Gray v. Border Express Services, LTD et al

Filing 25

ORDER DENYING PLAINTIFF'S 4 MOTION to Remand to State Court filed by Timothy C. Gray and Plaintiff's 15 Amended MOTION to Remand filed by Timothy C. Gray and lifting stay. Signed by District Judge Keith Starrett on September 28, 2011 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION

TIMOTHY C. GRAY, individually and by and
through Lolettha Gray as Conservator for the Estate
of Timothy C. Gray
v.

PLAINTIFF

CIVIL ACTION NO. 2:11-CV-128-KS-MTP

BORDER EXPRESS SERVICES, LTD, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court denies Plaintiff’s Motion to Remand [4] and
Amended Motion to Remand [15].
I. BACKGROUND
According to Plaintiff’s Complaint, Plaintiff was a passenger in an automobile being
operated by Defendant Dwight Gray. Their vehicle was involved in a collision with a tractor-trailer
operated by Defendant Gerald D. Klassen and owned by Defendant Border Express Services, Ltd.
(“Border Express”).1 Dwight Gray was killed, and Plaintiff was injured.
Plaintiff filed the present action in the Circuit Court of Covington County, Mississippi,
naming Dwight Gray, the Estate of Dwight Gray (“the Estate”), Klassen, and Border Express as
Defendants. Plaintiff alleges that Defendants’ negligence caused his injuries, and he seeks monetary
damages. Border Express removed the case to this Court, and Plaintiff filed Motions to Remand,
which the Court now addresses.

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Plaintiff also named Radiant Logistics Global Services, Inc. as a Defendant, but its
citizenship and involvement in the events leading to this case are not pertinent to the resolution
of the present motion.

II. DISCUSSION
“There should be little need for a reminder that federal courts are courts of limited
jurisdiction, having only the authority endowed by the Constitution and that conferred by Congress.”
Halmekangas v. State Farm Fire & Cas. Co., 603 F.3d 290, 292 (5th Cir. 2010). This Court has
removal jurisdiction in any case where it has original jurisdiction. 28 U.S.C. § 1441(a). It has
“original jurisdiction of all civil matters where the matter in controversy exceeds the sum or value
of $75,000, exclusive of interests and costs, and is between . . . [c]itizens of different States . . . .”
28 U.S.C. § 1332(a). Complete diversity must exist among the parties. Harvey v. Grey Wolf Drilling
Co., 542 F.3d 1077, 1079 (5th Cir. 2008). “[A]ll persons on one side of the controversy [must] be
citizens of different states than all persons on the other side.” Id. Furthermore, a case may not be
removed on the basis of diversity jurisdiction if a party “in interest properly joined and served as
defendant[] is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b). “The
party seeking to invoke federal jurisdiction bears the burden of establishing . . . that the parties are
diverse . . . .” Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 639 (5th Cir. 2003). “Because
removal raises significant federalism concerns, the removal statute is strictly construed and any
doubt as to the propriety of removal should be resolved in favor of remand.” Gutierrez v. Flores, 543
F.3d 248, 251 (5th Cir. 2008) (punctuation omitted).
In the present case, it is undisputed that the amount in controversy exceeds $75,000.00
exclusive of interest and costs. However, Plaintiff argues that the parties to this action are not
completely diverse. Plaintiff is a resident of Mississippi. Dwight Gray was a citizen of Mississippi.
Therefore, the Estate is a citizen of the state of Mississippi. See 28 U.S.C. § 1332(c)(2).
Accordingly, on the face of the Complaint, the parties are not completely diverse.

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A.

Improper Joinder
Defendants argue that Dwight Gray and the Estate were improperly joined to defeat

diversity. In the Fifth Circuit, there are “two ways to establish improper joinder: (1) actual fraud in
the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action
against the non-diverse party in state court.” Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th
Cir. 2004) (punctuation omitted). “The burden of persuasion on a party claiming improper joinder
is a heavy one.” Kling Realty Co. v. Chevron United States, Inc., 575 F.3d 510, 514 (5th Cir. 2009).
To establish improper joinder through the second prong of the analysis, a removing defendant must
demonstrate “that there is no possibility of recovery by the plaintiff against an in-state defendant,
which stated differently means that there is no reasonable basis for the . . . court to predict that the
plaintiff might be able to recover against an in-state defendant.” Id.
The Court may resolve the issue in two ways. Smallwood, 385 F.3d at 573. First, the Court
conducts a “Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to
determine whether the complaint states a claim under state law against the in-state defendant.” Id.
Then, in cases where the “plaintiff has stated a claim, but has misstated or omitted discrete facts that
would determine the propriety of joinder,” the Court “may, in its discretion, pierce the pleadings and
conduct a summary inquiry.” Id. To be clear, the Court must first conduct a 12(b)(6) analysis, and
it may only pierce the pleadings if Plaintiff stated a valid claim for relief under state law. Id.; see
also Larroquette v. Cardinal Health 200, Inc., 466 F.3d 373, 376 (5th Cir. 2006); McDonal v. Abbott
Labs, 408 F.3d 177, 183 n. 6 (5th Cir. 2005); Anderson v. Ga. Gulf Lake Charles, LLC, 342 F.
App’x 911, 915-16 (5th Cir. 2009); Smith v. Petsmart, Inc., 278 F. App’x 377, 379 (5th Cir. 2008);
Berry v. Hardwick, 152 F. App’x 371, 374-75 (5th Cir. 2005).

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Plaintiff’s Complaint contains insufficient facts to state a valid claim for relief as to Dwight
Gray. Indeed, Plaintiff failed to provide any factual allegations whatsoever in support of his claim
as to Dwight Gray or the Estate. The Complaint merely provides: “The negligent conduct of Dwight
Gray caused or contributed to the aforementioned collision, damage and loss.” Of course, this is a
textbook example of the sort of conclusory allegation or legal conclusion that the Court is not
permitted to accept as true when conducting a 12(b)(6) analysis. Great Lakes Dredge & Dock Co.
LLC v. La. State, 624 F.3d 201, 210 (5th Cir. 2010). Legal conclusions may provide “the complaint’s
framework, [but] they must be supported by factual allegations.” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1940, 173 L. Ed. 2d 868 (2009). A plaintiff must provide more than “threadbare recitals of a cause
of action’s elements, supported by mere conclusory statements, which do not permit the court to
infer more than the mere possibility of misconduct.” Hershey v. Energy Transfer Partners, L.P., 610
F.3d 239, 245 (5th Cir. 2010) (punctuation omitted). Therefore, as Plaintiff failed to state a valid
claim for relief as to Defendants Dwight Gray and the Estate of Dwight Gray, the Court finds that
they were improperly joined. The Court dismisses Plaintiff’s claims as to Dwight Gray and the
Estate of Dwight Gray without prejudice.
B.

Waiver
Plaintiff initially argued that Defendants waived their right to remove this case by failing to

do so within thirty days of their receipt of a copy of the Complaint. However, Plaintiff did not
address this argument in his rebuttal, leading the Court to believe that he has abandoned it.
Nonetheless, the Court shall briefly address it.
“The notice of removal of a civil action or proceeding shall be filed within thirty days after
the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting

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forth the claim for relief upon which such action or proceeding is based . . . .” 28 U.S.C. § 1446(b).
Plaintiff alleges that he provided Defendants with a copy of the Complaint at some point in 2010.
Defendants deny this. Regardless, it is undisputed that Defendants have not yet been served with
process. A “named defendant’s time to remove” is not triggered “by mere receipt of the complaint
unattended by any formal service.” Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344, 347, 119
S. Ct. 1322, 143 L. Ed. 2d 448 (1999); see also Bd. of Regents of the Univ. of Tex. Sys. v. Nippon
Tel. & Tel. Corp., 478 F.3d 274, 278 (5th Cir. 2007); Badon v. R J R Nabisco, Inc., 224 F.3d 382,
390 (5th Cir. 2000). Therefore, Plaintiff’s waiver argument is without merit.
C.

Mississippi Code Section 93-13-27
Plaintiff initially argued that Defendants could not remove the case because Plaintiff’s

Complaint was void. Plaintiff asserted that his sister, Lolettha Gray, petitioned the Chancery Court
of Covington County, Mississippi to be appointed his conservator on June 10, 2010. She then filed
the present suit on his behalf on June 16, 2010, without having been appointed as conservator.
Mississippi Code Section 93-13-27 provides:
All suits . . . for or on behalf of a ward for whom a general guardian has been
appointed shall be brought in the name of the general guardian for the use and benefit
of such ward . . . . And all such actions . . . shall be commenced only after authority
has been granted to such general guardian by proper order or decree of the court or
chancellor of the county in this state in which the guardianship proceedings are
pending . . . . A certified copy of said order authorizing such suit or proceedings shall
be attached to the complaint or instrument or document originally filed as
commencing such action . . . .
MISS. CODE ANN. § 93-13-27. Therefore, Plaintiff argues that the Complaint is void because
Lolettha Gray failed to comply with the statutory requirements.
Plaintiff did not address this argument in his rebuttal. Therefore, he has apparently
abandoned it. Nonetheless, the Court shall briefly address it. Plaintiff’s Complaint plainly states that
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it was brought by the Plaintiff both individually and “by and through” Lolettha Gray as his
conservator. Therefore, the Complaint is not void. Even if Lolettha Gray does not have the authority
to pursue this case on Plaintiff’s behalf, the Complaint indicates that he is pursuing it on his own
behalf.
III. CONCLUSION
For the reasons stated above, the Court denies Plaintiff’s Motion to Remand [4] and
Amended Motion to Remand [15]. Accordingly, the stay on this case is lifted.
SO ORDERED AND ADJUDGED this 28th day of September 2011.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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