Anthony Kennedy

“ Whatever may be implied from Carneal, the present statutory authority permits appellate courts to cure only defective allegations of jurisdiction and not jurisdictional flaws.
I am not at all persuaded, either, that practical considerations in the case warrant our holding that courts of appeals have the power to dismiss nondiverse parties. The dissent in the Court of Appeals, and the opinion for the Court here, each assume it would be quite a waste to remand the case to the District Court so that it may determine whether an amendment to the complaint ought to be allowed. ”

“ Nor does Carneal establish in any explicit way, or even by necessary inference, the authority of an appellate court to preserve jurisdiction by dismissing a nondiverse party who defeats complete diversity.
The majority's reliance on Carneal proceeds from a premise that is most questionable. It assumes that Carneal involved a single action in which this Court dismissed on its own the nondiverse parties. ”