IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                          ________________

                            No. 01-60337
                          ________________




     JOE ELLIS RILEY

                                     Plaintiff - Appellant

           v.

     F A RICHARD & ASSOCIATES INC; INGALLS SHIPBUILDING;
     AND ALEXIS HYLAND, An Individual


                                     Defendants - Appellees

_________________________________________________________________

           Appeal from the United States District Court
             for the Southern District of Mississippi
_________________________________________________________________
                          August 1, 2002

Before KING, Chief Judge, and REAVLEY and WIENER, Circuit Judges.

PER CURIAM:*

     Plaintiff–Appellant Joe Ellis Riley asserted various state

law claims against Defendants–Appellees in Mississippi state

court.   Defendants–Appellees removed the case to federal district

court.   Riley filed a motion to remand the case, and


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
Defendants–Appellees filed a motion to dismiss Riley’s claims.

The district court granted Defendants–Appellees’ motion and

dismissed all of Riley’s claims with prejudice.    The court denied

Riley’s motion to remand as moot.     Riley appeals the dismissal of

his claims.   Because we find no basis for federal removal

jurisdiction, we VACATE the district court’s dismissal of Riley’s

claims and REMAND the case to the district court with

instructions to remand the case to state court.

                I.   Factual and Procedural History

     In October 1997, Plaintiff–Appellant Joe Ellis Riley

sustained injuries to his left foot and ankle in an industrial

accident while employed by Defendant–Appellee Ingalls

Shipbuilding, Inc. (“Ingalls”).    Pursuant to the Longshore and

Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901, et

seq. (1994), Ingalls, as Riley’s employer, and Defendant–Appellee

F.A. Richard & Associates, Inc. (“F.A. Richard”), as Ingalls’s

self-insured administrator, provided some compensation and

medical coverage for the injuries to Riley’s foot and ankle.    Dr.

Chris E. Wiggins, a physician with the Mississippi Coast

Orthopaedic Group, P.A. (the “Orthopaedic Group”), treated Riley

for his injuries.    During the course of Riley’s treatment, Dr.

Wiggins diagnosed Riley with congenital spondylolisthesis at the

L-4 vertebrae of the lumbar spine.    In April 1999, Dr. Wiggins

concluded that Riley’s increasing back pain was reasonably



                                  2
related to the October 1997 industrial accident, rather than the

congenital spondylolisthesis.

     Riley asserts that in June 1999, Alexis Hyland, an employee

and agent of F.A. Richard, posed as Riley’s medical case manager,

and that Hyland, while purporting to assist Riley in obtaining

appropriate medical care, engaged in ex parte communications with

Dr. Wiggins.     According to Riley, these communications caused Dr.

Wiggins to reverse his opinion regarding the nature and causation

of Riley’s back condition.    After contact with Hyland, Dr.

Wiggins concluded that a natural progression of Riley’s

congenital spondylolisthesis caused Riley’s back pain rather than

the accident.1

     In June 2000, Riley filed suit in Mississippi state court

against Ingalls, F.A. Richard, and Alexis Hyland in her capacity

as an agent for F.A. Richard.    Riley alleged that Ingalls and

F.A. Richard established a close working relationship with the

Orthopaedic Group, where numerous injured Ingalls employees are

sent for treatment.    According to Riley, this close relationship

allows Ingalls and F.A. Richard to exert inappropriate influence

over the Orthopaedic Group’s physicians so as to interfere with

the medical treatment of injured Ingalls employees.


     1
        Riley asserts that Dr. Wiggins has since “re-reversed”
his opinion regarding the causation of Riley’s back pain.
However, as Riley correctly notes, evidence of this re-reversal
is not part of the record in this action, and we need not
consider it.

                                   3
Specifically, Riley asserts the following nine state law claims:

(1) intentional interference with contract, (2) breach of

fiduciary duty, (3) intentional interference with prospective

advantage, (4) medical malpractice (against Hyland, a registered

nurse), (5) fraud and misrepresentation, (6) negligence,

(7) intentional infliction of emotional distress, (8) intentional

interference with medical care and/or breach of confidentiality

of doctor/patient privilege, and (9) intentional interference

with medical care by ex parte communication.   Riley’s complaint

claims $82,673.18 in special damages in compensation for his

claim for permanent disability under the LHWCA, $500,000 in total

actual damages, and $25,000,000 in punitive damages.2

     In July 2000, Ingalls, F.A. Richard, and Hyland

(collectively, the “Defendants”) removed the case to federal

district court on the ground that Ingalls, the only non-diverse

defendant, was fraudulently joined to defeat diversity

jurisdiction.   Riley filed a motion to remand in August 2000.   In

September 2000, the Defendants filed a motion to dismiss

asserting that: (1) because the LHWCA provides the exclusive

remedy for Riley’s claims, the Defendants are immune from suit in

tort and Riley’s state law claims are preempted by the LHWCA; (2)

Riley failed to exhaust the administrative remedies provided by


     2
        Riley has since indicated, both to this court and to the
district court, that his claim for special damages has
“evaporated” and that he is no longer pursuing those damages.

                                 4
the LHWCA as required; and (3) the Defendants did not violate the

patient/physician privilege because this case is governed by

federal law, and federal common law does not recognize such a

privilege.

     At a hearing before the district court on Riley’s motion to

remand on March 21, 2001, the parties presented their arguments

relating to the propriety of removal.      The district court

ultimately concluded that “this suit shall be dismissed for lack

of subject matter jurisdiction.”       The court appears to have based

this conclusion on its belief that the LHWCA provides the

exclusive remedy for Riley.   The district court then denied

Riley’s motion to remand as moot.      Riley timely appealed the

district court’s final judgment dismissing the case with

prejudice.

                           II.   Analysis

     A.   The District Court’s Ruling

     Riley’s primary argument on appeal is that the district

court erred by failing to remand the case to state court.       We

review de novo the district court’s denial of Riley’s motion to

remand.   See Rodriguez v. Sabatino, 

, 591 (5th Cir.

1997).3

     3
        Generally, a district court’s denial of a motion to
remand is not appealable because it is not a final order. Aaron
v. Nat’l Fire Ins. Co. of Pittsburgh, 

, 1160 (5th
Cir. 1989). However, when the denial of the motion to remand is
coupled with a final order, we have jurisdiction to review the
denial of remand. 

case, the district court

                                   5
       When faced with a motion to remand, a federal court must

first determine whether it may properly exercise removal

jurisdiction before ruling on a motion to dismiss the plaintiff’s

complaint.     14C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE

AND   PROCEDURE § 3739, at 419-23 (1998).     Defendants have a limited

right, set forth in 28 U.S.C. § 1441(b) (1994), to remove cases

from state court to federal court as follows:

             Any civil action of which the district courts
             have original jurisdiction founded on a claim
             or right arising under the Constitution,
             treaties or laws of the United States shall
             be removable without regard to the
             citizenship or residence of the parties. Any
             other such action shall be removable only if
             none of the parties in interest properly
             joined and served as defendants is a citizen
             of the State in which such action is brought.

Thus, removal jurisdiction can be premised on either the

existence of a federal question or diversity of the parties.             The

removing party bears the burden of establishing removal

jurisdiction.     Dodson v. Spiliada Maritime Corp., 

, 42

(5th Cir. 1992).      In this case, the Defendants’ notice of removal

asserts diversity jurisdiction (based on the fraudulent joinder

of Ingalls) and does not mention the existence of a federal

question.     Riley argues that, even though the issue of federal

question jurisdiction was never before the district court, the


simultaneously denied Riley’s motion to remand and granted the
Defendants’ motion to dismiss. Because the dismissal constitutes
a final order, we have jurisdiction to review the district
court’s denial of remand. See 

improperly considered federal question jurisdiction at the

March 2001 hearing.

     Although the district court denied Riley’s motion to remand

as moot, a review of the transcript of the March 2001 hearing

suggests that the court may have concluded that it had removal

jurisdiction before dismissing the case.4   However, the

transcript does not reveal whether the district court based its

exercise of removal jurisdiction on the presence of a federal

question or on diversity of the properly joined parties.    We need

not determine the basis of the district court’s ruling because we

conclude that the district court lacked both federal question

jurisdiction and diversity jurisdiction over this case.    Thus,

the district court erred in denying Riley’s motion to remand the

case to state court.

     B.   Lack of Federal Question Jurisdiction

     A defendant may remove a case to federal court based on the

presence of a federal question when a plaintiff asserts “a claim

or right arising under the Constitution, treaties or laws of the

United States.”   28 U.S.C. § 1441(b).   Generally, we resolve

issues of federal question jurisdiction by applying the “well-

pleaded complaint rule.”   Hart v. Bayer Corp., 

, 243


     4
        Even if the district court did not properly consider
Riley’s motion to remand, for the purpose of this appeal, we give
the district court the benefit of the doubt and assume that the
court found a basis for removal jurisdiction before dismissing
Riley’s claims.

                                 7
(5th Cir. 2000).   According to the well-pleaded complaint rule,

if a plaintiff’s complaint raises no issue of federal law,

federal question jurisdiction is lacking, and removal is

improper.   

  Thus, ordinarily, “[t]he fact that a

federal defense may be raised to the plaintiff’s action – even if

both sides concede that the only real question at issue is

created by a federal defense – will not suffice to create federal

question jurisdiction.”     Aaron v. Nat’l Fire Ins. Co. of

Pittsburgh, 

, 1161 (5th Cir. 1989).    However, there

are exceptions to the well-pleaded complaint rule.    For example,

in Avco Corp. v. Aero Lodge No. 735, 

(1968), the

Supreme Court held that, even if the plaintiff’s complaint

asserts only state law claims, removal jurisdiction is proper if

federal law “so completely preempt[s] a field of state law that

the plaintiff’s complaint must be recharacterized as stating a

federal cause of action.”     

(discussing

the Avco exception to the well-pleaded complaint rule).       Thus, a

defense based on federal law creates federal question

jurisdiction where the plaintiff’s state law claims are

completely preempted by federal law.     See 

case, the district court may have asserted removal

jurisdiction based on the Defendants’ federal law defense that

the LHWCA provides the exclusive remedy for Riley.    Riley

correctly argues that the exercise of removal jurisdiction on



                                   8
this basis is improper.   Section 905(a) of the LHWCA provides, in

part, that:

          The liability of an employer prescribed in
          section 904 of [the LHWCA] shall be exclusive
          and in place of all other liability of such
          employer to the employee . . . at law or in
          admiralty on account of such injury or death
          . . . .

33 U.S.C. § 905(a).    In Aaron, this court considered whether

federal question jurisdiction may arise where a defendant asserts

that § 905(a) of the LHWCA bars a plaintiff’s state law 

.   After thorough analysis of Supreme Court

precedent, this court concluded in Aaron that, because the LHWCA

does not completely preempt state law claims, “[t]he LHWCA is, in

this case, nothing more than a statutory defense to a state-court

cause of action – the classic circumstance of non-removability.”

  Thus, according to the clear rule of Aaron, the

Defendants’ LHWCA defense to Riley’s state law claims is

insufficient to create federal question jurisdiction.     Id.; see

also Garcia v. Amfels, Inc., 

, 588 (5th Cir. 2001)

(stating that “there is no question that the LHWCA does not

create federal subject matter jurisdiction supporting removal”).

Accordingly, the district court’s exercise of removal

jurisdiction over this case was improper to the extent the court

based its jurisdiction on the presence of a federal question.




                                  9
     C.   Lack of Diversity Jurisdiction

     A defendant may remove a case to federal court based on the

diversity of the parties “only if none of the parties in interest

properly joined and served as defendants is a citizen of the

State in which such action is brought.”    28 U.S.C. § 1441(b).

For the purposes of this jurisdictional inquiry, the citizenship

of a fraudulently joined defendant must be disregarded.    Badon v.

R.J.R. Nabisco Inc., 

, 389 (5th Cir. 2000).    Thus, a

plaintiff cannot keep the case in state court by fraudulently

joining an in-state defendant.

     We assume, as the parties implicitly assume, that Hyland and

F.A. Richard are not residents or citizens of Mississippi.5

Ingalls, as a corporate resident of Mississippi, is the only in-

state defendant, and Ingalls’s presence in this case destroys the

diversity of the Defendants.   The Defendants argue that Riley

fraudulently joined Ingalls and, thus, that the citizenship of

Ingalls should be disregarded for jurisdictional purposes.    The

Defendants maintain that the district court did not err in

exercising diversity jurisdiction over this case.    Riley counters

that the district court lacked diversity jurisdiction over this

case because Ingalls is not fraudulently joined.

     5
        Hyland is a citizen and resident of Alabama. The
Defendants assert that F.A. Richard is a corporate resident of
Louisiana. Although Riley argued before the district court that
F.A. Richard was a non-diverse party because of its “very
substantial business activity in Mississippi,” Riley does not
raise this argument on appeal, and it is, therefore, abandoned.

                                 10
     “The burden of persuasion placed upon those who cry

‘fraudulent joinder’ is indeed a heavy one.”    

(internal citations and quotations omitted).   To establish

fraudulent joinder of a non-diverse defendant, the removing party

must show that there is no possibility that the plaintiff would

be able to establish a claim against the non-diverse defendant in

state court.   In re Rodriguez, 

, 469 (5th Cir. 1996).6

In making this determination, a court must resolve all disputed

questions of fact and all ambiguities in the law in favor of the

non-removing party.   

the district court, or

this court on review, should conclude there is no federal

jurisdiction and remand the case to the state court if either

federal court cannot predict with absolute certainty that [the

state] court would summarily dismiss the causes of action

asserted against [the] defendant . . . .”    

in original) (internal citations and quotations omitted).    In

order to avoid “pretrying a case to determine removal

jurisdiction,” fraudulent joinder claims are generally resolved

by “piercing the pleadings and considering summary judgment-type

evidence such as affidavits and deposition testimony.”     

-47 (internal citations and quotations omitted).

However, because the record in this case does not include such

     6
         An allegation of fraudulent joinder may also be based
on outright fraud in the plaintiff’s pleading of jurisdictional
facts. In re 

. The Defendants do not
assert this ground for fraudulent joinder.

                                 11
evidence, we are limited to a review of the allegations in the

complaint in determining whether any possibility exists for Riley

to establish a claim against Ingalls in state court.     

     As noted above, § 905(a) of the LHWCA provides that:

          The liability of an employer prescribed in
          section 904 of [the LHWCA] shall be exclusive
          and in place of all other liability of such
          employer to the employee . . . at law or in
          admiralty on account of such injury or death
          . . . .

33 U.S.C. § 905(a).   Pointing to the language of § 905(a), the

Defendants argue that, because the LHWCA provides the exclusive

remedy for Riley’s claims against Ingalls, there is no

possibility that Riley could establish a claim against Ingalls in

state court.   In support of their argument, the Defendants rely

heavily on this court’s decision in Atkinson v. Gates, McDonald &

Co., 

(5th Cir. 1988).   In Atkinson, this court

affirmed a district court’s dismissal of a plaintiff’s state law

claims asserted against her previous employer for that employer’s

termination of the plaintiff’s LHWCA-based benefits.     

This court stated that “the LHWCA is plainly preemptive of any

state law claim for intentional or bad faith wrongful refusal to

pay benefits due under the [LHWCA], and this is true even in the

absence of any expressly preemptive language.”   

  Even

though the plaintiff in that case was no longer employed by the

defendant, the Atkinson court noted that the plaintiff’s claim

“necessarily presupposes an obligation to pay LHWCA benefits, and


                                12
hence necessarily arises out of her on-the-job injury.”      

       The plaintiff in Atkinson argued that an LHWCA-exclusivity

rationale “is defective because it inevitably leads to the

conclusion that there could be no common-law tort claim against

an insurance company if, for example, its employee, in the course

of investigating the plaintiff’s claim for LHWCA compensation

benefits, were to illegally enter plaintiff’s residence to get

needed evidence.”     

  This court rejected this argument

by explaining the scope of the LHWCA’s preemption:

            [T]he obvious difference between the
            example[] posed by [plaintiff] . . ., and the
            case of bad faith refusal to pay compensation
            benefits, is that in the former class of case
            plaintiff’s entitlement to recover in the
            tort action is in no way dependent on [her]
            having been entitled to compensation benefits
            or to the defendant’s having violated the
            compensation statute. By contrast, in order
            to recover for bad faith or malicious failure
            to pay compensation benefits[,] there must
            have been an entitlement to such benefits or
            a violation of the compensation statute in
            the failure to pay them.

instant case, Riley argues that, because his state

law claims are not dependent on his entitlement to compensation

benefits, they fall within the former category described by the

Atkinson court and are not preempted by the LHWCA.     Riley does

not allege that the Defendants violated the LHWCA or failed to

pay LHWCA benefits.    Rather, the essence of Riley’s complaint is


                                    13
that the close relationship between the Defendants and the

Orthopaedic Group, along with the Defendants’ ex parte

communications with Riley’s physician, improperly interfered with

Riley’s medical treatment.     According to Riley, the fact that his

claims are asserted against his employer and his employer’s self-

insured administrator is a mere coincidence.7    Thus, Riley argues

that he, like the injured person in the Atkinson plaintiff’s

hypothetical, has an “entitlement to recover in the tort action”

that is “in no way dependent on his having been entitled to

compensation benefits or to the defendant’s having violated the

compensation statute.”   

has never determined whether state law claims

alleging tortious conduct arguably unconnected with an

entitlement to LHWCA benefits fall within the scope of LHWCA

preemption, and we need not do so here.    In the context of the

fraudulent joinder inquiry, “[w]e do not decide whether the

plaintiff will actually or even probably prevail on the merits,

but look only for a possibility that he may do so.”     

.   Moreover, we resolve all factual and legal

ambiguities in favor of the non-removing party.     

     7
        In his brief to this court, Riley states that his claim
“is not for wages and it is not for compensation benefits; it is
not for bad faith refusal to pay benefits as in Atkinson; it is
for damages that are completely independent of the
employer/employee relationship.”

                                  14
     As our opinion in Atkinson makes clear, certain claims

brought by an employee against his or her employer independent

from the employee’s entitlement to LHWCA benefits and not based

on an alleged violation of the LHWCA by the employer are not

preempted by the 

.8   Riley’s state law

claims are based on the Defendants’ close relationship with the

Orthopaedic Group and the Defendants’ alleged interference with

Riley’s medical treatment.    At least one of those claims, which

we discuss below, appears to be independent from Riley’s

entitlement to LHWCA benefits.   Thus, our opinion in Atkinson

suggests some possibility that at least one of Riley’s claims is

not preempted by the LHWCA.

     As an example, we consider Riley’s state law claim for

intentional interference with contract.   In support of this

claim, Riley’s petition asserts that “he had a contract for

     8
        The First Circuit’s decision in Martin v. Travelers
Insurance Co., 

(1st Cir. 1974), is consistent with
our reasoning in Atkinson. In Martin, the plaintiff received
compensation, in the form of three drafts, from the insurer of
his former employer pursuant to the LHWCA. 

Two
weeks after the drafts were deposited and substantially drawn
upon by the plaintiff, the insurer stopped payment on the drafts.

sued the insurer for infliction of mental and
emotional suffering because of his “financial embarrassment due
to the fact that he had written checks which had become
worthless.” 

331 n.1. The Martin court held that the
plaintiff was not precluded under the LHWCA from pursuing his
state law claim because the plaintiff’s complaint was not based
on the insurer’s failure to pay LHWCA benefits. 

Rather, the court emphasized that “the crux of the complaint here
is the insurer’s callous stopping of payment without warning when
it should have realized that acute harm might follow.” 

                                 15
provision of medical care services with [Dr. Wiggins] and that

the actions of the [Defendants] constituted an intentional

interference with his contract for receipt of medical attention

and are therefore actionable.”   Under Mississippi law, “[a]n

action for tortious interference with contract ordinarily lies

when a party maliciously interferes with a valid and enforceable

contract, causing one party not to perform and resulting in

injury to the other contracting party.”   Hollywood Cemetery Ass’n

v. Bd. of Mayor and Selectmen of the City of McComb City, 

715, 719 (Miss. 2000).   To establish this tort, Riley must

show: (1) that the actions of the Defendants were intentional and

willful, (2) that the actions were calculated to cause injury to

Riley, (3) that the actions were without right or justifiable

cause on the part of the Defendants, and (4) that Riley suffered

actual injury or loss.   

Riley can demonstrate that he had an

enforceable contract with Dr. Wiggins for medical care, we can

imagine facts which, if proven, would establish tortious

interference with a contract in this case.   Riley may be able to

show that the Defendants intentionally and willfully interfered

with Riley’s medical treatment in order to cause injury to Riley

without right or justifiable cause.   Furthermore, such an

interference raises the possibility of actual damages which are

independent from Riley’s entitlement to LHWCA benefits.    For

example, a mis-diagnosis caused by tortious interference could

                                 16
lead to inadequate medical care.         Inadequate care may precipitate

additional injuries, both physical and mental, which are

unrelated to the original injury suffered on the job.         A mis-

diagnosis also may potentially cause a patient to suffer more

pain than is necessary and to expend extra time and resources in

seeking additional medical care.         Moreover, if Riley can

establish a claim for tortious interference, he may be entitled

to punitive damages in addition to the actual damages caused by

the interference.      In this way, Riley’s claim for tortious

interference with a contract raises the possibility of damages

that are independent from his entitlement to LHWCA benefits and

thus raises the possibility that at least one of Riley’s claims

is not preempted by the LHWCA.9

       Additionally, we cannot find any provisions of the LHWCA

which appear to penalize the kind of conduct alleged here.         As

the Defendants correctly note, § 914 of the LHWCA provides the

exclusive remedy for bad faith wrongful refusal to pay benefits

due under the LHWCA.       See 33 U.S.C. § 914; 

.       However, at least one of Riley’s claims may not be based on

Ingalls’s refusal to pay LHWCA benefits.         The LHWCA also provides

a remedy for employees when an employer knowingly and willfully

makes a false statement or misrepresentation for the purpose of

       9
        We recognize that some of Riley’s other claims may be
preempted, but we need not consider them. The possibility that
one claim is not preempted by the LHWCA is enough to establish a
chance of recovery against Ingalls in state court.

                                    17
reducing, denying, or terminating compensation benefits.      See 33

U.S.C. § 931(c); Atkinson, 838 at 811.     Like § 914, this

provision encompassing false statements and misrepresentations

does not clearly cover the conduct which forms the basis of

Riley’s claims.   Because at least one of Riley’s claims may be

unconnected with compensation benefits, we cannot say that no

possibility exists for Riley to show that any such claim is not

preempted by these LHWCA provisions.

     For these reasons, taking all allegations set forth in

Riley’s complaint as true and resolving all legal ambiguities in

Riley’s favor, we conclude that Riley’s complaint raises the

possibility that Riley could succeed in establishing at least one

claim against Ingalls in state court.    Thus, there is no

fraudulent joinder, and we cannot disregard Ingalls’s citizenship

for the purposes of our jurisdictional inquiry.10    Accordingly,

the district court’s exercise of removal jurisdiction over this

case was improper to the extent the court based its jurisdiction

on the diversity of the parties.     This conclusion, coupled with

our conclusion that federal question jurisdiction is lacking,

leaves no possible basis for removal jurisdiction in this case.


     10
        This conclusion is consistent with our holding in Aaron
that the LHWCA does not create federal question jurisdiction
supporting removal. If the Defendants’ LHWCA defense is
insufficient to raise federal question jurisdiction, such a
defense should not be sufficient to raise diversity jurisdiction
by way of fraudulent joinder. We will not allow the Defendants
to make an end run around the clear rule of Aaron.

                                18
Thus, the district court erred by not remanding the case to state

court.11

                           III.   Conclusion

     For the foregoing reasons, we find no basis for removal

jurisdiction in this case.     Accordingly, we VACATE the district

court’s dismissal of Riley’s claims and REMAND the case to the

district court with instructions to remand the case to state

court.     Costs shall be borne by the Defendants.




     11
        Because we find in Riley’s favor on this issue, we need
not address Riley’s additional claims that the district court
deprived Riley of due process at the March 2001 hearing and that
there was a defect in the removal procedure.


                                   19