### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-60618

LEONORA MURRAY; STEPHEN MURRAY, SR.; M.B., a minor, by and through her maternal grandmother, Leonora Murray, Plaintiffs - Appellants
v. GENERAL MOTORS, L.L.C.; SKINNER CHEVROLET BUICK PONTIAC GMC, Defendants - Appellees

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:10-CV-188

Before KING, HIGGINBOTHAM, and HAYNES, Circuit Judges. PER CURIAM: * Leonora Murray, S t e phen Murray, Sr., and M.B. (collectively, 1 “Appellants”) appeal the district court’s decision dismissing their claims against Skinners Chevrolet Buick Pontiac GMC Truck, Inc. (“Skinners”), and denying

2 U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D June 5, 201 2 Lyle W . Cayce Clerk

Pur sua nt to 5 T H C IR

. R. 47. 5, thecourthas det erm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4.

M. B. is a m inor

. Leo noraM urr ay, M. B.’ s grand mo ther , fil ed sui t on M. B.’ s behalf

. 1
Altho ugh App ellant s nam ed this enti ty as “Sk inner Chevrol et Buick Ponti ac GM C,” 2 thei r brie f cor rec ts the nam e to the nam e given in the text

. Thus, w e u se“ Sk inner s” r athe r Case: 11-60618 Document: 00511877213 Page: 1 Date Filed: 06/05/2012No. 11-60618

their motion to remand the case to state court. The district court concluded that Skinners—the only non-divers e d efendant—was improperly joined to defeat diversity jurisdiction. Appellants argue that they pleaded valid claims against 3 Skinners; therefore, they contend that the district court improperly denied their motion to remand the case to state court and dismissed their claims against Skinners. We AFFIRM and remand for further proceedings as appropriate.

I. FACTS AND PROCEDURAL HISTORY S t e p h e n Murray, Sr., and Leonora Murray (the “Murrays”) purchased a new, 2006 model Chevy HHR (the “vehicle”) from Skinners in 2005. The vehicle

was manufactured by General Motors (“GM”). Stephen Murray, Sr., alleges that he purchased the vehicle because the salesman at Skinners told him that it was an “economical, dependable, and good car.” He also alleges that the sticker on the vehicle stated that it had airbags and the salesman told him it had power steering. Appellants allege that the Murrays took the vehicle to Ski nners on several occasions for service and that GM issued several r e c a l l notices on the vehicle, but Skinners failed to notify them of such notices. I n 2 009, Leonora Murray was driving the vehicle when the left front

s p i n dle broke, the steering mechanism failed, and the front airbags fail e d t o deploy. The vehicle veered off of the road, hit several objects, and flipped over, injuring Leonora Murray and M.B. Appellants filed suit against Skinners and GM in state court. GM filed a notice of removal, alleging that Appellants improperly joined Skinners for
purposes of defeating diversity jurisdiction. GM is a c itizen of Delaware, and

than “Sk inner” as the sho rth and ref ere nce fort his en tit y. The ter m “im pr ope r joind er” has als o be e n ref err ed to as “f

raud ulent joind er” ; 3 how ever, we have pr evious ly ado pt ed the ter m “‘i mp rop er joind er’ as bei n g m ore cons ist ent wi th the s tat utor y language than the te rm‘fra udul ent joinder ’

. . . .” Sma ll wo od v. Ill. Cent. R.R

. Co. , 385 F.3d568 , 571 n.1 (5t h Cir

. 2004) ( en banc)

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Skinners and Appellants are citizens of Mississippi. GM and Skinners also filed separate motions to dismiss Skinners from the suit. The parties extensivel y b riefed the issues before the district court, and GM, Skinners, and Appella n t s offered additional evidence to support their respective claims. After considering t his evidence and the parties’ arguments, the district court concluded that because Appellants would be un ab le to establish a cause of action against Skinners, Ap p ellants’ motion to remand would be denied. The district court granted Skinners’s and GM’s motions to dismiss Skinners from the suit. Appellants requested that t h e d i s t rict court certify its order dismissing Skinners and denying their motion to remand a s a final order pursuant to Federal Rule of Civil Procedure 54(b), and the district court granted their motion and stayed the case pending the outcome of this ap p eal. Appellants timely appealed. II. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction to r e view the district court’s order, which was certified as final under Rule 54(b), pursuant to 28 U.S.C. § 1291. See United S t a t e s v. Caremark , 634 F.3d 808, 814 (5th Cir. 2011). Although Appellant s claim that the district court did not have jurisdiction over this suit, as complete diversity was lacking, federal courts generally have jurisdiction to review their

own jurisdiction. See United States v. Ruiz , 536 U.S. 622, 628 (2002). Thus, we have jurisdictio n to d et er m in e whether the district court properly concluded that it had diversity jurisdiction pursuant to 28 U.S.C. § 1332. We review th e d e n ial of a motion to remand de novo. Guillory v. PPG Indus., Inc. , 434 F.3d 303, 308 (5th Cir. 2005). To determine whether a defendant has been improperly joined, the distric t c o u r t “may conduct a Rule 12(b)(6)-ty p e a n a l ysis, looking initially at the allegations of the complaint to determine whether the complaint states a claim under state law against the instate defendant.” Smallwood v. Ill. Cent. R.R. Co. , 385 F.3d 568, 573 (5th Cir.

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2004) (en banc). If the plaintiff can survive a Rule 12(b)(6) challenge, ordinarily, there is no improper joinder. Id. However, if the complaint states a claim, but

“has misstated or omitted discrete facts that would determine the propriety o f joinder

. . . the district court may, in its d i s c r e t i o n , pierce the pleadings and conduct a summary inquiry.” Id. “In deciding whether a party was improperly joine d , we resolve all contested factual issues and ambiguities of state law in favor of the plaintiff.” Gasch v. Hartford Accident & Indem. Co. , 491 F.3d 278, 281 (5th Cir. 2007). Removal rai s e s f ederalism concerns because the effect of removal is to deprive a state court of jurisdiction; therefore, we strictly construe the removal statute, resolving “any doubt about the propriety of removal

. . . in favor of remand.” Id. at 281-82. Applying this analysis, we turn to whether Appellants have established the possibility of recovery from Skinners on any of their claims. III. DISCUSSION Ordinarily, a defendant cannot remove a lawsuit to federal court under 28 U.S.C. § 1332 absent complete diversity between plaintiffs and defendants. See Whalen v. Carter , 954 F.2d 1087, 1094 (5t h Cir. 1992) (“The diversity statute requires complete diversity of citizenship: a district court can n o t exercise diversity jurisdiction if one of the plaintiffs shares the same state citizenship as

one of the defendan ts.” (internal quotation marks omitted)). If, however, the removing party can show that a non-diverse defendant has been improperly joined to defeat diversity jurisdiction, the case may be removed. Cf. Salazar v. Allstate Tex. Lloyd’s, Inc. , 455 F.3d 571, 574 (5th Cir. 2006) (noting that “under the fraudulent joinde r doctrine, federal removal jurisdiction premised on diversity cannot be defeated by the presence of an improperly-joined nondiverse and/or in-state defendant”). There are two ways to establish improper joinder: “(1) actual fraud in the pleading of jurisdictional fac t s , or (2) inability of the plain t i f f to establish a cause of action against the non-diverse party in state

4 Case: 11-60618 Document: 00511877213 Page: 4 Date Filed: 06/05/2012No. 11-60618

court.” Smallwood , 385 F.3d at 573 (internal quotation marks omitted). In this

cas e , GM—the removing party—argued that there was no possibility that Appellants could recover against Skinners and that, therefore, S kinners was i m p ro p e rly j o in e d to d efeat diversity jurisdiction. We analyze each of Appellants ’

causes of action in turn to determine whether i t e s t ab l i shed the possibility of recovery against Skinners. A. Express Warranty Appellants claim that the district court erred in refusing to remand their case and in dismissing their express warranty claim against Skinners, as they contend that there is a possibility that they could recover from Skinners on this claim. The district court found that Skinners could not be liable for breach of an express warranty, as there was no agreement between Skinners and Appellants; rather, the only express warranty was made by GM to Appellants. 4 We hold the district cou r t did not err in finding that there was no possibility of recovery against Skinners on Appellants’ express warranty claim. Appellants essentially contend that Skinners is liable for personal injury damages for breaching the manufacturer’s wa rr a n t y. In an attempt to show Skinners’s involvement, they contend that one of Skinners’s s a l e smen “embrac[ed] GM’s warra n t y . . . .” However, under Mississippi law, Skinners

App ellant s als o rais e an argum ent about an exten ded w a r rant y they pur chas ed 4 thr ough Sk inner s. App el l ants clai m that they we re tol d that the exten ded wa rra nty wo uld
c o s t $ 1 , 500, but they late r rec eived a bill for $3,0 00. Firs t, we note that App ellant s a r e n o t clai mi ng dam ages for allege d overb illing or fail ure to rep air unde r an exten ded wa rra nty; they
are clai mi ng dam ages for per so nal injury. We fai l to se e how this allegat ion coul d give ris e to suc h a dam ages aw ard

. Add itio nally, even if they sought th e pro perdama ges f or thebreach of this wa rra nty, we canno t cons ide r App ellant s’ cl a i m s r e l ated to the exten ded wa rra nty pur chas ed thr ough Sk inner s. The com plai nt fil ed in st ate cour t (andne ver ame nded) fai led to me ntio n an exten ded wa rra n t y . We may not cons ide r pos t- rem oval fil ings “to the exten t that they pr es ent new caus es of act ion or theo ries not rais ed in the cont roll ing pet itio n in st ate cour t. ” Gr iggs v. State Farm Lloy ds , 181 F.3d 694, 700 (5t h Cir. 1999)

. T h e t h e o r y t hat App ellant s rais ed conc e r n i n g t h e exten ded wa rra nty wa s not rais ed in the pet itio n fil ed in st ate co urt ; the ref

ore , w e cannotcons ide r this aspe ct of Appel lants ’ expr es s w arr anty clai m. 5 Case: 11-60618 Document: 00511877213 Page: 5 Date Filed: 06/05/2012No. 11-60618

c a n not be held liable for “embracing” the express warranty made by t h e manufacturer, even if Skinners’s salesman used the manufacturer’s warranty to sell the car. See Wright v. Paul Moak Pontiac, Inc. , 828 So. 2d 201, 202 (Miss. Ct. App. 2001). In Wright , a Mississippi appellate court found that despite the fact that a car salesman used the manufacturer’s warranty as a “sales tactic,” he

was not acting “in any capacity other than as an agent of [the m a n u f a c t u r e r]” and, there f

o r e , t h e dealership could not be held liable f or breach of an express warranty. Id. The cases cited by Appellants to support their position that a car dealer can be held liable for breaching a m anuf actur e r’ s w arr anty are inapposite. See Forbes v. Gen. Motors Corp. , 935 So. 2d 869, 875 (Miss. 2006) (addressing a manufacturer’s liability for breach of its own express warranty); Fitzn e r PontiacBuick-Cadillac, Inc. v. Smith , 523 So. 2d 324, 326 (Miss. 1988) (discussing a car dealer’s alleged liability for a salesman’s statement that the dealer would fix an issue with a used car). Further, section 11-1-63(h) of t he Mississippi Code provides that an innocent seller “shall no t b e liable” for any action pursuant to section 11-1- 63(a)—which includes a claim for breach of an expre s s warranty—unless the seller e i t h e r : ( 1) “exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought”; (2) “altered or modified the product, and the alteration or modification was a substantial factor in causing the harm fo r w h i ch recovery of damages is sought”; or (3) “had actual or constructive knowledge of the defective condition of the product at the time he supplied the product.” M I S S

. C O D E AN N

. § 11-1-63(h) (1972 & Supp. 2011). 5

Sec tio n 11-1 -63 of the Mis sis sip pi Code is als o ref err ed to as the Mis sis sip pi Prod uct s 5 Liabil i ty Act (“MPLA” ). Subs ect ion (h) of the MPLA is ref err ed to as the innoc ent se ller
exem pt ion. 6 Case: 11-60618 Document: 00511877213 Page: 6 Date Filed: 06/05/2012No. 11-60618

Appellants contend that the “innocent seller” exemption does not prohibit them fr o m bringing an express warranty claim pursuant to the Mississippi Uniform Commercial Code (the “Mississippi UCC”). Howeve r , a l t hough the 6 Mississippi Supreme Court has held that the MPLA does not preclude a claim for breach of warranty, see McKee v. Bowers Window & Door Co. , 64 So. 3d 926, 940 (Miss. 2011) (holding that the MPLA “does not abrogate

. . . any warranty claims” (citation and internal quotation marks omitted)), it is still subject to the innocent seller exemption in a products liability action. See Gardner v. Cooksey , No. 2:1 1

- c v - 2 5 5 K S, 2012 WL 968026, at *3-4 (S.D. Miss. Mar. 21, 2012). Appellants are seeking damages for t h e injuries to Leonora Murray and M.B. that were allegedly caused by the failu r e of the steering mechanism and the airbags. This claim is s ubj e ct to the MPLA limits by the express terms of the Mississippi UCC. Because we hold that Appellants’ cl ai m as pleaded falls under 7 the MPLA, the innocent seller exemption applies. Indeed, the Mississippi legislature specif i c a lly provided in section 11-1- 63(h) that “[i]t is the intent of this section to immunize innocent sellers who are not actively negligent, but instead are mere conduits of a product.” M I S S

. C O D E AN N

. § 11-1-63(h). Although Appellants pleaded that Skinn e r s w a s not just a

c o nduit of the vehicle, their vague and conclusory allegations allowed the district court to pierce the pleadings to conduct a summary inquiry. See Smallwood , 385 F.3d at 573. To support its argument that it was a mere conduit of the vehicle, Skinners provided an affidavit stating that it “did not design or manufacture the car,” “alter or modify the air bags or stee r i ng,” or “install” or “test the air bags

Mis sis sip pi ado pt ed the Unif orm Com me rci al Code

. See M ISS

. C ODE ANN

. § 75-1 -101 6 et s eq. (197 2).

Sec tio n 75-2 -715 of the Mis sis sip pi UCC—l abele d “Buyer ’s Incid e n t a l a n d 7 Cons equent ial Da m a g e s ”

— excep ts the mat ter s “ot herw ise pr ovide d in” § 11-1 -63 fr om the genera l rule that cons equent ial dam ages availabl e to a buyer for a se ller ’s brea ch of wa rra nty inclu de “injur y t o [ a] per so n.” 7 Case: 11-60618 Document: 00511877213 Page: 7 Date Filed: 06/05/2012No. 11-60618

and steering

. ” An employee of Skinners also stated in her affidavit that “Skinners Chevrolet made no e x p r ess warranties or other express factual representations about the subject c a r, other than as a mere conduit of information from the manufacturer of the car.” Appellants offered no evidence to show that Skinners was anything more than a conduit for the vehicle. Thus, for the reasons stated above, we find that Appellants could not recover from Skinners on a breach of an express warranty claim. B. Implied Warranty Appellants next contend that they have established a possibi lity of
recovery on their breach of implied warranty claim, because the MPLA does not prevent a plaintiff from bringing such a claim. See McKee , 64 So. 3d at 940. The district court, relying on section 11-1-63(h), held that Skinners was immune f r o m Appellants’ breach of implied warranty claim because it was an innocent seller. As we discussed above, we agree that the MPLA did not abrogate all UCC warranty claims, but the innocent seller exception applies here as well. In sum, we agr e e w i t h the district court—and with four other federal d i s t r i c t courts in Mississippi—that if the plaintiff seeks damages for persona l injury as a result of an allegedly defective product, the innocent seller exemption applies to a breach of implied warranty claim. See Gardner, 2012 WL 968026, at *3-4; Jenkins v. Kellogg Co. , No. 4:08-cv-121, 2009 WL 2 0 0 5 1 6 2 , at *4 (N.D. Miss. July 6, 2009); Land v. Agco Corp. , No. 1:08-cv-012, 2008 WL 405622 4, at *3 (N.D. Miss. Aug. 25, 2008); Jones v. Gen. Motors Corp. , No. 3:06-cv-00608, 2007 WL 1610478, at *3, *5 (S.D. Miss. J u n e 1, 2007). For this reason, we conclude that the district court properly held that Appellants had no possibility of recovering against Skinners on a breach of implied warranty claim. C. Fraudulent Misrepresentation Appellants argue that the district court erred in holding that they failed to plead their fraudulent misrepr e s e ntation claim with particularity and in

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dismissing the claim. Federal Rule of Civil P r o c e d u r e 9(b) requires a plaintiff to “state with particularity the circ u m s t a n c es constituting fraud or mistake.” S t a t e - l a w fraud claims are subject to this requirement. See Sullivan v. Le o r 8 Energy, LLC, 600 F.3d 542, 550-51 (5th Cir. 2010). “To plead fraud adequately, the plaintiff must ‘specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent.’” Id. at 551 (quoting ABC Arbitrage v. Tchuruk , 291 F.3d 336, 350 (5th Cir. 2002 )). Here, the only allegations in the complaint concerning fraud stated th a t “the defendants negligently, gross [sic] negligently, and frau d u l ently misrepresented and made omissions to the public, including the plaintiffs, about the safety and maneuverability of the 2006 Chevrolet HH R a u t o mobile.” The complaint contains no description s of the specific statements that Appellants claim were fraudulent, or when and where such stat e m e n t s were made. The 9 complaint is entirely devoid of spe c i fic allegations about Skinners’s alleged fraudulent misrepresentation. Therefore, we conclude that the district court did

n o t e r r in finding that Appellants failed to demonstrate any possibility of recovery on their fraudulent misrepresentation claim. 1 0

Mis sis sip pi Rule of Civil Proc edur e 9 (b) c onta ins a sim ilarr equir em ent. See M ISS

. 8 R. C IV

. P. 9(b) (r equir ing “th e cir cum st ance s cons tit uting fr aud or mi st ak e [t o] be st ated wi th par tic ulari ty”)

. If the cas e wa s rem ande d, App ellant s’ clai m wo uld lik ew ise fai l in st ate cour t.

Befo r e both the dis tri ct cour t and this cour t, App ellant s argued that Sk inner s’ s 9 sal es man fr audul entl y convin ced Ste phen Mur ray, Sr. , to pur chas e an exten ded wa rra nty for $1,5 00, but the Mur rays late r rec eived a bill for alm os t $3,0 00. Ho we ver, as note d above, we may not add res s this clai m beca use we canno t cons ide r pos t- rem oval fil ings “to the exten t that they pr es ent new caus es of act ion or theo ries not rais ed in the cont roll ing pet i t i o n i n s t a te cour t. ” Gr iggs , 181 F.3dat700

.

We have rec ogniz e d t h a t a dis tri ct cour t sho uld not find fr audul ent joind er and 1 0 dis mi ss a fr aud clai m for fai lure to sat isf y the ple adin g requ irem ents of Rule 9(b) wi thou t fir st grant ing l e a v e to ame nd. Ha rt v. Baye r Corp

. , 199 F.3d 239, 247 n.6 (5t h Cir. 2000)

. App ellant s here , how eve r , d id not se ek leave to rep lead thei r fr audul ent mi sr epr es enta tio n clai m in the dis tri ct cour t and have not advanc ed suc h an argum ent bef ore this pane l. Rather , 9 Case: 11-60618 Document: 00511877213 Page: 9 Date Filed: 06/05/2012No. 11-60618

D. Negligent Misrepresentation On appeal, Appellants argue that they sufficientl y p l e a ded a negligent

m i s r e p re s e nt atio n cl aim because Skinners’s salesman told them that the car w a s “equipped with a dual frontal airb a gs [sic] system that worked” when, in fact, t h e a i rbags failed to deploy. Additionally, they contend that the salesman negligently told them that the car was “good and dependable” when it was not. The district court held that Appellants could not proceed with their n e gligent misrepresentation claim because it was barred by the innocent seller exemption, and we agree. Although “negligence claims can b e b rought alongside strict liability

c l aims,” McSwain v. Sunrise Med., Inc. , 689 F. Supp. 2d 835, 846 (S.D. M i s s . 2010), a party may not disguise a products liability claim as a negligence claim to avoid dismissal. See, e.g. , id. at 844 (concluding that the plaintiff’s “common law negligence clai ms fail because they are mere restatements of the claims brought under the MPLA, and

. . . are not supported by sufficient evidence”); see also McKee , 64 So. 3d at 940 (noting that the plaintiffs’ “negligence claim ‘fail[s] to present any new discussion or claim that does not relate back to the

. . . p r o d ucts liability claim which ha[s] previously been determined to be legally insufficient to survive summary judgment’” (alterations in original) (quoting Moss v. Batesville Casket Co. , 935 So. 2d 393, 406 (Miss. 200 6)). Here, Appellants essentially argue that Skinners negligently promised that the frontal airbags would deploy and that the car was good and dependable. However, Appellants’ negligent misrepresentation claim is nothing more than

an attempt to disguise a breach of warranty based upon a design or manufacturing defect claim as a negligent misrepresentation claim in order to avoid the innocent seller exemption of section 11-1-63(h). This they cannot do.

they h ave cons ist entl y argued that thei r fr audul ent mi sr epr es enta tio n clai m has been ple d wi th suf fic ientp art icula rit y, an a rgum ent thatw e r eject

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See Moss , 935 So. 2d at 406 (dismissing a negligence claim because it was merely

an attempt to “reargu e th e w arr anty claims previously discussed under the guise of negligence”). Si n c e the innocent seller exemption applies, and Appellants cannot show that Skinners had actual or constructive knowledge of the defective

co n di t i o n , see M I S S

. C O D E AN N

. § 11-1-63(h), Appellants fail to establish a possibility of recovery against Skinners on their negligent misrepresentation claim. E. Negligence or Gross Negligence Finally, Appellants argue that the district court improperly dismissed their negligence claims. The compla i n t a l l e ges two ways that Skinners was negligent: (1) by failing to notify Appellants about manufacturer’s recalls of the frontal airbags; and (2) failing to identify and repair defects, notify Appellants of defects, or provide transportation while the defendants repaired the defects. We reject Ap p e l l a nts’ contention that the failure to notify the Murrays about several manufacturer’s recalls that a l l e g e dly applied to the vehicle constituted negligence, because Skinners had no pos t

- s ale duty to warn under Mississippi law. See Noah v. Gen. Motors Corp. , 882 So. 2d 235, 239 (Miss. Ct. App. 2004). Appellants have cited no authority to establish that a car dealer has

a post-sale duty to warn them of a manu f a c t urer’s recall, and, in response to GM’s evidence showing no relevant recalls, they have made no showing that the recalls actually applied to their vehicle. Next, Appellants contend that Skinners negligently failed to identify and repair the defects that caused the accident. In essence, Ap p e llants claim that Skinners was negligent in failing to locate and fix a design defect. However, we agree with the district court that the innocent seller exemption set out in section 11-1-63(h) applies to immunize Skinners from this claim. As noted above, a party may not disguise a products liability claim as a negligence claim to avoid dismissal. See, e.g. , McKee , 64 So. 3d at 940. Appellants’ claim is nothing more
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than a creative attempt to hold Skinners liable for a design defect and for failing to warn them about t h e defective nature of the vehicle. Because Appellants cannot show that Skinners exercised substantial control over the frontal airbags

or steering mechanism, altered o r m odified the car in a way that caused the injuries, or had act u a l o r c onstructive knowledge of the defective condition, as required to overcome the innocent seller exemption, see M I S S

. C O D E AN N

. § 11-1- 63(h), Appellants fail to establish a possibility of recovery against Skinners for negligence or gross negligence. IV. CONCLUSION As indica t e d ab o v e, GM has established that Appellants do not have a possibility of success on any of their claims against Skinners—the only in-state defendant. Accordingly, the district court did not err in denying r e m a n d a nd dismissing Skinners. As a result, the case against GM should be remanded to the district court for further proceedings as appropriate. AFFIRMED and REMANDED.

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