United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS August 29, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 02-60608 (consolidated with 02-60609)
SUSIE ROSS; DENITA JOHNSON; JAMES CURTIS; LARRY PICKENS; DORIS KING; KAREN WHITLEY; RUBY MAGEE; ROY ALLEN, JR.; CHESTER NEWMAN; SHARON WHITE,
Plaintiffs-Appellants,
versus
CITIFINANCIAL, INC., a Maryland Corporation, formerly known as First Family Financial Services, Inc.; CITIFINANCIAL, INC., a Maryland Corporation, formerly known as Commercial Credit of Mississippi; CITIFINANCIAL, INC., a Tennessee Corporation, formerly known as Commercial Credit of Mississippi; CITIFINANCIAL SERVICES, INC., a Georgia Corporation; UNION SECURITY LIFE INSURANCE COMPANY; AMERICAN SECURITY INSURANCE COMPANY; TRACY MITCHELL; DARLA FARMER; JOE SMITH,
Defendants-Appellees.
DENISE HOWARD; LENA CHAMBERS; PRISCILLA CHALMERS; BETTY WHITLEY; FAYE DENISE LOGAN; CAROL BUSECK; KELVIN JOHNSON; PHILLIP GORDON; DEBBIE GORDON; ALISHA F. WILSON; MARGARET HAYMON; WANDA ALLEN; MONROE HOGGATT; EUGENE HAYMON; EVA PARKER HALL,
CITIFINANCIAL, INC., a Maryland Corporation, formerly known as First Family Financial Services, Inc.; CITIFINANCIAL, INC., a Maryland Corporation, formerly known as Commercial Credit of Mississippi; CITIFINANCIAL, INC., a Tennessee Corporation, formerly known as Commercial Credit of Mississippi; CITIFINANCIAL SERVICES, INC., a Georgia Corporation; UNION SECURITY LIFE INSURANCE COMPANY; AMERICAN SECURITY INSURANCE COMPANY; TRACY MITCHELL; DARLA FARMER; JOE SMITH; JOHN DOES 1-50; VALERIE STEVENS, Defendants-Appellees.
Appeal from the United States District Court for the Southern District of Mississippi (5:01-CV-185-BN and 3:01-CV-471-BN)
Before SMITH, WIENER, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
For these consolidated 28 U.S.C. § 1292(b) interlocutory
appeals from remand-denials where diversity-jurisdiction removal
was based on fraudulent joinder, at issue is whether there is
arguably a reasonable basis for predicting the non-diverse
defendants could be liable under Mississippi law and, therefore,
not fraudulently joined. AFFIRMED; REMANDED.
I.
Plaintiffs, all Mississippi residents, entered into loan
agreements with Citifinancial or its predecessors. In conjunction
with those loans, Plaintiffs purchased insurance, such as credit
life and property, through Union Security Life Insurance Company
and American Security Insurance Company.
Plaintiffs filed actions in Mississippi state court. In
addition to suing Citifinancial, American Security, and Union
Security (non-resident corporations), Plaintiffs sued Citifinancial
employees, who were licensed insurance agents and Mississippi
residents (collectively: Individual Defendants).
2 Plaintiffs alleged: their insurance premiums were excessive
compared to market rates; they were inflated by commissions; and
their loan interest and principal were increased by including the
insurance polices within the loan amounts or unnecessarily
refinancing the loans. Plaintiffs claimed breach of fiduciary
duty, breach of implied covenants of good faith and fair dealing,
fraudulent and negligent misrepresentation and omission, civil
conspiracy, negligence, and unconscionability under Mississippi
law.
Along this line, where Defendants submitted evidence of
Plaintiffs’ loan documents, they contained signed separate
disclosure statements or signed provisions on the note or security
agreements, making clear that insurance was not required. These
statements included: “CREDIT LIFE OR CREDIT DISABILITY INSURANCE
IS NOT REQUIRED TO OBTAIN THIS LOAN”; and “Credit Life and Credit
Disability Insurance are NOT REQUIRED in connection with this loan
and were not a factor in the approval of this extension of credit.
If you chose to obtain life insurance through Lender ... the cost
thereof is shown ... herein and is included in the Amount
Financed”. Each of the remaining Plaintiffs has at least a high
school education except for one, who has a ninth grade education.
In 2001, Defendants removed the actions to federal court under
28 U.S.C. § 1441, claiming diversity jurisdiction pursuant to 28
3 U.S.C. § 1332. To that end, Defendants claimed Individual
Defendants were fraudulently joined.
The district court denied Plaintiffs’ remand motions,
reasoning: Individual Defendants were fraudulently joined;
therefore, jurisdiction was valid under § 1332. It held most of
Plaintiffs’ claims time-barred under Mississippi’s general three-
year statute of limitations, MISS. CODE. ANN. § 15-1-49(1). For
Plaintiffs’ remaining claims, it concluded there was no reasonable
basis for predicting Individual Defendants could be liable. Howard
v. Citifinancial, No. 3:01-CV-471BN (S.D. Miss. 13 Mar. 2002); Ross
v. Citifinancial, No. 5:01-CV-185BN (S.D. Miss. 18 Mar. 2002). (A
number of Plaintiffs had been voluntarily dismissed or did not
assert claims against Individual Defendants.)
II.
The interlocutory appeal for each action presents four issues:
(1) whether the district court applied the correct standard in
holding non-diverse defendants were fraudulently joined; (2)
whether, under Mississippi law, an affirmative act is required to
toll the statute of limitations for the claims at issue; (3)
whether a party may justifiably rely on an oral representation
contrary to the terms of a written contract; and (4) whether a
fiduciary relationship arises in first party insurance contracts
such as those at issue.
4 A.
Fraudulent joinder is established by showing: (1) actual
fraud in pleading jurisdictional facts; or (2) inability of the
plaintiff to establish a cause of action against the non-diverse
plaintiff. Travis v. Irby, 326 F.3d 644, 647 (5th Cir. 2003)
(citing Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir.
1999)). At issue is the standard to be applied for the second of
the two means for showing fraudulent joinder.
The district court noted that the removing party has the
burden of showing fraudulent joinder, but that Plaintiffs could not
rest upon mere allegations in their pleadings. Rather, the court
could pierce the pleadings. It concluded: “In the event the
court, after resolving all disputed questions of fact and
ambiguities of law in favor of the non-removing party, finds that
there is ‘arguably a reasonable basis for predicting that the state
law might impose liability on the facts involved, then there is no
fraudulent joinder’ and hence no basis for asserting diversity of
citizenship jurisdiction”. Howard, slip op. at 8 (emphasis added)
(citing Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th
Cir.), cert. denied, 510 U.S. 868 (1993)); Ross, slip op. at 8
(same).
Later, however, the district court stated: “The issue before
the Court is whether there is a possibility that liability could be
imposed on the non-diverse Defendants/agents based on the facts of
5 the case”. Howard, slip op. at 10 (emphasis added); Ross, slip op.
at 9 (same). The court concluded: because Plaintiffs could not
prevail on any of their claims against Individual Defendants, they
were fraudulently joined. Howard, slip op. at 30; Ross, slip op.
at 35.
Plaintiffs assert that the “reasonable basis” standard is not
correct; that, instead, the standard is whether “there is no
possibility that plaintiff [could] establish a cause of action”.
Burchett v. Cargill, Inc., 48 F.3d 173, 176 (5th Cir. 1995).
Plaintiffs also claim the district court shifted the burden of
proof and did not construe all factual disputes in their favor.
They contend Defendants only refuted their allegations with
allegations, and as such, Plaintiffs were not required to provide
evidence to refute them — that it is only after Defendants provide
evidence refuting Plaintiffs’ allegations that Plaintiffs must
provide evidence.
Our opinions have described the fraudulent joinder standard in
various ways. Recent opinions, however, have clarified that
standard. “Any argument that a gap exists between the ‘no
possibility’ and ‘reasonable basis’ of recovery language was
recently narrowed, if not closed”. Travis, 326 F.3d at 648. The
court must determine whether there is arguably a reasonable basis
for predicting that state law might impose liability. Great Plains
Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312
6 (5th Cir. 2002). This means that there must be a reasonable
possibility of recovery, not merely a theoretical one. Id.; Badon
v. RJR Nabisco, Inc., 236 F.3d 282, 286 n.4 (5th Cir. 2000)
(rejecting contention that theoretical possibility of recovery is
enough to support no fraudulent joinder, citing “reasonable basis”
standard); Griggs, 181 F.3d at 701 (“While the burden of
demonstrating fraudulent joinder is a heavy one, we have never held
that a particular plaintiff might possibly establish liability by
the mere hypothetical possibility that such an action could
exist”.).
Nonetheless, the burden of persuasion on those claiming
fraudulent joinder remains a heavy one. Travis, 326 F.3d at 648.
Along these lines, our court has recognized the similarity between
standards for Federal Rule of Civil Procedure 12(b)(6) (failure to
state claim) and fraudulent joinder. Id. See Great Plains Trust,
313 F.3d at 312. The scope of the inquiry for fraudulent joinder,
however, is broader than that for Rule 12(b)(6).
For fraudulent joinder vel non, it is well established that
the district court may “pierce the pleadings” and consider summary
judgment-type evidence. Travis, 326 F.3d at 648-49 (citing
Carriere v. Sears, Roebuck and Co., 893 F.2d 98, 100 (5th Cir.),
cert. denied, 498 U.S. 817 (1990)). In conducting this inquiry,
the district court “must also take into account all unchallenged
factual allegations, including those alleged in the complaint, in
7 the light most favorable to the plaintiff”. Travis, 326 F.3d at
649. In addition, the court must resolve all ambiguities of state
law in favor of the non-removing party. Id.
The district court properly applied these standards. It cited
the “reasonable basis” standard; and, although it also discussed
the “possibility” of recovery, it never looked for a “mere
theoretical possibility of recovery”. It also correctly noted that
it could “pierce the pleadings”, but that it must construe all
disputed questions of fact and ambiguities of law in Plaintiffs’
favor. Contrary to Plaintiffs’ assertion, it did not shift the
burden to them upon Defendants’ asserting contrary allegations.
Finally, it construed all allegations and evidence in Plaintiffs’
favor.
B.
The district court ruled that most of Plaintiffs’ claims were
time-barred; their claims had not been fraudulently concealed; and,
had they been, the time for bringing an action would be tolled. In
this regard, the court applied Mississippi’s general three-year
statute of limitations, MISS. CODE ANN. § 15-1-49(1) (“All actions
for which no other period of limitation is prescribed shall be
commenced within three (3) years next after the cause of such
action accrued, and not after”). E.g., Stephens v. Equitable Life
Assurance Society of the United States, __ So. 2d __, 2003 WL
8 1343254 at *3 (Miss. 20 March 2003) (applying statute to claim of
fraud and misrepresentation of sale of insurance).
Claims asserted three years after their accrual may be
actionable if they were fraudulently concealed and Plaintiffs could
not discover them with reasonable diligence. In that event, the
limitations period begins to run when the claims are discovered.
If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.
MISS. CODE. ANN. § 15-1-67. Along this line, Robinson v. Cobb, 763
So. 2d 883 (Miss. 2000), provides that, in order to toll the
limitations period, Plaintiffs must prove: “[Defendant] engaged in
affirmative acts of concealment”; and “though [Plaintiffs] acted
with due diligence in attempting to discover [the claim], they were
unable to do so”. Id. at 887 (emphasis added; internal quotation
and citation omitted).
Nevertheless, Plaintiffs contend the district court erred by
requiring them to prove an affirmative act of concealment and
assert that, in cases of fraud, no subsequent act of concealment is
necessary. Defendants counter that, although the Mississippi
Supreme Court has not ruled on this issue in the context of credit
insurance sales, it has established that a subsequent affirmative
act of fraudulent concealment is necessary to toll limitations
9 where the underlying claim is for fraud. Otherwise, the
limitations begin to run when Plaintiffs receive documents which,
if read, would lead to discovery of the claim.
Mississippi law is unambiguous: Plaintiffs must prove a
subsequent affirmative act of fraudulent concealment to toll the
limitations. Stephens, 2003 WL 1343254, held that the fraudulent
concealment doctrine applied to a fraud claim. There, plaintiffs
alleged defendants misrepresented that a life insurance contract
had vanishing premiums. The court stated that fraudulent
concealment was required to toll the limitations period; and,
because the terms were written in the policies, plaintiffs could
not show such concealment.
Further, in Reich v. Jesco, Inc., 526 So. 2d 550 (Miss. 1988),
plaintiff’s structure collapsed 12 years after construction.
Plaintiff sued the builder for negligence, strict liability, and
breach of warranty. He claimed the limitations period was tolled
because the faulty construction was not evident until after the
collapse. In holding the limitations period was not tolled, the
Mississippi Supreme Court cited two prior opinions: Dunn v. Dent,
153 So. 798 (Miss. 1934); and Lundy v. Hazlett, 112 So. 591 (Miss.
1927).
In each, defendant falsely represented that land conveyed to
plaintiff was larger than it was. Limitations were tolled in
Lundy, but not in Dunn. In Reich, the court distinguished these
10 cases by noting that, in Lundy, defendants made “express,
fraudulent representation[s] ... calculated to conceal ... after
completion of the sale”, Reich, 526 So. 2d at 552 (internal
quotation omitted); in Dunn, plaintiffs failed to show defendant
“did anything that could be construed as a concealment of the
falsity of the representation”, id. (internal quotation omitted).
As stated, Mississippi law is unambiguous. Pursuant to § 15-
1-67, Plaintiffs were required to prove an affirmative act of
fraudulent concealment post-completion of the insurance sales in
order to toll the statute of limitations.
C.
The district court held that, under Mississippi law, a
plaintiff has a duty to read a contract before signing it and
cannot reasonably rely on oral misrepresentations regarding its
terms. Accordingly, it held both that the statute of limitations
was not tolled because Plaintiffs’ claim was not fraudulently
concealed and that Plaintiffs did not state valid substantive
claims of fraudulent or negligent misrepresentation.
Plaintiffs maintain that, under Mississippi law, the rule that
a party must read a contract before signing it does not apply if
the party was induced by fraud or false representations in entering
into that contract. Defendants counter that, as a general rule,
Mississippi imputes knowledge of a contract to the signatory, and
a contracting party cannot reasonably rely on oral representations
11 that conflict with its written terms. Defendants accept that the
Mississippi Supreme Court has created a limited exception for cases
of fraud in factum, that is, where the character of the document is
misrepresented. Defendants assert that the exception does not
apply here, because Plaintiffs claim fraud in inducement, that is
misrepresentations about the terms of the contract.
“[A] party is under an obligation to read a contract before
signing it, and will not as a general rule be heard to complain of
an oral misrepresentation the error of which would have been
disclosed by reading the contract”. Godfrey, Bassett & Kuykendall
Architects, Ltd. v. Huntington Lumber & Supply Co., Inc., 584 So.
2d 1254, 1257 (Miss. 1991) (emphasis added). See Russell v.
Performance Toyota, Inc., 826 So. 2d 719, 726 (Miss. 2002) (“In
Mississippi, a person is charged with knowing the contents of any
document that he executes”.); Cherry v. Anthony, Gibbs & Sage, 501
So. 2d 416, 419 (Miss. 1987) (in the context of an insurance
policy, knowledge of contract terms is “imputed to [the contracting
party] as a matter of law”).
Stephens, 2003 WL 1343254, is highly persuasive authority that
the Mississippi Supreme Court would bar Plaintiffs’ claims. There,
plaintiffs sued an insurer and their agent, Bell, claiming Bell had
fraudulently represented that the life insurance policies they had
purchased had vanishing premiums. They brought their claims after
the limitations period, but asserted it was tolled because of
12 fraudulent concealment. Significantly, Stephens cited Godfrey,
Basset & Kuykendall for the following proposition:
[I]nsureds are bound as a matter of law by the knowledge of the contents of a contract in which they entered notwithstanding whether they actually read the policy. Any alleged oral agreement in this case does not have any effect on the written insurance contract.
2003 WL 1343254 at *4 (internal citation omitted). The court
concluded plaintiffs could not show fraudulent concealment because
the terms of the insurance contract unambiguously stated that
premiums did not vanish. Stephens and the actions at hand are
indistinguishable.
The Mississippi Supreme Court appears to apply two exceptions
to the rule that knowledge of written terms is imputed to contract
signatories: fraud in factum and equitable relief. Neither
exception applies here.
First, fraud in factum
is defined as “[m]isrepresentation as to the nature of a writing that a person signs with neither knowledge nor reasonable opportunity to obtain knowledge of its character or essential terms.” BLACK'S LAW DICTIONARY 661 (6th ed. 1990). Fraud in the inducement, which is broader, is defined as “[f]raud connected with [the] underlying transaction and not with the nature of the contract or document signed. Misrepresentation as to the terms, quality or other aspects of a contractual relation, venture or other transaction that leads a person to agree to enter into the transaction with a false impression or understanding of the risks, duties or obligations she has undertaken.” Id.
13 FDIC v. Fireman’s Ins. Co., 109 F.3d 1084, 1089 n.1 (5th Cir.
1997). Tracking the definition of fraud in factum, the Mississippi
Supreme Court has applied an exception to the imputed knowledge
rule:
If a person is ignorant of the contents of a written instrument and signs it under mistaken belief, induced by misrepresentation, that it is an instrument of a different character, without negligence on his part, the agreement is void.
Johnson v. Brewer, 427 So. 2d 118, 123 (Miss. 1983) (emphasis
added).
Although it used the word “induced”, it is clear from this
language that the Mississippi Supreme Court is discussing fraud in
factum. Here, this exception cannot apply because Plaintiffs do
not claim they misapprehended the character of the documents.
Second, Godfrey, Bassett & Kuykendall provides an exception
for equitable relief: “[F]ailure to read a contract before signing
it, although it may constitute negligence, will not bar equitable
relief to one who has executed a contract in reliance upon false
representations made to him by the other contracting party”. 584
So. 2d at 1259. See Turner v. Terry, 799 So. 2d 25, 36 (Miss.
2001) (citing Godfrey rule, but not applying because plaintiffs
failed to prove fraud).
This exception does not apply because Plaintiffs are not
seeking equitable relief. They seek damages. In any event, the
facts are distinguishable. There, a construction contractor failed
14 to read a contract into which he entered with the construction site
owner. The contract was drafted by a third-party architect.
Before bidding on the project, the contractor contacted the
architect to inquire whether the contract included a $9,000
contingency term that had to be included in the bid. The architect
said it did not. Inadvertently, the term was left in the contract
the contractor signed, and the owner refused to pay the contractor
$9,000. The contractor sued the third-party architect for
restitution based on misrepresentation. Here, Plaintiffs are suing
the signatories and drafters of the contracts.
D.
For the final issue, the district court ruled that, as a
matter of law, no fiduciary relationship existed between Individual
Defendants (insurance agents) and Plaintiffs. Plaintiffs contend
the district court erred because, at least arguably, a fiduciary
relationship could have existed. They primarily claim that
Mississippi case law has previously held a fiduciary relationship
exists between an insurance agent and an insured, by virtue of
their relationship. Further, they claim that, even if that is not
the case, the facts indicate Plaintiffs trusted the agents, which
brought about such a relationship.
“Under Mississippi law, there is no fiduciary relationship or
duty between an insurance company and its insured in a first party
insurance contract.” Langston v. Bigelow, 820 So. 2d 752, 756
15 (Miss. Ct. App. 2002) (quoting Gorman v. Southeastern Fidelity Ins.
Co., 621 F.Supp. 33, 38 (S.D. Miss. 1985)). See also General
Motors Acceptance Corp. v. Baymon, 732 So. 2d 262, 270 (Miss. 1999)
(“[T]he general rule is that there is no presumption of a fiduciary
relationship between a debtor and creditor.” (alteration in
original; quotation omitted)), cert. denied, 534 U.S. 944 (2001).
“In Mississippi, the purchase of insurance is deemed to be an arms’
length transaction.” Langston, 820 So. 2d at 756.
Langston rejected claims like those asserted here:
[Plaintiff] claims that the trust and dependence with regard to insurance is inherent in the very nature of the contract, thus creating the special fiduciary relationship.... We find, though, that [Plaintiff] is mistaken in his belief that this mere contractual obligation on the part of the insurer to pay a claim creates any special trust or fiduciary relationship.
Id. at 756-57.
A fiduciary duty may exist to procure insurance, if a bank
sells credit insurance. First United Bank of Poplarville v. Reid,
612 So. 2d 1131 (Miss. 1992), considered whether a fiduciary duty
arose when a bank employee agreed to purchase credit life insurance
for a loan applicant. The court concluded that the bank became an
insurance agent with a duty to procure insurance. Nonetheless,
because the certificate of insurance showed its terms on its face,
the bank did not have a duty to disclose any terms, even though the
loan applicants had not read the policy.
16 Although Plaintiffs point to affidavits in which some
Plaintiffs state they trusted and relied on Individual Defendants,
none of this evidence shows circumstances justifying such reliance.
Plaintiffs do not claim Defendants failed to procure insurance;
moreover, they do not claim Defendants violated the written terms
of the insurance contract or created a hidden scheme to defraud
them. Cf. American Bankers Ins. Co. of Florida v. Alexander, 818
So. 2d 1073 (Miss. 2001) (fiduciary duty between bank, credit
insurance company, and lendee arose where claim of “hidden scheme”
between bank and insurance company increasing insurance rates);
Lowery v. Guaranty Bank & Trust Co., 592 So. 2d 79 (Miss. 1991)
(fiduciary duty arose between bank and lendee/insured where long
history of dealings with bank aside from the note).
III.
For the foregoing reasons, because there is not arguably a
reasonable basis for predicting Individual Defendants could be
liable under Mississippi law, the remand-denials are AFFIRMED and
these cases are REMANDED for further proceedings consistent with
this opinion.
AFFIRMED; REMANDED.