Fortenberry et al v. Prine et al
Filing
26
ORDER denying Plaintiffs' 16 Motion to Remand. Additionally, Defendant Greater East Lampton Church, Inc., is dismissed as improperly joined. The parties shall immediately contact the chambers of U.S. Magistrate Judge Micheal T. Parker to schedule a case management conference. Signed by District Judge Keith Starrett on July 2, 2014 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
ASHLEY FORTENBERRY, et al.
V.
PLAINTIFFS
CIVIL ACTION NO. 2:14-CV-56-KS-MTP
CHRIS E. PRINE, et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court denies the Plaintiffs’ Motion to Remand
[16]. Defendant Greater East Lampton Church, Inc. is dismissed as improperly joined.
The parties shall immediately contact the chambers of the Magistrate Judge to
schedule a case management conference.
I. BACKGROUND
This is an insurance dispute arising from an automobile accident that occurred
in Marion County, Mississippi. On August 15, 2010, Plaintiffs were on their way to a
church choir event when a vehicle turned in front of them, causing an accident. All
Plaintiffs were injured. The other driver, Chris Prine, was killed.
Defendant Church Mutual Insurance Company (“Church Mutual”) provided
automobile insurance – including uninsured motorist coverage – to Greater East
Lampton Church, Inc. (“Greater East Lampton”), the church upon whose behalf
Plaintiffs claim to have traveled. Accordingly, Plaintiffs’ counsel submitted a claim on
the Church Mutual policy, arguing that Plaintiffs were “insureds” under the policy’s
terms and entitled to uninsured motorist coverage for their injuries. Church Mutual
denied Plaintiffs’ claim.
Plaintiffs filed a Complaint in the Circuit Court of Marion County, Mississippi,
on July 29, 2013. They named Prine, Greater East Lampton, and Church Mutual as
Defendants, and alleged that they had suffered various severe bodily injuries. They
alleged that Prine was negligent in the operation of his vehicle, and that his insurance
coverage was not sufficient to cover their damages. Therefore, they claimed Church
Mutual was liable under the uninsured motorist provision of its policy issued to
Greater East Lampton.
On April 8, 2014, Plaintiffs filed an Amended Complaint, naming the same
parties as Defendants. They asserted claims of negligence, negligence per se, and loss
of consortium against Prine, and they asserted claims of breach of contract, bad faith,
and breach of the covenant of good faith and fair dealing against Church Mutual. They
demanded compensatory damages for their physical and emotional injuries, punitive
damages, fees, costs, and interest.
On April 25, 2014, Church Mutual removed the case to this Court on the basis
of diversity jurisdiction. Church Mutual contends that Greater East Lampton was
improperly joined to defeat diversity jurisdiction, and that Chris Prine’s former
residency must be disregarded because he died prior to Plaintiff’s initial filing. On May
23, 2014, Plaintiffs filed a Motion to Remand [16], which the Court now considers.
II. DISCUSSION
“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
2
jurisdiction in any case where it has original jurisdiction, 28 U.S.C. § 1441(a), and it
has “original jurisdiction of all civil matters where the matter in controversy exceeds
the sum or value of $75,000, exclusive of interest and costs, and is between . . .
[c]itizens of different States . . . .” 28 U.S.C. § 1332(a). Because federal courts have
limited jurisdiction and removal raises significant federalism concerns, “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), and the “removal statutes are to be construed strictly
against removal and for remand.” Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100,
106 (5th Cir. 1996).
A.
Timeliness of Removal
First, Plaintiffs argue that Church Mutual’s removal was untimely. The removal
statute provides:
(1) The notice of removal of a civil action or proceeding shall be filed
within 30 days after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth the claim for relief
upon which such action or proceeding is based, or within 30 days after the
service of summons upon the defendant if such initial pleading has then
been filed in court and is not required to be served on the defendant,
whichever period is shorter.
***
(3) Except as provided in subsection (c), if the case stated by the initial
pleading is not removable, a notice of removal may be filed within 30 days
after receipt by the defendant, through service or otherwise, of a copy of
an amended pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has become
removable.
28 U.S.C. § 1446(b) (2014). “Restated, if the initial pleading sets forth a claim that
3
triggers the removal clock, the defendant must file notice of removal within thirty days
of receiving it. If the initial pleading did not trigger the thirty-day removal clock, a
notice of removal must be filed within thirty days of the defendant’s receipt of a
document from which it may ascertain that the case is, or has become, removable.”
Mumfrey v. CVS Pharm., Inc., 719 F.3d 392, 397-98 (5th Cir. 2013). The “information
supporting removal” contained in the “other paper must be ‘unequivocally clear and
certain’ to start the time limit running for a notice of removal . . . .” Bosky v. Kroger
Tex., LP, 288 F.3d 208, 211 (5th Cir. 2002).1
1.
The Original Complaint
First, Plaintiffs contend that the allegations of the original complaint provided
Church Mutual with notice that the amount in controversy exceeded $75,000. “[F]or
the purposes of the first paragraph of § 1446(b), the thirty day time period in which a
defendant must remove a case starts to run from the defendant’s receipt of the initial
pleading only when that pleading affirmatively reveals on its face that the plaintiff is
seeking damages in excess of the minimum jurisdictional amount of the federal court.”
Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992). The Complaint [1-2]
1
The United States District Court for the Northern District of Mississippi
noted the apparent dichotomy this standard creates. See Grooms v. Saint, No. 1:10CV-175-SA-JAD, 2010 U.S. Dist. LEXIS 128099, at *13 n. 2 (N.D. Miss. Dec. 3,
2010). If a defendant removes a case upon receipt of “other paper,” it must
demonstrate to the Court that the amount in controversy more likely than not
exceeds $75,000. Id. (citing De Aquilar v. Boeing Co., 47 F.3d 1404, 1408-12 (5th
Cir. 1995)). However, if a plaintiff contends that service of the same “other paper”
started the clock on the defendant’s time period for removal, he must demonstrate
that it was “unequivocally clear and certain” that the amount in controversy
exceeded $75,000. Id.
4
did not contain a “specific allegation that damages are in excess of the federal
jurisdictional amount. The removal clock was thus not triggered until [Church Mutual]
received a copy of an ‘amended pleading, motion, order, or other paper from which it
was first ascertainable that the case was removable . . . .” Mumfrey, 719 F.3d at 400.
Plaintiffs contend that the case was removable because it was facially apparent
from the Complaint that the damages sought or incurred exceed the minimum
jurisdictional amount. See De Aguilar, 11 F.3d at 57. However, “the ‘facially apparent’
inquiry is relevant only to ‘amount dispute’ cases,” in which the amount in controversy
is disputed, rather than “timeliness dispute” cases, in which the timeliness of removal
is disputed. Mumfrey, 719 F.3d at 400. In other words, Church Mutual may have been
able to remove based on the original Complaint, creating an “amount dispute” if
Plaintiffs then sought remand, but even if Church Mutual could have immediately
removed based on the original Complaint, the clock did not start running such that it
was required to do so. Id. at 400 n. 13.
Even if the “facially apparent” standard applied, the allegations of the original
Complaint were not sufficient to meet it. The Court will focus on Plaintiff Ashley
Fortenberry’s allegations because she is the only plaintiff addressed in the parties’
briefing, and she apparently suffered the most severe injuries. In the original
Complaint [1-2], Fortenberry claimed that she suffered numerous contusions, cuts, and
abrasions; broken bones; injuries to the cervical, thoracic, and lumbar spine; and leg,
arm, and head injuries. She also claimed that the accident caused continuing “pain and
suffering,” that it diminished her earning capacity, and that her 2006 Chevrolet Impala
5
was severely damaged.
In the Court’s opinion, it was not facially apparent from these allegations that
Fortenberry sought damages in excess of the jurisdictional minimum. While
Fortenberry alleged a wide variety of injuries, she provided no specific factual
allegations regarding the extent of her injuries, the damage to her vehicle, the types
or duration of medical treatment received, or the amount of her medical bills. At best,
the allegations in the Complaint showed that it was possible – or even likely – that the
amount in controversy exceeded $75,000, but it was not apparent.2
2.
“Other Paper”
Next, Plaintiffs contend that “other paper” served on Church Mutual more than
thirty days prior to removal demonstrated that the “amount in controversy” exceeded
the jurisdictional threshold. Specifically, Plaintiffs point to discovery responses [17-5,
2
See Harden v. Field Mem’l Cmty. Hosp., 265 F. App’x 405, 408 (5th Cir.
2008) (plaintiff’s allegations of a fractured nose, fractured jaw, lacerations to her
face and gums, broken dentures, and contusions to her face and body did not
provide sufficient notice to defendant that the amount in controversy exceeded the
jurisdictional minimum); Calhoun v. Group Contrs., LLC, No. 2:12-CV-70-KS-MTP,
2012 U.S. Dist. LEXIS 84697, at *5-*6 (S.D. Miss. June 19, 2012) (where plaintiff
alleged a “violent” auto accident, causing “significant damage” to vehicle and
“tremendous physical injury,” seeking past and future pain and suffering, loss of
enjoyment of life, past and future medical bills, and disfigurement, it was not
facially apparent that amount in controversy exceeded $75,000):; Davis v. Office
Max, 2011 U.S. Dist. LEXIS 137613, at *10-*11 (S.D. Miss. Nov. 29, 2011) (where
plaintiff alleged that she suffered extreme emotional distress, pain, suffering,
mental anguish, lost wages, and medical expenses after a mechanical door closed on
her wrist, it was possible, but not facially apparent, that the amount in controversy
exceeded $75,000); Reed v. Flores, 2009 U.S. Dist. LEXIS 105175, at *7 (N.D. Miss.
Nov. 10, 2009) (where plaintiff alleged severe physical and emotional damage, loss
of vision in one eye, pain and suffering, and medical expenses, it was not facially
apparent that her damages exceeded $75,000).
6
17-6] provided by Ashley Fortenberry on January 31, 2014; Plaintiffs’ Motion for Leave
to Amend the Complaint [1-2] filed on February 12, 2013; and correspondence among
counsel [17-7] dated February 21, 2014.
“[I]nformation relating to the amount in controversy in the record of the State
proceeding, or in responses to discovery, shall be treated as an ‘other paper’ under
subsection (b)(3).” 28 U.S.C. § 1446(c)(3)(A) (2014); see also Cole v. Knowledge Learning
Corp., 416 F. App’x 437, 440 (5th Cir. 2011) (discovery response and demand letter
qualified as “other paper” under § 1446 if it is “unequivocally clear and certain, so that
defendant may ascertain the action’s removability”); Eggert v. Britton, 223 F. App’x
394, 397 (5th Cir. 2007) (“discovery-type documents” may constitute “other paper”). The
Court may combine information contained in various “other papers” to assess the
timeliness of removal. Harden, 516 F. Supp. 2d at 608-09; see also Bosky, 288 F.3d at
210. As noted above, “information supporting removal” contained in “other paper must
be ‘unequivocally clear and certain’ to start the time limit running for a notice of
removal . . . .” Bosky, 288 F.3d at 211.
First, Plaintiffs’ motion seeking leave to amend their original complaint did not
start the time period for removal. “[T]he majority of courts that have considered the
effect of a motion to amend a petition filed in state court have concluded that such a
motion does not commence the thirty-day deadline for filing a notice of removal in
federal court.” Bolden v. McMillin, No. 3:06-CV-567-L-N, 2006 U.S. Dist. LEXIS 90200,
at *2 (S.D. Miss. Dec. 13, 2006); see also Schoonover v. W. Am. Ins. Co., 665 F. Supp.
511, 514 (S.D. Miss. 1987) (motion for leave to amend did not trigger 30-day time
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period because court retained discretion to deny leave to amend); O’Keefe v. State Farm
Fire & Cas. Co., No. 1:08-CV-600-HSO-LRA, 2009 U.S. Dist. LEXIS 127018, at *19 n.
2 (S.D. Miss. Jan. 13, 2009). If the state court retained discretion to deny the
amendment, then the “information supporting removal” was not “unequivocally clear
and certain.” See Bosky, 288 F.3d at 211; O’Keefe, 2009 U.S. Dist. LEXIS 127081 at *19
n. 2.
The Court will consider the discovery responses [17-5, 17-6] and correspondence
[17-7] in tandem. Fortenberry claimed lost wages of approximately $11,520.00, and
medical bills of approximately $43,000.00. Plaintiffs’ counsel clarified the medical bills
figure, representing that it only reflected medical bills incurred at a single provider up
to the date of the correspondence. Therefore, as early as January 31, 2014, Defendant
knew that Plaintiff Ashley Fortenberry was claiming at least $54,520.00 in damages,
and as early as February 21, 2014, Defendant knew it was likely that Fortenberry
would supplement the damages claim with additional medical bills.
As for Fortenberry’s injuries, in discovery she claimed to have suffered
“fractured ankles” and “numerous lacerations and contusions.”3 In the Complaint [1-2],
Fortenberry claimed that she and all of her passengers suffered numerous contusions,
3
Plaintiffs argue that Defendant knew more about Fortenberry’s injuries
than was revealed in the “other paper,” pointing to documents created in the
process of its claim investigation [17-1, 17-2, 17-3, 17-4]. Defendant’s subjective
knowledge of the actual amount in controversy is irrelevant. Bosky, 288 F.3d at 210;
S.W.S. Erectors v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996); Chapman, 969 F.2d
at 163. All that matters is what the initial pleading “affirmatively reveals on its
face,” Chapman, 969 F.2d at 163, or whether the “information supporting removal”
in the “other paper” is “unequivocally clear and certain.” Bosky, 288 F.3d at 211.
8
cuts, and abrasions; broken bones; injuries to the cervical, thoracic, and lumbar spine;
and leg, arm, and head injuries. She also claimed that the accident caused continuing
“pain and suffering,” and that it diminished her earning capacity. Fortenberry also
alleged that her vehicle, a 2006 Chevrolet Impala, was severely damaged.
In the Court’s opinion, these allegations do not constitute “unequivocally clear
and certain” information supporting removal. At best, the discovery responses [17-5,
17-6] and correspondence [17-7] demonstrate that it is “unequivocally clear and
certain” that Fortenberry seeks more than $54,520.00 in damages. It may be probable,
based on this information, that she seeks more than $75,000, but it is not
“unequivocally clear and certain.” She did not claim any mental or emotional injury,
and it is not unequivocally clear that she claimed any future pain and suffering or
future lost wages. While she referred to punitive damages in her interrogatory
responses [17-6], she did not assert a claim for punitive damages until she filed the
Amended Complaint [1-2] on April 8, 2014.4
Therefore, the Court finds that the time period for removal did not begin to run
upon Defendant’s receipt of Plaintiff Fortenberry’s discovery responses [17-5, 17-6] on
4
Cf. Harden, 516 F. Supp. 2d at 607 (allegations of “fractured jaw and nose,
contusions, and lacerations” were not “unequivocally clear and certain” claims for
more than $75,000); Hughes v. Safeco Ins. Co., 2011 U.S. Dist. LEXIS 155691, at *3*4 (S.D. Miss. June 14, 2011) (claim for “injuries and damages far in excess of
$25,000.00" was not “unequivocally clear and certain”); Stampley v. Fred’s Dollar
Store of Miss., No. 5:07-CV-153-DCB-JMR, 2008 U.S. Dist. LEXIS 115280, at *7
(S.D. Miss. Feb. 16, 2008) (“uncertainty or contingency concerning the amount of
damages” does not constitute “unequivocally clear and certain” information
supporting removal).
9
January 31, 2014, or upon its receipt of correspondence from Plaintiffs’ counsel [17-7]
on February 12, 2013. Rather, it began to run upon either (1) the state court’s entry of
an agreed order permitting Plaintiffs to amend the complaint, on April 2, 2014; or (2)
the filing of Plaintiffs’ amended complaint on April 8, 2014. In either case, Church
Mutual’s removal on April 25, 2014, was timely.
B.
Complete Diversity
Next, Plaintiffs argue that the parties are not completely diverse. For diversity
jurisdiction, the parties must be completely diverse. Harvey v. Grey Wolf Drilling Co.,
542 F.3d 1077, 1079 (5th Cir. 2008). “Complete diversity requires that all persons on
one side of the controversy be citizens of different states than all persons on the other
side.” Id. Plaintiffs are citizens of Mississippi. Church Mutual is a citizen of Wisconsin.
Chris Prine was a citizen of Mississippi before he died, and Greater East Lampton is
a citizen of Mississippi.
Defendant contends that the non-diverse Defendants – Greater East Lampton
Church and Chris Prine – were improperly joined. When a defendant alleges diversity
jurisdiction based on improper joinder, it has a “heavy burden” of proving the improper
joinder. Marathon Oil Co. v. Ruhrgas, A.G., 115 F.3d 315, 319 (5th Cir. 1997). There
are two ways to prove improper joinder: “(1) that there was actual fraud in the
plaintiff’s pleading of the jurisdictional facts or (2) that the plaintiff has no possibility
of establishing a cause of action against the non-diverse defendant in state court.”
Howard v. CitiFinancial, Inc., 195 F. Supp. 2d 811, 817-18 (S.D. Miss. 2002).
Under the second prong (inability to establish a cause of action), the court
10
must determine whether there is arguably a reasonable basis for
predicting that state law might impose liability. This means that there
must be a reasonable possibility of recovery, not merely a theoretical one.
Further, the standard for evaluating a claim of improper joinder is
similar to that used in evaluating a motion to dismiss for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6). The scope of the
inquiry for improper joinder, however, is broader than that for Rule
12(b)(6) because the Court may pierce the pleadings and consider
summary judgment-type evidence to determine whether the plaintiff has
a basis in fact for the claim. In conducting this inquiry, the court must
also take into account all unchallenged factual allegations, including
those in the complaint, in the light most favorable to the plaintiff. In
addition, the Court must resolve all ambiguities of state law in favor of
the non-removing party.
Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007) (citations and
punctuation omitted).5
1.
Greater East Lampton Church, Inc.
In the First Amended Complaint [1-2], Plaintiffs asserted no claims whatsoever
against Greater East Lampton. Counts I and II (negligence and negligence per se) are
asserted against Prine. Count III (loss of consortium) is an element of damages, rather
than a cause of action; in any case, it is not directed at Greater East Lampton. Counts
IV, V, and VI (failure to pay insurance benefits, bad faith, breach of covenant of good
faith and fair dealing) are asserted against Church Mutual.
5
Plaintiffs argue that Church Mutual’s improper joinder arguments are
untimely because Church Mutual could have ascertained that Greater East
Lampton and Chris Prine were improperly joined upon either the filing of the initial
Complaint or the filing of Prine’s Answer. See 28 U.S.C. § 1446(b) (providing that
case shall be removed within thirty days after the receipt by defendant of the initial
pleading, or within thirty days of receipt of other paper if initial pleading is not
removable). Of course, the improper joinder of non-diverse defendants was not the
only impediment to removal. As discussed above, the amount in controversy
requirement was not satisfied until later in the course of litigation.
11
The only factual allegations concerning Greater East Lampton are that Plaintiffs
acted at its “behest and direction” and were “performing business on [its] behalf.”
These allegations are not sufficient to survive a Rule 12(b)(6) analysis, and the Court
finds that they do not provide a reasonable basis to predict that a state court would
impose liability upon Greater East Lampton. Id. Accordingly, the Court dismisses
Greater East Lampton Church, Inc. as improperly joined.6
2.
Chris Prine/The Estate of Chris Pine
Defendant Chris Prine died several months before Plaintiffs filed their initial
Complaint. Therefore, Plaintiffs’ initial claims against him were a legal nullity.
Humphreys v. Irvine, 14 Miss. 205, 207 (Miss. 1846) (“A judgment for or against a dead
man is usually a nullity.”); In re Rules of Civil Procedure, No. 89-R-99001-SCT, 2014
Miss. LEXIS 288, at *39 (Miss. June 9, 2014); cf. Garlock Sealing Techs., LLC v.
Pittman, No. 2008-IA-01572-SCT, No. 2008-IA-01572-SCT, 2010 Miss. LEXIS 539, at
*8-*10 (Miss. Oct. 14, 2010). Plaintiffs have not cited to any authority providing that
a dead person can be a “real and substantial” party to litigation, and they do not
dispute that the Court must “disregard nominal or formal parties and rest jurisdiction
only upon the citizenship of real parties to the controversy.” See Corfield v. Dallas Glen
Hills LP, 355 F.3d 853, 857 (5th Cir. 2003).
Plaintiffs argue, though, that they may substitute Prine’s Estate. They are
6
The Court also notes that Plaintiffs provided no response to Defendant’s
argument that Greater East Lampton was improperly joined and made no attempt
to justify its joinder.
12
mistaken. Rule 25 “allows substitution for a deceased party where the claim is not
extinguished by his death,” but “the rule contemplates substitution for someone who
had been made a party before his death.” Mizukami v. Buras, 419 F.2d 1319, 1320 (5th
Cir. 1969). It is not available where the decedent “predeceased the filing of the action,”
as happened here. Id.; see also Bridges v. Enter. Prods. Co., 551 F. Supp. 2d 549, 562
(S.D. Miss. 2008).7
Plaintiffs contend that naming Prine rather than his Estate was a mere
“misnomer” or “party-name error,” citing Scaggs v. GPCH-GP, Inc., 23 So. 3d 1080,
1083-84 (Miss. 2009), but the “misnomer” doctrine is inapplicable here. “Chris Prine”
is not a different name for “the Estate of Chris Prine.” Legally, they are separate
persons. The misnomer doctrine acknowledges this distinction: “a misnomer . . . in the
name of a party may be corrected by amendment, provided it does not effect an entire
change of parties . . . .” Id. at 1083 (quoting 67A C.J.S. Parties § 237, pp. 760-61 (2002)).
Plaintiff failed to cite any case applying the “misnomer” doctrine to a situation like this
one – where a decedent was named, rather than his estate.
Therefore, Plaintiffs’ claims against Chris Prine are a legal nullity, and Rule 25
does not permit substitution of his Estate. Accordingly, the Court finds that Prine
should be disregarded for purposes of determining whether the parties are completely
7
Likewise, Mississippi’s Rules of Civil Procedure do not allow substitution in
this situation. See In re Rules of Civil Procedure, 2014 Miss. LEXIS 288 at *39 (“If
the named plaintiff was deceased at the time the original complaint was filed, then
the original complaint is null and void and the real party in interest cannot be
substituted as the proper plaintiff because a valid action was never commenced.”).
13
diverse.8
C.
Waiver of Right to Remove
Plaintiffs argue that Church Mutual waived its right to remove by filing an
Answer in the state court. “A defendant can waive the right to remove to federal court
if it proceeds to defend the action in state court or otherwise invoke the processes of
that court.” John H. Carney & Assocs. v. State Farm Lloyds, 376 F. Supp. 2d 697, 703
(N.D. Tex. June 17, 2005) (citing Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir.
1986)). But the “waiver must be clear and indicate a specific, positive intent to proceed
in state court.” Id. Furthermore, “[a]ny actions taken in state court before it became
ascertainable that the case was removable cannot logically be indicative of a decision
8
Plaintiffs have, in fact, settled their claims against the Estate for the
coverage limit of Prine’s liability policy. Although Defendants raised this point in
their response brief, Plaintiffs conspicuously failed to address it in their reply –
neither confirming nor denying that they had settled their claims against the
Estate. The attorneys’ correspondence [17-7] of February 21, 2014, confirms the
settlement.
On June 30, 2014, the Court held a teleconference to ask counsel whether
Plaintiffs’ claims against the Estate had been settled. Plaintiffs’ counsel admitted
that they had reached a settlement agreement with the Estate, but argued that the
claims technically remained because the agreement had not been approved by the
Chancery Court. See MISS. CODE ANN. § 93-13-59; In re Estate of Ashmore, No. 1:97CV-177-B-D, 1998 U.S. Dist. LEXIS 4645, at *2-*3 (N.D. Miss. Mar. 25, 1998). This
argument might have merit. See Vasquez v. Alto Bonito Gravel Plant Corp., 56 F.3d
689, 693-94 (5th Cir. 1995) (where Texas law required court approval of settlement
agreement, removal prior to court approval of settlement with non-diverse
defendant was premature).
The argument’s possible merit makes Plaintiffs’ failure to assert it in briefing
even more perplexing, though. Indeed, Plaintiffs’ silence on the issue smacks of
gamesmanship. It is ultimately inconsequential, as the Estate is not a party to the
case. But such litigation tactics – hiding a key fact from the Court in an effort to
avoid federal jurisdiction – are beneath any officer of the Court.
14
by the Defendants to continue in state court rather than federal court.” Id. (quoting
Hydro-Action, Inc. v. James, 233 F. Supp. 2d 836, 840 (E.D. Tex. 2002)); see also
Scanlan v. Radiance Techs., Inc., No. 3:07-CV-145, 2008 U.S. Dist. LEXIS 77543, at
*10-*11 (N.D. Miss. Sept. 11, 2008) (where plaintiffs may have maneuvered to prevent
removal, defendant’s litigation in state court pending determination of removability did
not waive right to removal).
Here, Church Mutual filed no dispositive motions in state court. See Johnson v.
Heublein Inc., 227 F.3d 236, 244 (5th Cir. 2000) (where defendant filed both motions
to dismiss and motions for summary judgment in state court, it invoked jurisdiction
of the state court in resolving issues presented by the complaint and waived right to
remove). It did not seek adjudication on the merits. It merely answered the initial
complaint before the case became removable. That does not constitute waiver of the
right to remove. John H. Carney, 376 F. Supp. 2d at 703; Scanlan, 2008 U.S. Dist.
LEXIS 77543 at *10-*11.
III. CONCLUSION
For the reasons stated above, the Court denies Plaintiffs’ Motion to Remand
[16]. Defendant Greater East Lampton Church, Inc. is dismissed as improperly joined.
The parties shall immediately contact the chambers of the Magistrate Judge to
schedule a case management conference.
SO ORDERED AND ADJUDGED this 2nd day of July, 2014.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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