Harden v. Maxwell et al

Filing 42

ORDER Dismissing Without Prejudice for Re-filing at a Later Date 6 Motion for Judgment on the Pleadings; dismissing 9 Motion to Remand to State Court. Signed by District Judge Michael P. Mills on 9/12/2016. (lpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION

CARL L. HARDEN

PLAINTIFF

V.

NO. 4:15CV167-M-V

ROBERT W. MAXWELL, CARL J. GIFFIN,
BILL LUCKETT, individually and in their capacities
as attorneys for Tom M. Vanderford, Jr., Hyundai
Motor Company, TOM M. VANDERFORD,JR.,
Individually and in his capacity as Executive
Director of Litigation for Hyundai Motor America,
HYUNDAI MOTOR AMERICA, HYUNDAI
MOTOR COMPANY, and OTHER
UNIDENTIFIED PLAINTIFFS [SIC]

DEFENDANTS

ORDER
This cause comes before the court on its own motion, addressing certain issues which
have arisen following the withdrawal of most of plaintiff=s counsel from this case.
This is a defamation action which plaintiff Carl L. Harden originally filed in the Circuit
Court of Bolivar County. In his complaint, plaintiff alleged, inter alia, that the defendant
attorneys defamed him during comments made before a judge during an in chambers conference
which was held in the course of a lawsuit filed against Hyundai Motor Company. See Joyce D.
Hutton v. Hyundai Motor America, et al., Cause No. 2006- 0053 (Bolivar County Circuit Court
2014). After removing this case to this court, defendants filed a motion to dismiss, in which they
assert that plaintiff=s claims are barred by the Aabsolute privilege that attaches to allegedlydefamatory statements made in the course of judicial proceedings.@ [Brief at 4].
The Fifth Circuit has observed that AMississippi courts consider statements made in

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connection with judicial proceedings, >if in any way relevant to the subject matter of the action,=
as >absolutely privileged and immune from attack as defamation, even if such statements are
made maliciously and with knowledge of their falsehood.=@ Lehman v. Holleman, 526 F. App'x
346, 348 (5th Cir. 2013), citing McCorkle v. McCorkle, 811 So.2d 258, 266 (Miss. Ct. App.
2001). In their motion to dismiss, defendants argue that this authority is fatal to plaintiff=s
claims, since, they contend, he bases his lawsuit entirely upon statements which were made by
the defendant attorneys Ain connection with judicial proceedings,@ namely the Hutton lawsuit.
As argued by defendants in their brief:
Plaintiff alleges that these defendants made defamatory statements on two
occasions during the course of the Hutton Lawsuit. First, Plaintiff complains that
Defendants Maxwell, Vanderford, and Luckett made defamatory statements on
October 6, 2014, during an in-chambers conference with the presiding judge in
the Hutton Lawsuit. . . . Second, Plaintiff complains that he was defamed by [a]
statement in Hyundai=s post-trial motion for judgment notwithstanding the verdict
in the Hutton Lawsuit.
[Defendants= brief at 2-3]. While defendants= arguments appear to have considerable force, they
are not properly before the court at this time, since the litigation of the merits of this case has
been stayed pending the resolution of jurisdictional issues. This is because plaintiff has filed a
motion to remand, in which he alleges that diversity jurisdiction is lacking, inasmuch as, he
contends, both he and defendant Luckett are domiciled in Mississippi.
In response to the motion to remand, defendants sought, and were granted, remandrelated discovery regarding the issue of whether plaintiff, is, in fact, a Mississippi domiciliary.
Following discovery, defendants submitted a response to the motion to remand in which they
argue that discovery conclusively established that plaintiff has never been domiciled in
Mississippi during the periods relevant to this action. Much like their arguments on the merits of

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this case, defendants= arguments on the remand issue strike this court as being strong ones. This
court’s consideration of the motion to remand has been hampered, however, by the fact that the
individuals listed on the docket as plaintiff=s counsel all attempted to withdraw from this lawsuit
shortly after defendants= response to the motion to remand was filed.
In their motion to withdraw, which was granted by Magistrate Judge Virden, Athe law
firm of Sweet & Associates, including any attorney currently employed by it@ noted that mutual
recriminations of dishonesty had been made between their firm and plaintiff, making their
continued representation of him untenable. That left attorney Terris Harris as the sole individual
listed as counsel for plaintiff on the docket, since he is no longer employed by Sweet &
Associates and thus not subject to Judge Virden=s order. This court, through its staff, e-mailed
Mr. Harris to inquire regarding the status of his representation of plaintiff. Harris responded
with an e-mail stating that A[i]t is not possible for me, either ethically or professionally, to assist
the Plaintiff in this case. Even if I could, my current employment situation would not allow such
representation.@ While this court regards Harris=s e-mail as a reliable indication regarding his
preferences and beliefs, it concludes, after consulting with Judge Virden, that it is insufficient to
remove him as an attorney from this case. Judge Virden has scheduled a September 14, 2016
telephonic conference so that the status of plaintiff=s representation may be clarified, and this
strikes this court as being a good idea.
This court notes, however, that it has never received a reply from plaintiff to defendant=s
response to the motion to remand, and it is unclear whether plaintiff still maintains that this court
lacks jurisdiction over this case. Moreover, this court has no response from plaintiff to the
motion to dismiss, due partly to the stay which has been entered. It is thus unclear to this court

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whether plaintiff has any authority casting doubt upon what appears to be a rather compelling
motion to dismiss. Indeed, it is not even clear to this court that plaintiff intends to prosecute this
lawsuit himself, now that his counsel have all sought to leave it.
This court has an independent duty to resolve jurisdictional issues, and it makes a
preliminary finding, for essentially the reasons stated in defendants’ response to the motion to
remand, that plaintiff is not a domiciliary of Mississippi for the purposes of diversity jurisdiction.
In their response, defendants write that:
Discovery . . . has confirmed beyond doubt that Harden is not a citizen of
Mississippi. He has not lived in Mississippi since July 2013, when he married his
second wife, Lena Moore Harden, and returned to his home state of Arkansas.
Since reestablishing his domicile in Arkansas, and since separating from Lena,
Harden has recently begun leasing an apartment in TennesseeCwhich appears to
be his only fixed residence today. So Harden is domiciled either in Arkansas, as
he testified in late 2014, or in TennesseeCbut he is most assuredly not domiciled
in Mississippi. The Court should deny Harden=s motion to remand and proceed to
the merits.
Although this court has no post-discovery arguments from plaintiff on this issue, defendants’
arguments strike it as being sound.
It thus appears that diversity jurisdiction exists in this case, and if this court were forced
to make a formal ruling on the motion to remand at this time, it would deny that motion. This
court recognizes, however, that plaintiff=s ability to file a reply to defendants’ response to his
motion to remand has been severely hampered by the (actual or attempted) withdrawal of his
counsel. Given these uncertainties, the court concludes that the proper course of action is to
dismiss the pending motions without prejudice to refiling, once the status of plaintiff=s
representation (including whether he intends to prosecute this case himself) has been clarified. If
plaintiff still maintains, after the discovery which has been conducted, that he is a domiciliary of

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Mississippi, then he may re-file a motion to remand so stating. Defendants may likewise re-file
their motion to dismiss, and it will, of course, be incumbent upon plaintiff to respond to that
motion if he does not wish to see it granted. For the time being, however, this court concludes
that the proper course of action is to dismiss the pending motions without prejudice to re-filing,
once the status of plaintiff=s representation in this lawsuit has been clarified.
It is therefore ordered that the pending motions to dismiss [6-1] and to remand [9-1] are
dismissed without prejudice to re-filing at a later date.
So ordered, this, the 12th day of September, 2016

/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI

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