United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.
products-liability action is before the Court on the
parties' cross-motions. Defendant STIHL, Inc.,
(“STIHL”) filed a Motion to Dismiss  citing
lack of personal jurisdiction and failure to state a claim.
Plaintiff Melvin Rush responded by seeking remand to the
Circuit Court of Kemper County, Mississippi. See
Pl.'s Mot. . For the reasons that follow, Rush's
Motion to Remand  is denied, and STIHL's Motion to
Dismiss  is granted in part.
case stems from damages Rush suffered when a borrowed STIHL
chainsaw, Model 029, exploded while he was using it. Sometime
in late-2016, Rush alleges that he borrowed the chainsaw from
Russell Roberts. See Rush Dep. [24-1] at 10-11.
After completing his project, Rush attempted to return the
chainsaw to Roberts but was allegedly told to hold onto it
until Roberts asked for it. See Id. at 20.
Unfortunately, Roberts passed away before requesting the
chainsaw's return. Rush says no one from Roberts's
estate, administered by Defendant Sherline Watkins, or his
family asked for the chainsaw's return. See Id.
at 36-38. After Roberts's death, on or around May 20,
2017, Rush says the chainsaw exploded when he attempted to
start it. See Compl.  at 14. Rush suffered severe
filed suit in state court complaining that his injuries were
caused by STIHL's negligence and Roberts's failure to
warn Rush regarding the chainsaw's defective condition.
Id. at 7-12. STIHL removed the case to this Court
saying Rush improperly joined Defendants Watkins and Brian
Roberts, Roberts's next-of-kin. Upon removal to this Court,
STIHL argues the Court should dismiss Rush's Complaint
for lack of personal jurisdiction and because the Mississippi
Products Liability Act (“MPLA”) subsumes
Rush's negligence claims. Rush responded by seeking
Rush's Motion to Remand A. Standard STIHL premises
federal jurisdiction on 28 U.S.C. § 1332, under which a
district court has jurisdiction over civil actions between
“citizens of different States.” 28 U.S.C. §
1332(a)(1). The statute requires complete diversity between
all named plaintiffs and all named defendants. See,
e.g., Lincoln Prop. Co. v. Roche, 546 U.S. 81,
improper-joinder rule “is a narrow exception to the
rule that diversity jurisdiction requires complete
diversity.” Smallwood v. Ill. Cent. R.R. Co.,
352 F.3d 220, 222 (5th Cir. 2003). Improper joinder can be
established by showing the “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,
646- 47 (5th Cir. 2003) (citing Griggs v. State Farm
Lloyds, 181 F.3d 694, 698 (5th Cir. 1999)). In
evaluating a claim of improper joinder, the
“appropriate test is whether there is any reasonable
basis for predicting the plaintiffs might be able to recover
against . . . the in-state defendant.” Jones v.
Gen. Motors Corp., No. 3:06-CV-608-DPJ-JCS, 2007 WL
1610478, at *1 (S.D.Miss. June 1, 2007) (quoting Love v.
Ford Motor Co.., 212 Fed.Appx. 292, 294 (5th Cir.
district court should ordinarily resolve an improper-joinder
claim by conducting a Rule 12(b)(6)-type analysis.
Smallwood v. Ill. Cent. R. Co., 385 F.3d 568, 573
(5th Cir. 2004) (“Smallwood II ”).
“If a plaintiff can survive a Rule 12(b)(6) challenge
for failure to state a claim, there is ordinarily no improper
joinder.” Davidson v. Georgia-Pacific, L.L.C,
819 F.3d 758, 765 (5th Cir. 2016). But when “a
plaintiff has stated a claim, but has misstated or omitted
discrete facts that would determine the propriety of joinder
. . . the district court may, in its discretion, pierce the
pleadings and conduct a summary inquiry.” Smallwood
II, 385 F.3d at 573.
removed this case from state court alleging that Rush
improperly joined the In-State Defendants. Specifically,
STIHL says Rush's claims against the In-State Defendants
are improperly joined because: (1) a defendant who does not
manufacture or sell a product is not liable for product
defects when they gratuitously loan an item; (2) the MPLA
subsumes Rush's negligence claims; (3) the claim is
barred under Mississippi's survival statute since no
claim accrued before Roberts's death; (4) Rush filed suit
before the 90-day moratorium on claims against an estate
passed; and (5) Brian Roberts is improperly joined because no
cause of action exists against a decedent's next-of-kin
under Mississippi law. See Notice of Removal  at
12, 14. Seeking remand, Rush argues that Defendant Watkins is
properly joined as the administrator of Roberts's estate
and that his pleaded claims are valid. See
generally Pl.'s Mot. .
furtherance of these arguments, STIHL requested leave to
conduct limited discovery. See Def.'s Mot. .
After a telephonic conference, the Court granted STIHL's
motion and admonished the parties:
Looking at the Complaint itself, the Court agrees that
discovery is necessary to address omitted facts. The core
allegation against Roberts is that he “had actual or
constructive knowledge of the defective nature of the subject
gas-powered chainsaw” yet “fail[ed] to warn
Plaintiff Rush.” Compl.  at 17. If the case were
presented to the Court on the strength of this pleading,
there would be a difficult question whether Plaintiff has
stated a plausible claim related to Roberts-even assuming the
claim survived the more technical legal issues STIHL
advances. “[T]he tenet that a court must accept as true
all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Limited
discovery regarding Roberts's knowledge and actions
should help answer the questions the Court anticipates.
Jan. 11, 2018 Order  at 2-3. Accordingly, the Court
allowed “[e]ach side [to] propound 10 interrogatories
and 10 requests for production of documents. They may also
conduct depositions if deemed appropriate.”
Id. at 3.
that this discovery has been completed, the Court is still
left solely with Rush's conclusory statement that Roberts
“had actual or constructive knowledge of the defective
nature of the subject gas-powered chainsaw.” Compl. 
at 17. Rush argues that Roberts had knowledge that the
chainsaw was defective because two recall notices, from 1994
and 1997 respectively, appear on the U.S. Consumer Product
Safety Commission's website. See Pl.'s Reply
 at 4. Even so, Rush fails to plead any facts suggesting
that Roberts had cause to check this website or was otherwise
on notice of this recall. Cf. Fruge v. Ethicon US,
LLC, No. CV 16-149-JWD-EWD, 2017 WL 1807610, at *15
(M.D. La. Feb. 24, 2017) (denying summary judgment where
material issue of fact existed whether plaintiff was on
notice that recall was posted on ...