United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III, UNITED STATES DISTRICT JUDGE
seeks remand of this tort action stemming from the attempted
repossession of her vehicle. Because the non-diverse
Defendant, along with two other Defendants, were not involved
in the events giving rise to suit, those Defendants are
improperly joined. Diversity jurisdiction exists, and
Plaintiff's motion to remand  is denied.
Facts and Procedural History
McDonald filed this suit in state court seeking damages for
mental anguish, anxiety, and humiliation, she allegedly
suffered when Defendants attempted to repossess her vehicle.
Compl. [3-1] at 1-3. It is undisputed that McDonald financed
the vehicle, the installment agreement was assigned to
Defendant Credit Acceptance, and Credit Acceptance referred
the account for repossession. See id. at 2;
Defs.' Mem.  at 2; Defs.' Resp.  at 3. The
question is whether Defendants AllStar Recovery, LLC
(“AllStar”), and its employees, Richard Harrigill
and Sterling Gay, participated in the attempted repossession.
asserts that they did and says the presence of Mississippi
resident Sterling Gay destroys diversity of citizenship. But
Credit Acceptance says McDonald's account was referred to
Brown & Associates Auto Recovery, Inc., for repossession,
not AllStar. So, it argues these Defendants were not involved
in the attempted repossession and are improperly joined. If
correct, the remaining parties (McDonald and Credit
Acceptance) are diverse, so diversity jurisdiction is proper.
McDonald declined to file a reply in support of her motion to
remand, and the time to do so has passed. Accordingly, the
Court deems the motion fully briefed.
Acceptance premises federal jurisdiction on 28 U.S.C. §
1332, which gives the Court jurisdiction over “civil
actions where the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interest and costs, and is
between . . . citizens of different States.” 28 U.S.C.
§ 1332(a)(1). That section requires complete diversity
between “all persons on one side of the controversy
[and] all persons on the other side.” Harvey v.
Grey Wolf Drilling Co., 542 F.3d 1077, 1079 (5th Cir.
2008) (internal quotation marks and citations omitted). Here,
the named parties are not completely diverse, but Credit
Acceptance raises an exception to the complete-diversity
rule: improper joinder.
test for improper joinder “examine[s] if there is
arguably a reasonable basis for predicting that the state law
might impose liability [against the non-diverse defendant] on
the facts involved.” Smallwood v. Ill. Cent. R.R.
Co., 352 F.3d 220, 223 (5th Cir. 2003). The Court
“ordinarily resolve[s] an improper joinder claim by
conducting a Rule 12(b)(6)-type analysis.” Gross v.
Balt. Aircoil Co., Inc., No. 3:13-CV-423-DPJ-FKB, 2014
WL 1153706, at *2 (S.D.Miss. Mar. 21, 2014). On the other
hand, in some cases, “a plaintiff has stated a claim,
but has misstated or omitted discrete facts that would
determine the propriety of joinder. In such cases, the
district court may, in its discretion, pierce the pleadings
and conduct a summary inquiry.” Smallwood v. Ill.
Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004). This
is such a case.
alleges that AllStar, Harrigill, and Gay were involved in the
attempted repossession on September 12, 2016, but Credit
Acceptance produced undisputed evidence that McDonald
misstated the facts. Specifically, Credit Acceptance says
McDonald's account was assigned to a different
repossession outfit, not AllStar.
Credit Acceptance submits the Declaration of Kelly Namel, a
legal assistant with Credit Acceptance, who confirms that the
account was referred to Brown & Associates Auto Recovery,
Inc. (“Brown”) for repossession on August 22,
2016. Namel Decl. [9-1] at 3. The account remained with Brown
until September 14, 2016, but repossession was unsuccessful.
Id. The account was never referred to AllStar.
Fox, General Manager of AllStar, also attests that no record
of an assignment during the relevant time period exists in
AllStar's system. Fox Aff. [9-3] at 2. Fox further states
that no employee recalls working on the task of repossessing
the vehicle. Id. at 3. And finally, Credit
Acceptance includes affidavits from Defendants Richard
Harrigill and Sterling Gay. Harrigill Aff. [9-4]; Gay Aff.
[9-5]. Harrigill affirms that he did not receive an
assignment to repossess the vehicle and did not participate
in attempts to repossess the vehicle. Harrigill Aff. [9-4] at
2. Gay, an owner of AllStar, confirmed Fox's assessment
that there was no record of an assignment to AllStar in its
system and further says that she was not personally involved
in the repossession of the vehicle in any way. Gay Aff. [9-5]
McDonald declined to file a reply, these evidentiary
submissions are uncontroverted. See Michels v. Safeco
Ins. Co. of Ind., 544 F. App'x 535, 539 (5th Cir.
2013) (holding that “plaintiff must produce at least
some controverting evidence”), abrogated on other
grounds by Int'l Energy Ventures Mgmt., L.L.C. v. United
Energy Grp. Ltd., 818 F.3d 193 (5th Cir. 2016); see
also Anderson v. Ga. Gulf Lake Charles, LLC, 342 F.
App'x 911, 917 (5th Cir. 2009) (finding improper joinder
based on defendant's affidavits denying involvement in
accident and noting plaintiffs' failure to “submit
any contradictory evidence”); Badon v. RJR Nabisco
Inc., 224 F.3d 382, 393 (5th Cir. 2000) (“We agree
with the district court that, considering defendants'
affidavits in light of the plaintiffs' lack of evidence,
there is no reasonable basis for predicting that plaintiffs
might establish liability in their conspiracy claim against
the in-state defendants.”) (internal quotations and
on these submissions, the Court finds McDonald misstated
facts in her Complaint-specifically, the involvement of
AllStar, Harrigill, and Gay in the attempted repossession.
These Defendants are improperly joined and should be
dismissed. See Int'l Energy Ventures Mgmt., LLC,
818 F.3d at 210 (holding that once a court determines that a
party has been improperly joined, that party must be
dismissed). Lastly, because ...