IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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, Stephen 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

United States Court of Appeals

Fifth Circuit

F I L E D

June 5, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

 M.B. is a minor. Leonora Murray, M.B.’s grandmother, filed suit on M.B.’s behalf.

1

Although Appellants named this entity as “Skinner Chevrolet Buick Pontiac GMC,” 2

their brief corrects the name to the name given in the text. Thus, we use “Skinners” rather

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No. 11-60618

their motion to remand the case to state court. The district court concluded that

Skinners—the only non-diverse defendant—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

Stephen 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 Skinners on

several occasions for service and that GM issued several recall notices on the

vehicle, but Skinners failed to notify them of such notices.

In 2009, Leonora Murray was driving the vehicle when the left front

spindle broke, the steering mechanism failed, and the front airbags failed to

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 citizen of Delaware, and

than “Skinner” as the shorthand reference for this entity. 

The term “improper joinder” has also been referred to as “fraudulent joinder”;

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however, we have previously adopted the term “‘improper joinder’ as being more consistent

with the statutory language than the term ‘fraudulent joinder’ . . . .” Smallwood v. Ill. Cent.

R.R. Co., 385 F.3d 568, 571 n.1 (5th 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 extensively

briefed the issues before the district court, and GM, Skinners, and Appellants

offered additional evidence to support their respective claims. After considering

this evidence and the parties’ arguments, the district court concluded that

because Appellants would be unable to establish a cause of action against

Skinners, Appellants’ 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 the district court certify its order dismissing

Skinners and denying their motion to remand as 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 appeal. Appellants timely

appealed.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review the district court’s order, which was

certified as final under Rule 54(b), pursuant to 28 U.S.C. § 1291. See United

States v. Caremark, 634 F.3d 808, 814 (5th Cir. 2011). Although Appellants

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 jurisdiction to determine whether the district court properly concluded that

it had diversity jurisdiction pursuant to 28 U.S.C. § 1332.

We review the denial 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 district court “may conduct a Rule

12(b)(6)-type analysis, 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 of

joinder . . . the district court may, in its discretion, pierce the pleadings and

conduct a summary inquiry.” Id. “In deciding whether a party was improperly

joined, 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 raises federalism 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 (5th Cir. 1992) (“The diversity statute

requires complete diversity of citizenship: a district court cannot exercise

diversity jurisdiction if one of the plaintiffs shares the same state citizenship as

one of the defendants.” (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 joinder 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 facts, or (2) inability of the

plaintiff to establish a cause of action against the non-diverse party in state

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

case, GM—the removing party—argued that there was no possibility that

Appellants could recover against Skinners and that, therefore, Skinners was

improperly joined to defeat diversity jurisdiction. We analyze each of Appellants’

causes of action in turn to determine whether it established 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 court 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 warranty. In an attempt to show

Skinners’s involvement, they contend that one of Skinners’s salesmen

“embrac[ed] GM’s warranty . . . .” However, under Mississippi law, Skinners

Appellants also raise an argument about an extended warranty they purchased 4

through Skinners. Appellants claim that they were told that the extended warranty would

cost $1,500, but they later received a bill for $3,000. First, we note that Appellants are not

claiming damages for alleged overbilling or failure to repair under an extended warranty;they

are claiming damages for personal injury. We fail to see how this allegation could give rise to

such a damages award. Additionally, even if they sought the proper damages for the breach

of this warranty, we cannot consider Appellants’ claims related to the extended warranty

purchased through Skinners. The complaint filed in state court (and never amended) failed

to mention an extended warranty. We may not consider post-removal filings “to the extent

that they present new causes of action or theories not raised in the controlling petition in state

court.” Griggs v. State Farm Lloyds, 181 F.3d 694, 700 (5th Cir. 1999). The theory that

Appellants raised concerning the extended warranty was not raised in the petition filed in

state court; therefore, we cannot consider this aspect of Appellants’ express warranty claim.

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cannot be held liable for “embracing” the express warranty made by the

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 manufacturer]”

and, therefore, the dealership could not be held liable for 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 manufacturer’swarranty 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); FitznerPontiacBuick-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 the Mississippi Code provides that an

innocent seller “shall not be liable” for any action pursuant to section 11-1-

63(a)—which includes a claim for breach of an express warranty—unless the

seller either: (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

for which 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.” MISS. CODE ANN. § 11-1-63(h) (1972 & Supp. 2011).5

Section 11-1-63 of the Mississippi Code is also referred to as the Mississippi Products

5

Liability Act (“MPLA”). Subsection (h) of the MPLA is referred to as the innocent seller

exemption.

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Appellants contend that the “innocent seller” exemption does not prohibit

them from bringing an express warranty claim pursuant to the Mississippi

Uniform Commercial Code (the “Mississippi UCC”). However, although 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. 2:11-cv-255KS, 2012 WL 968026, at *3-4 (S.D. Miss. Mar. 21, 2012).

Appellants are seeking damages for the injuries to Leonora Murray and M.B.

that were allegedly caused by the failure of the steering mechanism and the

airbags. This claim is subject to the MPLA limits by the express terms of the

Mississippi UCC. Because we hold that Appellants’ claim as pleaded falls under 7

the MPLA, the innocent seller exemption applies.

Indeed, the Mississippi legislature specifically 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.” MISS. CODE

ANN. § 11-1-63(h). Although Appellants pleaded that Skinners was not just a

conduit 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 steering,” or “install” or “test the air bags

Mississippi adopted the Uniform Commercial Code. See MISS. CODE ANN. § 75-1-101 6

et seq. (1972).

Section 75-2-715 of the Mississippi UCC—labeled “Buyer’s Incidental and

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Consequential Damages”—excepts the matters “otherwise provided in” § 11-1-63 from the

general rule that consequential damages available to a buyer for a seller’s breach of warranty

include “injury to [a] person.”

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and steering.” An employee of Skinners also stated in her affidavit that

“Skinners Chevrolet made no express warranties or other express factual

representations about the subject car, 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 possibility 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

from 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 agree with the district court—and with four other federal

district courts in Mississippi—that if the plaintiff seeks damages for personal

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 2005162, at *4 (N.D.

Miss. July 6, 2009); Land v. Agco Corp., No. 1:08-cv-012, 2008 WL 4056224, 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. June 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 misrepresentation claim with particularity and in

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dismissing the claim. Federal Rule of Civil Procedure 9(b) requires a plaintiff

to “state with particularity the circumstances constituting fraud or mistake.” 

State-law fraud claims are subject to this requirement. See Sullivan v. Leor

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 that

“the defendants negligently, gross [sic] negligently, and fraudulently

misrepresented and made omissions to the public, including the plaintiffs, about

the safety and maneuverability of the 2006 Chevrolet HHR automobile.” The

complaint contains no descriptions of the specific statements that Appellants

claim were fraudulent, or when and where such statements were made. The 9

complaint is entirely devoid of specific allegations about Skinners’s alleged

fraudulent misrepresentation. Therefore, we conclude that the district court did

not err in finding that Appellants failed to demonstrate any possibility of

recovery on their fraudulent misrepresentation claim.10

Mississippi Rule of Civil Procedure 9(b) contains a similar requirement. See MISS.

8

R. CIV. P. 9(b) (requiring “the circumstances constituting fraud or mistake [to] be stated with

particularity”). If the case was remanded, Appellants’ claim would likewise fail in state court.

Before both the district court and this court, Appellants argued that Skinners’s

9

salesman fraudulently convinced Stephen Murray, Sr., to purchase an extended warranty for

$1,500, but the Murrays later received a bill for almost $3,000. However, as noted above, we

may not address this claim because we cannot consider post-removal filings “to the extent that

they present new causes of action or theories not raised in the controlling petition in state

court.” Griggs, 181 F.3d at 700. 

We have recognized that a district court should not find fraudulent joinder and 10

dismiss a fraud claim for failure to satisfy the pleading requirements of Rule 9(b) without first

granting leave to amend. Hart v. Bayer Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000). 

Appellants here, however, did not seek leave to replead their fraudulent misrepresentation

claim in the district court and have not advanced such an argument before this panel. Rather,

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D. Negligent Misrepresentation

On appeal, Appellants argue that they sufficiently pleaded a negligent

misrepresentation claim because Skinners’s salesman told them that the car was

“equipped with a dual frontal airbags [sic] system that worked” when, in fact,

the airbags 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 negligent

misrepresentation claim because it was barred by the innocent seller exemption,

and we agree.

Although “negligence claims can be brought alongside strict liability

claims,” McSwain v. Sunrise Med., Inc., 689 F. Supp. 2d 835, 846 (S.D. Miss.

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 claims 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 . . .

products 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. 2006)).

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 have consistently argued that their fraudulent misrepresentation claim has been pled

with sufficient particularity, an argument that we reject.

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

an attempt to “reargue thewarranty claims previously discussed under the guise

of negligence”). Since the innocent seller exemption applies, and Appellants

cannot show that Skinners had actual or constructive knowledge of the defective

condition, see MISS. CODE ANN. § 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 complaint alleges 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 Appellants’ contention that the failure to notify the Murrays

about several manufacturer’s recalls that allegedly applied to the vehicle

constituted negligence, because Skinners had no post-sale 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 manufacturer’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, Appellants 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 the defective nature of the vehicle. Because Appellants

cannot show that Skinners exercised substantial control over the frontal airbags

or steering mechanism, altered or modified the car in a way that caused the

injuries, or had actual or constructive knowledge of the defective condition, as

required to overcome the innocent seller exemption, see MISS. CODE ANN. § 11-1-

63(h), Appellants fail to establish a possibility of recovery against Skinners for

negligence or gross negligence.

IV. CONCLUSION

As indicated above, 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 remand and

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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