United States District Court, N.D. Mississippi, Aberdeen Division
SHARION AYCOCK U.S. DISTRICT JUDGE.
Citifinancial Mortgage Company, Inc., HSBC Mortgage Services,
Inc., and Caliber Home Loans, Inc., (“the Removing
Defendants”) removed this case from the Prentiss County
Chancery Court on April 29, 2016. Plaintiffs Howard Dewayne
Pollard and Betty Jane Pollard timely filed this Motion to
Remand to State Court  on the basis that Fidelity
National Loans, Inc., is a non-diverse defendant as it is
considered a citizen of Mississippi, same as Plaintiffs. The
Removing Defendants insist that Fidelity National Loans,
Inc., is improperly joined, thus making jurisdiction in this
and Procedural Background
contend that they borrowed $37, 500 from Fidelity to build an
addition onto their home in 1998. Unbeknownst to Plaintiff,
however, Fidelity recorded the loan to be for $246, 932.68 in
2000. Some months later the debt was reduced to $79, 685.58.
Plaintiffs refinanced in 2003, with Citifinancial being paid
$81, 880.01. Plaintiffs claim the loan is now owned by
Caliber for an amount approximately three times what the
initial loan was for - over $100, 000. Caliber sought to
foreclose Plaintiffs' home in March of 2016.
bring this suit alleging fraudulent misrepresentations by
Fidelity as to the amount of money Plaintiffs are indebted.
They assert the fraudulent loan balance was concealed from
Plaintiffs until after Caliber attempted to foreclose on the
property in question. Plaintiffs also assert a claim for
fraudulent inducement for misleadingly instructing Plaintiffs
to sign refinancing paperwork in order to keep their home.
Their third claim is for fraudulent concealment based on
their assertion that Fidelity kept the initial paperwork
thereby concealing that they were holding a loan for more
than they should. Plaintiffs further claim the Defendants
were negligent, unjustly enriched, and negligently or
intentionally inflicted emotional distress. Plaintiffs seek
to quiet and confirm title due to the fraud allegedly
perpetuated on Plaintiffs.
Defendants seek dismissal of Fidelity as a defendant under
the theory that Fidelity was improperly joined as the statute
of limitations against that entity has expired.
courts are courts of limited jurisdiction, having only the
authority endowed by the Constitution and that conferred by
Congress.” Halmekangas v. State Farm, 603 F.3d
290, 292 (5th Cir. 2010) (citation and quotation marks
omitted). District courts have original jurisdiction over
civil actions where the amount in controversy exceeds $75,
000, exclusive of costs and interest, and the matter is
between citizens of different states. Cuevas v. BAC Home
Loans Servicing, LP, 648 F.3d 242, 248 (5th Cir. 2011)
(citing 28 U.S.C. § 1332). “[A]ny civil action
brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed . .
. 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).
“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.” Church v. Nationwide Ins.
Co., No. 3:10-cv-636, 2011 WL 2112416, at *2 (S.D.Miss.
May 26, 2011) (quoting Guiterrez v. Flores, 543 F.3d
248, 251 (5th Cir. 2008)); see Williams v. Brown,
No. 3:11-cv-273, 2011 WL 3290394, *3 (S.D.Miss. July 28,
2011) (“Doubts about whether federal jurisdiction
exists following removal must be resolved against finding
jurisdiction.”). Defendants are entitled to remove to a
federal forum unless an in-state defendant has been properly
joined. Smallwood v. Illinois Cen. R.R. Co., 385
F.3d 568, 573 (5th Cir. 2004). Where the Court finds that a
defendant has been improperly joined, it “may disregard
the citizenship of that defendant [for diversity purposes],
dismiss the non-diverse defendant from the case, and exercise
subject matter jurisdiction over the remaining diverse
defendant.” Flagg v. Stryker Corp. 819 F.3d 132,
136 (5th Cir. 2016) (citation omitted).
establish a claim for improper joinder, the party seeking
removal must demonstrate either “(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.” 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 here is the second prong, wherein the
court must evaluate “whether the defendant has
demonstrated 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
district court to predict that the plaintiff might be able to
recover against an in-state defendant.”
McDonal, 408 F.3d at183 (quoting Smallwood,
385 F.3d at 573). “If no reasonable basis of recovery
exists, a conclusion can be drawn that the plaintiff's
decision to join the local defendant was indeed fraudulent,
unless that showing compels dismissal of all
joinder issues are ordinarily resolved by conducting a Rule
12(b)(6)-type analysis. Alternatively, at its discretion and
in “hopefully few” cases, the court may opt to
pierce the pleadings and conduct a summary inquiry where the
plaintiff has stated a claim, but omitted or misstated
discrete facts. McDonal, 408 F.3d at 183; see
also Boone v. Citigroup Inc., 416 F.3d 382, 388 (5th
Cir. 2005) (“A motion to remand is normally analyzed
with reference to the well-pleaded allegations of the
complaint, which is read leniently in favor of remand under a
standard similar to Rule 12(b)(6)”).
present case, the Court finds no justification for converting
the inquiry into a summary review and therefore analyzes the
Plaintiffs' complaint under the more lenient Rule
12(b)(6) framework. Smallwood, 385 F.3d at 574
(noting that the court's inquiry at this stage should be
guided by “simple and quick exposure of the chances of
the claim against the in-state defendant”). Thus, the
Court asks whether there is any reasonable, opposed to merely
theoretical, basis to predict that state law might impose
liability on the facts involved. Travis v. Irby, 326
F.3d 644, 649 (5th Cir. 2003); Smith, 278 F.
App'x at 379.
plaintiff fails to state a claim for relief under Rule
12(b)(6) when the complaint does not contain “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Such
analysis must be done in the context of Rule 8's notice
pleading standard, which requires only “a short and
plain statement of the claim showing that the pleader is
entitled to relief in order to ‘give defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.'” Twombly, 550 U.S. at 554-55,
127 S.Ct. 1955 (quoting Fed.R.Civ.P. 8). “Ordinarily,
if a plaintiff can survive a Rule 12(b)(6) challenge, there
is no improper joinder.” Smallwood, 385 F.3d
at 573. “As a practical matter, the negative corollary
of this statement will often hold true: if a plaintiff's
claims against in-state defendants cannot survive a Rule
12(b)(6) analysis, the finding of improper joinder
follows.” Druker v. Fortis Health, Civil
Action No. 5:06-cv-00052, 2007 WL 38322, *7 (S.D. Tex. Jan.
4, 2007); Powell v. Target Corp., Civil Action No.
3:16cv127-CWR-LRA, 2016 WL 4573974, *3 (S.D.Miss. Sept. 1,
2016). “After all disputed questions of fact and all
ambiguity in the controlling state law are resolved in favor
of the non-removing party, the court determines whether that
party has any possibility of recovery against the party whose
joinder is questioned.” Kling Realty Co. Inc. v.
Chevron USA Inc., 306 F. App'x 24, 27 (5th Cir.
2008) (quoting Carriere v. Sears Roebuck & Co.,
893 F.2d 98, 100 (5th Cir. 1990)).