extended,

scholarly discussion of Moitie refused to adopt the proffered broad

interpretation         of    Moitie    that    arguably      would    have    prevented

parallel litigation.               As Judge Garwood put it, “whatever Moitie

does mean, we are confident it does not mean so 

.    The bulk of Carpenter’s discussion explains why some circuit


                                             38
court cases have incorrectly construed Moitie to govern parallel

litigation.83     The Carpenter 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 distinguish the cryptic Moitie footnote without

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

not meant to broaden the Moitie decision’s fleeting reference to

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

new exception to the well-pleaded complaint rule.                See 

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

essential    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     judgment.        To   say   that   a

plaintiff’s claim can be removed to federal court when he has


      83
     

, n.6, n.12 (disagreeing with the second
circuit decision in Travelers, supra, n.4)

                                        39
alleged no conceivable federal claim is true mockery of the well-

pleaded complaint rule and the artful pleading doctrine.                      How can

the 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 

(“... 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 that the

failure to make a state claim pendent makes it federal.”                      

   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 the 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 appreciate that our dispute, while

technical, is not trivial.84              The principles of limited federal

       84
      The majority’s holding has another unfortunate consequence.
Allowing federal jurisdiction 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

                                           40
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.




defendant 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 court of proper jurisdiction. See Robert A. Ragazzo,
Reconsidering the Artful Pleading Doctrine, 44 HASTINGS L.J. 273, 311
(January 1993).

                                 41