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Breazeale v. Young

United States District Court, Fifth Circuit

October 10, 2013



SHARION AYCOCK, District Judge.

Before the Court is Plaintiff's Motion to Remand [12]. Upon due consideration of the motion, responses, rules, and authorities, the Court finds as follows:

Factual and Procedural Background

Plaintiff Berlon Breazeale commenced this suit in the Circuit Court of Humphreys County, Mississippi, seeking to recover damages related to the purchase of a termite protection plan. On July 21, 2011, Breazeale entered into a contract with the Terminix Defendants wherein he agreed to pay $1070.00 for an initial treatment of his home against termites and which would be renewed annually upon payment of a renewal fee in the amount of $205.44. Breazeale alleges that prior to signing the contract with Terminix, Ronald Young orally represented to him that Terminix would re-treat his home and repair any damage should live termites later be found, provided the contract was in effect at the time. Breazeale paid the initial $1070.00 fee and Terminix treated his home against termites.

Breazeale notified Terminix in April 2012 of the presence of live termites and requested that Terminix re-treat his home and pay for the damages caused by the termites. Terminix sent a representative to Breazeale's home who confirmed the presence of live termites. However, Terminix did not pay for any related damage to the property. Breazeale brought suit against Defendants on March 22, 2013 seeking compensatory and punitive damages. Defendants removed [1] to this Court on the basis of diversity jurisdiction claiming Ronald Young and Hal Johnson, the only in-state defendants, were improperly joined. Breazeale has filed a Motion to Remand [12].[1]


Federal courts are courts of limited jurisdiction. Epps v. Bexar-Medina-Atascosa Counties Water Improvement Dist. No. 1 , 665 F.2d 594, 595 (5th Cir. 1982). The Judiciary Act of 1789 provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). Original federal diversity jurisdiction exists "where the matter in controversy exceeds the sum or value of $75, 000.00, exclusive of interest and costs, and is between... citizens of different States." 28 U.S.C. § 1332(a); Addo v. Globe Life and Accident Ins. Co. , 230 F.3d 759, 761 (5th Cir. 2000).

"To remove a case based on diversity, the diverse defendant must demonstrate that all of the prerequisites of diversity jurisdiction contained in 28 U.S.C. § 1332 are satisfied." Smallwood v. Ill. Cent. R. Co. , 385 F.3d 568, 572 (5th Cir. 2004). As the Fifth Circuit has stated, "where an out-of-state defendant removes an action from state to federal court, the burden is upon the removing party to plead a basis for federal jurisdiction." B., Inc. v. Miller Brewing Co. , 663 F.2d 545, 549 (5th Cir. 1981) (internal citations omitted). Further, where, as in the case at bar, "there have been allegations of fraudulent joinder, ' it is clear that the burden is upon the removing party to prove the alleged fraud.'" Id . (internal citations omitted).

After removal of a case, the plaintiff may move for remand, and "[if] it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). "[T]he threshold question for [the Court] is whether there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.'" Gasch v. Hartford Acc. & Indem. Co. , 491 F.3d 278, 281 (5th Cir. 2007) (quoting Smallood, 385 F.3d at 573). The Court's analysis is not to "determine whether the plaintiff will actually or even probably prevail on the merits of the claim, but [to] look only for a possibility that the plaintiff might do so." Guillory v. PPG Indus., Inc. , 434 F.3d 303, 308-09 (5th Cir. 2005). "This possibility, however, must be reasonable, not merely theoretical." Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co. , 313 F.3d 305, 312 (5th Cir. 2002).

"[B]ecause the effect of removal is to deprive the state court of an action properly before it, removal raises significant federalism concerns, which mandate strict construction of the removal statute." Carpenter v. Wichita Falls Indep. Sch. Dist. , 44 F.3d 362, 365-66 (5th Cir. 1995) (internal citations omitted). Moreover, the Fifth Circuit has held that "[a]ny ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand." Manguno v. Prudential Prop. & Cas. Ins. Co. , 276 F.3d 720, 723 (5th Cir. 2002) (citing Acuna v. Brown & Root, Inc. , 200 F.3d 335, 339 (5th Cir. 2000)).

Analysis and Discussion

Defendants argue that Plaintiff has alleged only a breach of contract claim and has failed to allege any duty on the part of the in-state defendants that is not related to the contract at issue.[2] Mississippi law is well settled that an authorized agent acting on behalf of a disclosed principal is not personally liable for a breach of duty or contract by the principal. See Thompson v. Nationwide Mut. Ins. Co. , 971 F.Supp. 242, 243 (N.D. Miss. 1997); Gray v. U.S. Fid. & Guar. , 646 F.Supp. 27, 29 (S.D.Miss. 1986); Gray v. Edgewater Landing, Inc. , 541 So.2d 1044, 1047 (Miss. 1989); Thames & Co. v. Eicher , 373 So.2d 1033, 1035 (Miss. 1979). Whereas it is undisputed that Young and Johnson were not parties to the contract, but were merely agents acting for a disclosed principal, there is no reasonable basis for the Court to predict that Plaintiff would be able to maintain such claims against them.

However, "an agent for a disclosed principal can be held personally liable for his own tortious acts committed within the scope of his employment." Hart v. Bayer Corp. , 199 F.3d 239, 247 (5th Cir. 2000).

[A]n agent ... merely because of his relationship as an agent... or because of the additional fact that he has acted at the direction or command of his employer, cannot escape or exempt himself from liability to a third person for his own negligence or his own positive wrongs, ...

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