Wilson v. Kemper Corporate Services, Inc. et al
ORDER denying 29 Motion for Certificate of Appealability Signed by District Judge David C. Bramlette, III on 11/18/2022 (jh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL No. 5:22-cv-62-DCB-LGI
KEMPER CORPORATE SERVICES, INC.,
UNION NATIONAL FIRE INSURANCE COMPANY,
ROBIN WILSON, ANGELA WASHINGTON,
JOHN DOE ENTITIES 1-5 AND JOHN DOES PERSONS 1-5
THIS MATTER is before the Court on Plaintiff Maria Wilson’s
(“Plaintiff”) Motion to Certify Order for Interlocutory Appeal
(“Motion”). [ECF No. 29]. The Court having examined the Motion,
the parties’ submissions, the record, the applicable legal
authority, and being fully informed in the premises, finds as
Procedural & Factual Background
This matter arose out of a dispute regarding an insurance
claim filed by Plaintiff. [ECF No. 28] at 2. Plaintiff sued
Kemper Corporate Services, Inc., Union National Fire Insurance
Company, Robin Wilson, and Angela Washington (collectively,
“Defendants”) in Mississippi state court on claims of breach of
contract, tortious breach of contract, breach of duty of good
faith and fair dealing, negligence, gross negligence, fraud, and
bad faith. [ECF No. 1-1] at 7-18.
In the course of litigation, Defendants removed the case to
this Court, filed a Motion to Compel Arbitration and to Stay
Proceedings and Discovery, and filed a Motion to Set Aside Entry
of Default against Defendant Robin Wilson. [ECF No. 1]; [ECF No.
3]; [ECF No. 7]. Plaintiff then filed a Motion to Remand. [ECF
No. 16]. The Court granted in part and denied in part as moot
Defendants’ Motion to Compel Arbitration, granted Defendant
Wilson’s Motion to Set Aside Entry of Default, and denied
Plaintiff’s Motion to Remand. [ECF No. 28]. Plaintiff then filed
the present Motion. [ECF No. 29].
Permissive interlocutory appeals are governed by 28 U.S.C.
§ 1292(b), which creates a “narrow exception” to the final
judgment rule. In re Rolls Royce Corp., 775 F.3d 671, 676 (5th
Cir. 2014). Therefore, an interlocutory appeal “is available
only in limited circumstances.” In re Lloyd's Register N. Am.,
Inc., 780 F.3d 283, 288 (5th Cir. 2015).
When a district judge, in making in a civil
action an order not otherwise appealable under
this section, shall be of the opinion that
such order involves a controlling question of
law as to which there is substantial ground
for difference of opinion and that an
immediate appeal from the order may materially
advance the ultimate termination of the
litigation, he shall so state in writing in
28 U.S.C. § 1292(b).
Plaintiff requests certification of the Court’s October 13,
2022, Order [ECF No. 28] and that the Court stay arbitration
pending appellate resolution. [ECF No. 30] at 1-2. In so doing,
Plaintiff questions whether the Court has rightful jurisdiction
over this matter. Id. at 1. This question is a controlling
question of law. Rolls on behalf of A. R. v. Packaging Corp. of
Am. Inc., 34 F.4th 431, 435 (5th Cir. 2022). Likewise, its
disposition via immediate appeal may advance the ultimate
termination of the litigation. 28 U.S.C. § 1292(b).
The Court’s inquiry is now whether “there is substantial
ground for difference of opinion” regarding the Court’s
jurisdiction over the matter. Id. This issue hinges on whether
Plaintiff fraudulently joined Defendants Wilson and Washington,
which would permit diversity jurisdiction. As the Court will now
discuss, there are no substantial grounds for differences of
opinions as to this question.
Plaintiff’s claims against these two defendants include
negligence against both and fraud against Defendant Wilson. [ECF
No. 1-1] at 10-16. The Court cited binding Fifth Circuit
precedent and Southern District precedent to hold that
“Plaintiff cannot base a fraud claim upon alleged
misrepresentations that contradict the plain language of the
insurance policy.” Rhodes v. State Farm Fire & Cas. Co., No.
CIV.108CV674-HSO-RHW, 2009 WL 563876, at *6 (S.D. Miss. Mar. 4,
2009) (citing Leonard v. Nationwide Mutual Ins. Co., 499 F.3d
419, 439-40 (5th Cir. 2007)).
The Court further relied on well-established Mississippi
precedent that establishes that agents are not liable for
ordinary negligence in performing their duties on behalf of the
insurers. Gallagher Bassett Services, Inc. v. Jeffcoat, 887 S.
2d 77, 785 (Miss. 2004); see also Bass v. California Life Ins.
Co., 581 So. 2d 1087, 1090 (Miss. 1991); See also Dunn v. State
Farm fire & Casualty Co., 711 F. Supp. 1359 (N.D. Miss. 1987).
There is no “substantial doubt” that the district court's
order was correct. Murray v. Gen. Motors, LLC, No. 3:10-CV-188
HTW-LRA, 2011 WL3684517, at *5 (S.D. Miss. Aug. 22, 2011).
Mississippi state and federal law are clear on these issues, so
there are no substantial grounds for differences of opinions.
Although Plaintiff avers such, she has not alleged
sufficient facts that create ambiguities as to the proper
application of the above-cited law. [ECF No. 35] at 4-5. The
record, when considered in tandem with applicable law, does not
permit such causes of action against Defendants Wilson and
Washington, so the Court properly determined that Plaintiff
fraudulently joined them both to this action. [ECF No. 28].
Plaintiff’s request for certification of the Court’s Order
for interlocutory appeal is denied, because there is no
substantial ground for difference of opinion as to whether the
Court erred in holding that Plaintiff fraudulently joined
Defendants Wilson and Washington. Plaintiff’s request for an
order staying arbitration pending interlocutory appeal is also
denied as moot on this same basis.
For the foregoing reasons, Plaintiff's Motion [ECF No. 29]
shall be denied.
IT IS HEREBY ORDERED that Plaintiff’s Motion to Certify
Order for Interlocutory Appeal [ECF No. 29] is DENIED.
SO ORDERED, this 18th day of November, 2022.
/s/ David Bramlette_________
DAVID C. BRAMLETTE III
UNITED STATES DISTRICT JUDGE
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