REVISED JUNE 13, 2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-61006

consolidated with

No. 11-60122

ILLINOIS CENTRAL RAILROAD COMPANY,

Plaintiff - Appellee

v.

WILLIAM GUY; THOMAS W. BROCK,

Defendants - Appellants

Appeals from the United States District Court

for the Southern District of Mississippi

Before REAVLEY, ELROD, and HAYNES, Circuit Judges.

REAVLEY, Circuit Judge:

A jury returned a verdict in favor of Plaintiff-Appellee Illinois Central

Railroad on its claims of fraud and breach of the duty of good faith and fair

dealing against Appellant-Defendants William Guy and Thomas W. Brock. Guy

and Brock’s misrepresentations induced Illinois Central to settle the asbestos

exposure claims of two former Illinois Central employees whom Guy and Brock

represented in a state-courtlawsuit. On appeal, Guy and Brock contend that the

district court lacked subject matter jurisdiction over the instant case under the

Rooker-Feldman doctrine, and alternatively that the case called for Burford

United States Court of Appeals

Fifth Circuit

F I L E D

May 29, 2012

Lyle W. Cayce

Clerk
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1 319 U.S. 315, 635 S. Ct. 1098 (1943).

2

____ U.S. _____, 131 S. Ct. 1186, 1189 (2011). A separate treatment of the facts as

they relate to Guy and Brock’s Rooker-Feldman and abstention arguments is not necessary,

as none of the facts material to those issues are in dispute.

2

abstention under Burford v. Sun Oil Co.1 They also contend that the trial

evidence established their statute-of-limitations and waiver defenses as a matter

of law.

Guy and Brock misconceive the legal authorities relevant to their

jurisdiction, abstention, and waiver arguments. Regarding the statute of

limitations issue, we conclude that a reasonable jury could have found for Illinois

Central. We therefore AFFIRM the district court’s judgment.

I. BACKGROUND

Our explanation of the case’s background is based on the undisputed facts

and the evidence presented at trial. Our treatment of disputed factual matters

is informed by the standard of review applicable to a post-trial challenge to the

sufficiency of the evidence, which requires us to view the trial evidence in the

light most favorable to the jury’s verdict. See Staub v. Proctor Hosp.2 Guy and

Brock represented Warren R. Turner, Jr., Willie R. Harried, and roughly 170

other plaintiffs alleging asbestos exposure during their employment with Illinois

Central in a suit filed on August 1, 2001, in the Circuit Court of Jefferson

County, Mississippi, styled Elbert Eakins, et al. v. Illinois Central Railroad Co.,

No. 2001-65 (Jefferson Cnty. Cir. Ct. Miss.). The Eakins case proceeded in

parallel with Robert Allen v. Illinois Central Railroad Company, No. 2000-100

(Jefferson Cnty. Cir. Ct. Miss.), another multi-plaintiff case in which Guy and

Brock represented numerous individuals suing Illinois Central for asbestos

exposure. The cases proceeded before the same judge, and in most respects were

treated as though they had been consolidated.
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3 45 U.S.C. §§ 51-60.

3

Turner was one of a small number of the Eakins plaintiffs selected for

early discovery and trial. The Eakins trial court allowed discovery regarding

the plaintiffs in this “trial group,” and their claims were scheduled for trial on

October 15, 2002. That trial did not happen because Guy and Brock and Illinois

Central reached an agreement establishing a process for expedited evaluation

and settlement of all of the Eakins plaintiffs’ claims. The August 6, 2002

agreement preserved Illinois Central’s right to refuse settlement if the plaintiff

had not actually worked for Illinois Central, had not been diagnosed with an

asbestos-related illness, or had not sued within the three-year statute of

limitations provided by the Federal Employer Liability Act (“FELA”).3 The

agreement provided for limited discovery on those matters regarding the 160-odd

Eakins plaintiffs not in the trial group. For them, the agreement called for Guy

and Brock to provide each plaintiff’s sworn responses to a “pulmonary

questionnaire.” The questionnaire asked for the plaintiff’s employment history,

any other known history of asbestos exposure or asbestos-related medical

history, and any involvement in prior asbestos litigation. After receiving a

plaintiff’s completed questionnaire, Illinois Central was required to review the

claim and either assert one of the preserved grounds for refusing settlement or

make a firm settlement offer. The agreement required that in every three month

period Illinois Central would make settlement decisions regarding $6 million

worth of claims for which Guy and Brock had submitted completed

questionnaires. The agreement required both Guy and Brock and the Eakins

plaintiffs themselves to act in good faith in carrying out the settlement process.

The settlement procedures agreement used in Eakins was similar to one through
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4 See 45 U.S.C. § 56; Urie v. Thompson, 337 U.S. 163, 170, 69 S. Ct. 1018, 1024–25

(1949).

4

which Illinois Central had settled with many of Guy and Brock’s clients in the

Allen litigation.

Over five years before Eakins was filed, Harried and Turner were

plaintiffs in a case brought in Jefferson County against an asbestos

manufacturer, David Cosey, et al. v. E.D. Bullard Co. et al., No. 95-0069

(Jefferson Cnty. Cir. Ct. Miss.). Turner’s and Harried’s counsel in that case was

Attorney Robert Pritchard. Turner and Harried were not familiar with the

details of Cosey or even the case’s formal name. But each recollected that he had

been diagnosed with an asbestos-related illness after consulting with Pritchard

some time around 1995, and that Pritchard had filed an asbestos claim on his

behalf. Both Turner and Harried shared that information with Guy and Brock

before the Eakins suit was filed. The diagnoses used in Cosey establish that by

2001 Turner’s and Harried’s claims against Illinois Central were time barred

under FELA’s three-year statute of limitations,4 and Illinois Central would not

have settled their claims had it been aware that they were plaintiffs in Cosey.

But Guy and Brock withheld that fact from Illinois Central during the

settlement process. They omitted the Cosey information from Turner’s

interrogatory responses concerning his medical and litigation history, which Guy

and Brock provided to Illinois Central on January 25, 2002. They also omitted

Cosey from Harried’s sworn responses to the pulmonary questionnaire,

submitted on May 19, 2003. As a result, Illinois Central settled Turner’s and

Harried’s claims. Turner was paid $120,000 on December 23, 2002. Harried

was paid $90,000 on November 26, 2003. The Eakins trial court dismissed

Turner’s and Harried’s claims with prejudice.
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5

Another Eakins plaintiff who had been in Cosey was Fred Tyler. Tyler was

initially in the Eakins trial group, and Guy and Brock provided interrogatory

responses on his behalf on January 25, 2002. As with Turner, they omitted

Tyler’s participation in Cosey. Tyler was dropped from the trial group before the

August 6, 2002 settlement procedures agreement, so his claim was subjectto the

pulmonary questionnaire procedure for non-trial group plaintiffs. Guy and

Brock submitted Tyler’s sworn responses to the pulmonary questionnaire on

July 28, 2003, again omitting Cosey.

At some point in late 2003 or January 2004, Guy and Brock became

unsatisfied with the pace at which Illinois Central was processing unsettled

claims. They moved the Eakins trial courtto enforce Illinois Central’s obligation

to process $6 million in claims per quarter. But before the Eakins trial court

heard that motion, Illinois Central discovered that Tyler had been a plaintiff in

Cosey. Illinois Central’s lead counsel in Eakins was Attorney Thomas Peters.

Illinois Central had not offered Tyler a settlement, but the omission of Cosey

from Tyler’s interrogatory responses and pulmonary questionnaire caused Peters

to lose confidence that Guy and Brock were taking adequate steps to ensure that

the information they collected from their clients was accurate. On January 21,

2004, Peters sent Guy and Brock a letter setting forth the omissions from Tyler’s

interrogatories and pulmonary questionnaire, and asking Guy and Brock to

explain. Peters’s letter also stated that the omissions had prompted Illinois

Centralto undertake further investigation ofthe bulk ofthe remaining unsettled

Eakins claims. Peters did not accuse Guy and Brock of fraud. He believed Tyler

was responsible for the misleading omissions, stating in his letter, “The

explanation for submissions made by Mr. Tyler point convincingly towards

fraud, but we await any explanations Mr. Tyler may have regarding these

disconcerting facts.”
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6

On February 13, 2004 Illinois Central learned of Turner’s and Harried’s

participation in the Cosey case from a report by an outside investigator. But

Illinois Central did not raise the issue with Guy and Brock at that or any other

time during the pendency of the Eakins litigation. Subsequent proceedings in

Eakins remained focused on the Tyler omissions, and subsequently on

discrepancies in affidavits that Guy and Brock later provided to Illinois Central

concerning the litigation history of other unsettled Eakins plaintiffs. Illinois

Central refused to consider many of the unsettled claims until it had a

satisfactory explanation of the Tyler omissions, and it sought dismissal of some

of the other unsettled plaintiffs’ claims. That dismissal motion and Guy and

Brock’s motion to compel Illinois Central to more promptly consider unsettled

claims were set for a hearing on March 29, 2004. But on the day of the hearing

they reached an agreement, memorialized in a handwritten document, that

Illinois Central would continue processing unsettled claims if Guy and Brock

would provide (1) a letter from Tyler explaining the omissions in his responses;

and (2) a letter from Guy and Brock “regarding the procedures they have used

to ensure accurate information on pulmonary questionnaires and expert medical

info [sic] and what further procedures are anticipated.”

Guy and Brock never provided the promised explanation of their

procedures,though Peters asked them to do so “many times.” On April 22, 2004,

Guy and Brock wrote a letter to Illinois Central stating “[i]t should be quite

obvious that we have done a good job with the questionnaires in that several

hundred have been submitted and there have been very few problems.”

Regarding Tyler’s questionnaire, the letter states “[W]e have spoken to Mr.

Tyler. It is apparent that when Mr. Tyler was questioned about prior litigation

he understood that he was being asked about a prior case against the railroad.”

Guy and Brock also promised that “[t]o make sure that this situation does not
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7

occur again, we will be supplying affidavits from all remaining unpaid Allen and

Eakins plaintiffs regarding all prior asbestos litigation. If a plaintiff has been

involved in prior litigation, we will provide you with any document that we can

obtain for your review.” Peters did not find the explanation of the omissions in

Tyler’s questionnaire credible, but his suspicion continued to focus of Tyler, not

Guy and Brock. 

On April 28, 2004, Guy and Brock supplied Illinois Central’s counsel with

a letter purportedly composed by Tyler. The letter stated that when Tyler first

met with Guy and Brock to be tested for asbestosis in relation to a possible claim

against Illinois Central, he did not know that the asbestos claim he asserted in

Cosey “had anything to do with a claim against the railroad.” The letter also

stated that when Tyler “was asked about whether [he] had made a prior claim,

[he] understood that[he] was being asked if [he] had made a prior asbestos claim

against Illinois Central, which [he] had not.” Again, Peters did not credit this

explanation, and he continued to suspect Tyler.

In fact, Guy and Brock had never asked Tyler whether he was involved in

a previous asbestos suit or whether he had been previously diagnosed with an

asbestos-related condition. Tyler recognized his signature on the April 28, 2004

letter as his, but he testified that its contents were false and he did not write it.

He recalled signing documents when asked to do so by Guy and Brock. Beyond

that, he had no part in composing the letter or preparing his responses to the

interrogatories and the pulmonary questionnaire.

The Eakins trial court held hearings in June, August, and October 2004,

and one in January 2005. Prior to the June hearing, Illinois Central again

sought relief with respect to the Tyler omissions. Guy and Brock took the

position thatthe omissions in Tyler’s interrogatory and questionnaire responses

were mistakes, and on the day of the June hearing they voluntarily moved to
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8

dismiss Tyler’s claim. The Eakins court granted their motion. But at the

hearing Peters expressed concern that “there’s more issues with Mr. Tyler than

just dismissal because I think we’ve got past problems.” Peters also said that

Illinois Central was “worried about systemic problems” with the pulmonary

questionnaires. Peters testified in this case that his comments at the June

hearing were about the fact that Guy and Brock had not provided the

explanation of their procedures they promised in the March 29, 2004

handwritten agreement. When the Eakins trial court asked Peters whether

there was “evidence thatthis happened with anybody [other than Tyler],” Peters

responded “I think there is good evidence that it happened with somebody in the

past, your Honor, but we don’t know.” The Eakins court asked Peters “was this

before you settled the case that you knew this or after it or what?” Peters

responded, “No, I think we found out about what happened with Mr. Tyler–I

think we learned there might be–there might be another individual in the Cosey

case.” The Eakins trial court asked how long Peters would need “to develop

this,” and he responded that “it would not be more than a week.” In the instant

case, Peters testified that he could not recall whom he had in mind when he

referred to the possibility of “another individual in the Cosey case.” Illinois

Central did not subsequently bring evidence to the Eakins court of Harried’s and

Turner’s involvement in Cosey or their misleading submissions. 

Nothing in the instant case’s trial record indicates that Illinois Central

confronted Guy and Brock with the falsehoods in Turner’s and Harried’s

submissions at any time during the pendency of the Eakins case. Nor is there

evidence in the trial record that Illinois Central raised the issue with the Eakins

trial court, beyond Peters’s vague reference to “another individual in the Cosey

case” at the June 2004 hearing. When Brock was asked at trial in this case
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9

whether he and Guy made “repeated representations to Illinois Central and the

Eakins trial courtthat y’all didn’t have anything improper to do with Mr. Tyler’s

claim,” Brock answered that “we may very well have . . . .” At no point in the

Eakins litigation did Peters suspectthat Guy and Brock were responsible for the

Turner and Harried omissions. He believed that Turner and Harried had been

dishonest when supplying information to Guy and Brock. 

Charles Garrett, an Illinois Central “risk manager,” was responsible for

assisting Peters in Eakins. Neither Peters or Garrett suspected that Guy and

Brock might be responsible for the omissions until Turner and Harried were

deposed in this case on January 10, 2008, and May 15, 2007, respectively.

Peters testified that he did not contact Guy and Brock about the Turner and

Harried omissions because he did notthink they would cooperate:“They weren’t

even telling me what was going on with Tyler. Why would they give me money

back in a case that’s over[?]” Also, Peters and Illinois Central’s other counsel

regarded Jefferson County as a jurisdiction that was “not only dangerous but

also unfair.” So at some point in the spring or summer of 2004 Illinois Central

decided it would file a separate action against Turner and Harried after the

Eakins case was complete.

The Eakins trial court denied Illinois Central’s requestto enforce Guy and

Brock’s promise to provide a description of their procedures. But the court

granted Illinois Central’s request to depose Tyler to learn more about what had

happened with his interrogatory and questionnaire responses. The deposition

was held on August 27, 2004, but Guy and Brock terminated the deposition

shortly after it began. After they stopped Illinois Central’s counsel’s

examination of Tyler, Guy said “I feel like we’ve been in ultimate good faith in

everything we’ve done, and out of hundreds of these things this is the only one

. . . problem we’ve come up with.” Throughout the June, August, and October
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2004 hearings Guy and Brock made statements to the effect that they had done

their bestto ensure thattheir clients provided honest answers to the pulmonary

questionnaires. 

As they had promised in their April 22, 2004 letter, Guy and Brock

supplied affidavits regarding other asbestos litigation from the remaining

unsettled Eakins and Allen plaintiffs. Although Guy and Brock had promised

affidavits addressing only prior litigation, the affidavits they provided purported

to list all other asbestos litigation in which the plaintiff was or had ever been

involved. This made several of the affidavits false, because they did not list

cases filed after Eakins or Allen. The post-Eakins cases omitted from some of

the Eakins plaintiffs’ affidavits included cases in which Guy and Brock were the

plaintiffs’ counsel.

Illinois Central discovered the information omitted from the affidavits and

again sought relief from its obligation to continue settling claims under the

procedures agreement. The Eakins trial court heard arguments about the

affidavits at the October 2004 hearing. The court denied Illinois Central’s

requested relief and granted a renewed motion from Guy and Brock to enforce

the agreement. The trial court refused to rehear Illinois Central’s motion after

a hearing in January 2005 and entered judgments to enforce the agreements in

Eakins and the Allen litigation. Illinois Central filed appeals in both cases,

which the Mississippi Supreme Court ultimately disposed of in Illinois Central

Railroad v. Acuff, 950 So.2d 947 (Miss. 2006) (disposing of Eakins appeal), and

Illinois Central Railroad v. McDaniel, 951 So.2d 523 (Miss. 2006) (disposing of

Allen appeal). The Mississippi Supreme Court agreed with the trial court’s

finding that the omissions from the affidavits were inadvertent and immaterial,

and that the trial court did not err in refusing to dismiss the unsettled claims
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5 Acuff, 950 So.2d at 955-56; McDaniel, 951 So.2d at 528-29.

11

and refusing to relieve Illinois Central from its obligations under the settlement

procedures agreements.5

Illinois Central sued Harried in the district court on November 22, 2006,

and Turner on January 31, 2007. At his May 15, 2007 deposition Harried

revealed that he had informed Guy and Brock about his prior lawsuit with

Attorney Pritchard. After some months of delay during which Illinois Central

sought to discover documents referenced at the deposition, Illinois Central filed

an opposed motion on October 29, 2007, seeking leave to join Guy and Brock as

defendants in the Harried suit. That motion was granted on January 10, 2008,

and on January 17, 2008, Illinois Central filed the amended complaint joining

Guy and Brock to the suit. January 10, 2008, was also the day when Illinois

Central deposed Turner in its suit against him. Turner’s testimony also

indicated that Guy and Brock knew of his involvement in Cosey. Illinois Central

then sought leave to join Guy and Brock to Turner’s case on January 31, 2008.

The district court granted leave, and Illinois Central filed its amended pleading

on February 4, 2008.

The actions were consolidated for trial on Illinois Central’s claims for fraud

and breach of the duty of good faith and fair dealing claims against all four

defendants. Guy and Brock pleaded defenses of statute of limitations and

waiver. Illinois Central sought to prove fraudulent concealment, alleging that

Guy and Brock’s representations and conduct during the Eakins litigation

prevented discovery of their role in the omissions from Turner’s interrogatory

responses and Harried’s pulmonary questionnaire. The jury found against

Illinois Central on its claims against Turner and Harried, but it returned a

general verdict awarding Illinois Central $210,000 in compensatory damages for
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6 618 F.3d 458, 461 (5th Cir. 2010).

7 546 U.S. 459, 463, 126 S. Ct. 1198, 1201 (2006).

8 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517,

1521 (2005).

9 460 U.S. 462, 466-68, 470-73, 103 S. Ct. 1303, 1306-10 (1983).

10 263 U.S. 413, 414-15, 44 S. Ct. 149, 149-50 (1923).

12

its fraud and bad faith claims against Guy and Brock. After a second phase of

deliberation, the jury awarded Illinois Central an additional $210,000 in

punitive damages. Guy and Brock moved for judgment as a matter of law on

various issues, including their statute-of-limitations and waiver defenses. Their

post-trial motion also asserted that the district court lacked subject-matter

jurisdiction under the Rooker-Feldman doctrine. The district court denied their

motion and entered judgment reflecting the jury verdict. Guy and Brock timely

appealed.

II. Jurisdiction and Abstention

A. Rooker-Feldman

We review challenges to the district court’s jurisdiction de novo.

SmallBizPros, Inc. v. MacDonald.

6 Guy and Brock contend that the RookerFeldman doctrine precludes jurisdiction. That doctrine bars lower federal courts

from “exercising appellate jurisdiction over final state-court judgments.” Lance

v. Dennis.

7

It applies only in circumstances closely akin to those addressed in

the Rooker and Feldman decisions,8in which a party suffered an adverse final

judgment rendered by a state’s court of last resort, and then initiated

proceedings in a lower federal court seeking review and reversal of the statecourt judgment. District of Columbia Court of Appeals v. Feldman9

; Rooker v.

Fidelity Trust Co.10 Accordingly, the doctrine usually applies only when a
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11 660 F.3d 900, 904 (5th Cir. 2011).

12 460 U.S. at 483 n.16; 103 S. Ct. at 1316 n.16; Richard v. Hoechst Celanese Chem.

Grp., Inc., 355 F.3d 345, 350-51 (5th Cir. 2003).

13 Guy and Brock filed a motion that we take judicial notice of various papers filed in

the Acuff and McDaniel appeals for purposes of deciding the jurisdictional issue. Nothing

contained in those papers changes our analysis of Guy and Brock’s Rooker-Feldman argument.

The motion is DENIED as moot.

14 Acuff, 950 So.2d at 955-56; McDaniel, 951 So.3d at 528-29. 

13

plaintiff explicitly attacks the validity of a state court’s judgment, Weaver v.

Texas Capital Bank N.A.,

11 though it can also apply if the plaintiff’s federal

claims are so inextricably intertwined with a state judgment that the federal

court “is in essence being called upon to review the state court decision.”

Feldman.

12

The Rooker-Feldman doctrine does not apply to this case because

adjudicating Illinois Central’s claims did not require the district court to review

any final judgment rendered by a state court. Guy and Brock contend that

litigating Illinois Central’s fraudulent concealment theory amounted to review

of the Mississippi Supreme Court’s judgments in Acuff and McDaniel.

13 We

disagree. 

None of the parties to this case except for Illinois Central were parties to

the Acuff and McDaniel appeals, and Illinois Central did not request or obtain

any relief inconsistent with the judgments the Mississippi Supreme Court

affirmed. We recognize that the Tyler omissions and the subsequent

irregularities in Guy and Brock’s efforts to reassure Illinois Central regarding

their procedures for getting information from their clients were materialto some

of the legal issues Acuff and McDaniel addressed.14 In particular, the

Mississippi Supreme Court was called upon to decide whether the trial court

should have given Illinois Central relief from its obligations to the remaining
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15 Acuff, 950 So.2d at 952-55; McDaniel, 951 So.2d at 525-29

16 438 F.3d 488, 491 (5th Cir. 2006).

17 491 U.S. 350, 361, 109 S. Ct. 2506, 2515 (1989).

14

unsettled Eakins and Allen plaintiffs under the settlement procedures

agreements.15 But litigating Illinois Central’s instant claims did not require

revisiting that issue or changing the result that the Mississippi Supreme Court

reached. Illinois Central did not seek to rescind the settlement procedures

agreement or recover money from the plaintiffs whose right to a settlement was

at issue in Acuff and McDaniel. The jury considered the Tyler omissions and

what followed for their bearing on issues that were not litigated in Eakins or

Allen: Guy and Brock’s liability for fraud and bad faith in inducing Turner’s and

Harried’s settlements, and Illinois Central’s entitlement to relief from the

statute of limitations on account of Guy and Brock’s concealing their role in the

fraud. We also disagree with Guy and Brock’s alternative contention that this

case constitutes a collateral attack on the Eakins trial court’s judgments

dismissing Turner’s and Harried’s claims. Illinois Central did not seek to revive

those claims nor to obtain any other relief that would be inconsistent with the

Mississippi court’s dismissal of them.

B. Abstention

We review abstention decisions for abuse of discretion. Stewart v. W.

Heritage Ins. Co.

16 Burford abstention “is concerned with protecting complex

state administrative processes from undue federal interference . . . .” New

Orleans Pub. Serv., Inc. v. City Council of New Orleans.

17 The Burford plaintiff

brought a federal due process suit challenging a Texas Railroad Commission

order granting a drilling permit. The Supreme Court held that the federal

district court should have abstained, noting that the state’s regulatory scheme
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18 Burford, 319 U.S. at 318-20, 320 n.12, 324-27, 635 S. Ct. at 1099-1100, n.12, 1102-04.

19 New Orleans Pub. Serv., 491 U.S. at 362, 109 S. Ct. at 2515 (citation and quotation

marks omitted).

20 Id. at 361, 109 S. Ct. at 2414.

21 517 U.S. 706, 731, 116 S. Ct. 1712, 1729 (1996).

22 Id.

23 See Miss. Code Ann. § 15-1-49; Sanderson Farms Inc. v. Ballard, 917 So.2d 783 (Miss.

2005).

15

was comprehensive, arose from the state’s great interest in husbanding its

mineral resources, and ensured a unified approach to permitting decisions by

limiting judicial review to a single court.18 The Supreme Court has subsequently

held thatthe Burford doctrine does not require abstention whenever there exists

a complex state administrative process, even if there is a potential for conflict

with state regulatory law or policy.19

The Supreme Court has recognized other significant limits on Burford

abstention. It is not appropriate when “timely and adequate state-court review”

is not available,20 and Burford does not allow district courts to dismiss or remand

actions that seek damages alone. Quackenbush v. Allstate Ins. Co.21 At most,

Burford allows a damages action to be stayed.22 Those limits bar abstention

here. This is an action for damages. Were Illinois Central’s fraud claims

dismissed, Mississippi’s applicable three-year statute of limitations would bar

refiling them in state court.23

Even if those limits did not apply, Burford abstention would be

inappropriate. We consider five factors when deciding whether Burford applies:

“(1) whether the cause of action arises under federal or state law;(2) whether the

case requires inquiry into unsettled issues of state law or into local facts; (3) the

importance of the state interest involved; (4) the state’s need for a coherent
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24 556 F.3d 264, 272 (5th Cir. 2009) (internal citation omitted).

25 247 F.3d 229, 235 (5th Cir. 2001). 

26 575 F.3d 520, 525 (5th Cir. 2009).

16

policy in that area; and (5) the presence of a special state forum for judicial

review” Moore v. State Farm Fire & Cas. Co.24 Only the first, and possibly the

third factor favor abstention here. The relevant doctrines of Mississippi law are

well settled. Mississippi undoubtably has an important interest in policing

fraudulent conduct in litigation in its courts, but that interest is somewhat

attenuated by the factthatthe benefit obtained by fraud in this case did nottake

the form of a state-court judgment. A federal court’s adjudicating Illinois

Central’s claims does nothing to impair the coherence of Mississippi’s policy with

respect to settlement fraud. Finally, Mississippi has arguably provided a

“special forum” for actions seeking relief from a judgment obtained by fraud by

requiring that such actions be brought in the court that rendered the judgment,

but in this case Illinois Central did not seek relief from any judgment rendered

by a Mississippi court.

III. Fraudulent Concealment and Waiver

A. Standard of Review

We review the disposition of motions for judgment as a matter of law de

novo, applying the same standard as the district court. Flowers v. S. Reg’l

Physician Servs. Inc.25 That standard requires the courtto disregard all evidence

favorable to the movant that the jury was not required to believe. E. Tex. Med.

Ctr. Reg’l Healthcare Sys. v. Lexington Ins. Co.26 The court must view the trial
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27 564 F.3d 386, 403 (5th Cir. 2009).

28 917 So.2d 783, 789 (Miss. 2005).

29 Miss. Code Ann. § 15-1-49(1),(2) (Rev. 2003). 

30 575 F.3d 450, 456 (5th Cir. 2009).

31 550 F.3d 506, 509 (5th Cir. 2008).

17

evidence in the light most favorable to the nonmovant, making all reasonable

factual inferences and credibility assessments in the nonmovant’s favor. Mullins

v. TestAmerica, Inc.27

B. Fraudulent Concealment

Guy and Brock contend that Illinois Central presented insufficient

evidence of fraudulent concealment to defeat their statute-of-limitations defense.

The applicable statute of limitations is the three-year period provided by §

15-1-49 of the Mississippi Code. Sanderson Farms, Inc. v. Ballard.

28 The

relevant part of § 15-1-49 provides that:

(1) All actions for which no other period of limitation is prescribed

shall be commenced within three (3) years next after the cause of

such action accrued, and not after.

(2) In actions for which no other period of limitation is prescribed

and which involve latent injury or disease, the cause of action does

not accrue until the plaintiff has discovered, or by reasonable

diligence should have discovered, the injury.29

The statute of limitations normally runs from the time of the injury, not from its

discovery. State Indus. Products Corp. v. Beta Technology, Inc.

30 But

Mississippi Code § 15-1-49(2) provides a discovery rule that applies if a latent

injury is present. See Archer v. Nissan Motor Acceptance Corp.31 A latent injury

is “one where the plaintiff will be precluded from discovering harm or injury

because of the secretive or inherently undiscoverable nature of the wrongdoing
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32 909 So.2d 47, 50 (Miss. 2005) (internal quotation marks and citation omitted).

33 Id. at 51 (quoting Wright v. Quesnel, 876 So.2d 362, 366 (Miss. 2004)).

34 State Indus. Products Corp., 575 F.3d at 454.

35 Miss. Code Ann. § 15–1–67 (Rev. 2003).

36 987 So.2d 443, 450 (Miss. 2008) (internal quotation marks, citation, and punctuation

omitted). 

37 954 So.2d 415, 423 (Miss. 2007).

18

in question . . . .” PPG Architectural Finishes, Inc. v. Lowery.

32 The “focus is on

the time that the patient discovers, or should have discovered by the exercise of

reasonable diligence, that he probably has an actionable injury.”33 Section

15-1-49(2) delays accrual until a party discovers its injury, regardless of whether

he has also discovered the cause.34

Illinois Central’s claims thus accrued on February 13, 2004,the date when

Peters and Garrett testified that they learned of Turner’s and Harried’s

participation in Cosey. At trial, Illinois Central sought to prove that the statute

of limitations was tolled by Mississippi Code § 15–1–67, which provides tolling

for fraudulent concealment:

If a person liable to any personal action shall fraudulently conceal

the cause of action from the knowledge of the person entitled

thereto, the cause of action shall be deemed to have first accrued at,

and not before, the time at which such fraud shall be or with

reasonable diligence might have been, first known or discovered.35

Any party who asserts fraudulent concealment under § 15–1–67 must prove

that: “(1) some affirmative act or conduct was done and prevented discovery of

a claim, and (2) due diligence was performed on the party’s part to discover [the

claim].” Spann v. Diaz.

36 The first element requires an affirmative action that

is actually designed to prevent discovery of the claim. Channel v. Loyacono.

37

The second element requires proof that the plaintiff acted with due diligence in
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38 763 So.2d 883, 887 (Miss. 2000).

39 The district court’s instructions regarding the statute-of-limitations fraudulentconcealment issues read as follows:

Jury Instruction No. 5

The law requires that a party seeking to recover damages mustfile its lawsuit

within a certain period of time. This period of time is known as the statute of

limitations. A statute of limitations is a law that bars a suit from being filed if a

plaintiff does not bring it within a prescribed period of time. The time period

within which the suit must be brought begins when the plaintiff first knew, or by

the exercise of reasonable diligence should have discovered the injury. The Court

instructs you that the statute of limitations applicable to the plaintiff’s claims in

this case is three (3) years.

(. . . .)

Jury Instruction No. 6

In regard to the statue of limitations,the Court instructs you thatthe plaintiff

has asserted that the defendants fraudulently concealed the alleged fraud against

the plaintiff and that this fraudulent concealment tolled the three (3) year statute

of limitations as to the plaintiff’s claims. In order to prove fraudulent concealment

of the claims to toll the statute of limitations, the plaintiff must prove by a

preponderance of the evidence that the defendants committed an affirmative act

to conceal the underlying tortious conduct, and that the plaintiffs failed to discover

the factual basis for the claims despite the exercise of due diligence.

If you find that the plaintiff has proven by a preponderance of the evidence

that the defendants fraudulently concealed the alleged claims, the cause of action

shall be deemed to have first accrued at, and not before, the time at which such

fraud was, or with reasonable diligence might have been, first known or discovered

19

attempting to discover the claim, and that the plaintiff was nevertheless unable

to do so. Robinson v. Cobb.

38

Illinois Central joined Guy and Brock to the two actions making up the

instant case on January 17, 2008, and February 4, 2008. The dispositive

question is thus whether the evidence attrial was sufficientfor a reasonable jury

to conclude (1) that Guy and Brock committed affirmative acts that prevented

discovery of their responsibility for the Turner and Harried omissions until

February 4, 2005, and (2) that from February 13, 2004, until February 4, 2005,

Illinois Central exercised due diligence to discover who was responsible for the

Harried and Turner omissions.39
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by the plaintiff.

20

We find that there was sufficient evidence of affirmative acts of

concealment. In the April 22, 2004 letter to Peters, Guy and Brock assured

Illinois Central that they had been thorough and accurate in collecting

information from the Eakins plaintiffs. Guy and Brock made similar assurances

in the hearings in June and August, 2004, and at Tyler’s truncated deposition

in August 2004. Guy and Brock also promised, in the March 29, 2004

handwritten agreement,thatthey would send Illinois Central a letter explaining

their procedures for collecting the information. And on April 28, 2004, Guy and

Brock sent Illinois Central a letter falsely purporting to be from Fred Tyler and

stating that the omissions from Tyler’s interrogatory responses were simply a

mistake on Tyler’s part. Finally, Guy and Brock terminated Tyler’s August 2004

deposition shortly after it began. From these acts, the jury could have

reasonably inferred a design on Guy and Brock’s part to conceal their disregard

for the truth with respectto materials they prepared on behalf of Tyler and other

Eakins plaintiffs, including Turner and Harried.

It was not unreasonable for the jury to conclude that Illinois Central

exercised due diligence. Peters and Garrett testified that they believed Guy and

Brock’s assurances, and Peters’s comments at the June 2004 hearing can be

understood as expressing concern that many Eakins plaintiffs had given Guy

and Brock inaccurate information, rather than as suspicion of Guy and Brock’s

having committed fraud. Arguably, Guy and Brock’s failure to supply the

promised letter describing their procedures and their refusal to allow Illinois

Central’s attorneys to complete Tyler’s deposition should have raised suspicion

that Guy and Brock were concealing wrongdoing. But Illinois Central’s counsel

could have reasonably attributed their conduct to defensiveness of their
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21

professionalism in collecting information from their clients and frustration with

the course the litigation had taken since the revelation of the Tyler omissions.

Dilatory and defensive conductis not unusual in litigation, particularly when an

agreement settling a large case has broken down. Such conduct rightly provokes

suspicion that opposing counsel is hiding something. But a reasonable litigant

would not typically assume that what is being hidden is opposing counsel’s own

fraud. Even when a litigant has reason to suspect there has been some kind of

malfeasance in the conduct of the litigation, he should be permitted to give

opposing counsel the benefit of the doubt in the face of repeated assurances of

opposing counsel’s good faith and best efforts.

Guy and Brock point out that even if Illinois Central should not have

suspected them of fraud, it certainly had reason to suspect Harried and Turner.

We note that Illinois Central need not demonstrate due diligence with respect

to its claims against Turner and Harried; its suits against them were timely.

And for the reasons already stated we do not fault Illinois Central for assuming

that it was Turner and Harried, rather than Guy and Brock, whom Illinois

Central should sue for the settlement fraud. Guy and Brock make much of the

fact that Illinois Central never called the Turner and Harried omissions to Guy

and Brock’s attention during the Eakins litigation. But in trying to get to the

bottom of the Tyler omissions, Illinois Central pursued much the same inquiry

it would have made had it raised the Turner and Harried omissions. Illinois

Central tried to find out how Guy and Brock collected information from their

clients in order to determine whether the Tyler omission was an isolated

incident or symptomatic of some systematic problem. When Illinois Central

tried to find those things out, Guy and Brock responded with assurances that

they had been honest and thorough in gathering information from their clients.

Illinois Central sought to verify those assurances. Its attorneys tried to depose
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40 511 U.S. 375, 380-81, 114 S. Ct. 1673 1676-77 (1994).

22

Tyler and they demanded that Guy and Brock supply the description of their

procedures that was promised in the March 2004 handwritten agreement. It is

very likely thatthose measures would have ultimately revealed Guy and Brock’s

role in the Turner and Harried omissions. But Guy and Brock prevented that

by terminating Tyler’s 2004 deposition and failing to provide the description.

The jury could reasonably have concluded that Guy and Brock would not have

been more cooperative in response to inquiries about the Turner and Harried

omissions.

As it happened, the Eakins trial court refused to force Guy and Brock to

provide the description of their procedures or provide any further relief on the

basis of the Tyler omission, and Illinois Central calculated that it could best

pursue the Turner and Harried omissions in a different forum. Guy and Brock

contend that countenancing Illinois Central’s forum shopping would offend

principles of comity because Mississippi law obliges a party seeking relief from

a judgment to proceed in the courtthat rendered it. But that argument assumes

that in bringing this action Illinois Central sought relief from a judgment

rendered in the Eakins litigation, which it did not. None of the authorities Guy

and Brock cite indicate that the beneficiary of a judgment of dismissal who was

defrauded into paying too much for the plaintiff’s agreeing to the judgment must

sue in the same court that rendered it. Such a rule would be anomalous, given

that the suit does not seek to reopen the dismissed case or question the validity

of the court’s judgment. Cf. Kokkonen v. Guardian Life Ins. Co. of America.

40

We conclude that the trial evidence sufficed for a reasonable jury to find

that Guy and Brock’s representations during the Eakins litigation prevented

discovery oftheir responsibility for theTurner and Harried omissions until after
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41 481 So.2d 846 (Miss. 1985).

42 538 F.3d 352 (5th Cir. 2008).

43 Turner, 481 So.2d at 848 (internal citation omitted).

44 Bogy, 538 F.3d at 355 (holding that plaintiff could affirm the agreement and sue for

fraud rather than rescind and return settlement payments).

45 Turner, 481 So.2d at 848.

46 358 P.2d 1021 (Colo. 1961).

23

February 4, 2005, and that due diligence did not require Illinois Central to

investigate the Harried and Turner omissions any more aggressively than they

did.

C. Waiver.

Guy and Brock contend that Illinois Central’s conduct in the Eakins

litigation after discovering the Turner and Harried omissions constituted a

waiver of its claims. They rely on Turner v. Wakefield41 and Bogy v. Ford Motor

Company.42 In Turner, the Mississippi Supreme Court restated Mississippi’s

general rule that a party who discovers it has been fraudulently induced to enter

into a contract “has an election to either rescind, in which event he must tender

back that which he has received, or he may affirm the agreement, and maintain

his action in damages for deceit.”43 In Bogy,the Fifth Circuit made an Erie guess

that the Mississippi Supreme Court would extend this rule to settlement

agreements.44

The Turner court also explained that a party that has discovered it was

induced into an agreement by fraud waives the right to rescind or sue for

damages if the party continues to ratify the contract by carrying out its

obligations or accepting the contract’s benefits.45 The Turner court adopted this

rule from a Colorado Supreme Court case, Stoner v. Marshall.

46 In both Turner
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47 Turner, 481 So.2d at 847; Stoner, 358 P.2d at 1021-22.

48 Turner, 481 So.2d at 847-48; Stoner, 358 P.2d at 1022.

49 Turner, 481 So.2d at 848; Stoner, 358 P.2d at 1022.

50 Turner, 481 So.2d at 849-50; Stoner, 358 P.2d at 1022-23.

51 Turner, 481 So.2d at 849-50; Stoner, 358 P.2d at 1023.

52 Turner, 481 So.2d at 849 (citing Stoner, 358 P.2d at 1022-23). 

24

and Stoner, the plaintiff had purchased a business and, as payment, agreed to

make installment payments over a number of months or years.47 The plaintiff

was disappointed in the business, feeling it was less profitable than was

promised, but the plaintiff nevertheless continued operating the business and

paying installments for some time.48 The plaintiff eventually defaulted, and

when the plaintiff was sued on the debt the plaintiff asserted that the purchase

of the business was fraudulently induced by misrepresentations of its

profitability.49 Both courts held that the plaintiff waived the right to rescind or

sue for damages by continuing to make payments and operate the business. 50

Otherwise, a party who discovers he was fraudulently induced to make an

agreement could speculate on the value of the contract by continuing to perform

and receive its benefits. If the contract turns out well for him, he can ratify; if

it does not, he can either rescind or affirm and sue for damages.51 Thus, “Upon

discovery [of the fraud], the one defrauded must act promptly and finally to

repudiate the agreement; however, a continuance to ratify the contract terms

constitutes a waiver.”52

Before the district court, Guy and Brock argued that under Bogy and

Turner Illinois Central waived its fraud claims by failing to rescind Harried’s

andTurner’s settlement agreements. Rejecting this argument, the district court

correctly observed that Illinois Central also had the option of affirming the
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53 If we found merit in the argument Guy and Brock make on appeal, we would be

required to consider whether it must be considered waived because of its differences from the

argument they made before the district court. See Celanese Corp. v. Martin K. Eby Const.

Co., Inc., 620 F.3d 529, 531 (5th Cir. 2010). Because we find that Guy and Brock’s argument

based on Turner lacks merit, we express no opinion as to whether it was waived.

54 Holland v. Peoples Bank & Trust, Co., 3 So.3d 94, 103 (Miss. 2008); Edwards v.

Wurster Oil Co., Inc., 688 So.2d 772, 777 (Miss. 1997); Allen v. Mac Tools., Inc., 671 So.2d 636,

640-42 (Miss. 1990); Austin Dev. Co., Inc. v. Bank of Meridian, 569 So.2d 1209, 1212 (Miss.

1990); Turner, 481 So.2d at 848; Citizens Nat’l Bank v. Waltman, 344 So.2d 725, 727-28 (Miss.

1977).

25

settlements and suing for damages. On appeal, Guy and Brock invoke Turner’s

requirement that after a party discovers it was fraudulently induced to make an

agreement, the party waives its claim if it continues to perform obligations or

accept benefits under the contract. Guy and Brock argue that by failing to raise

the Turner and Harried omissions with the Eakins trial court, Illinois Central

failed to “promptly” choose between rescinding the settlement agreements or

affirming them and then suing for damages.53

Turner and the other Mississippi cases Guy and Brock cite on this point

stand for the proposition that after learning of fraudulent inducement, a party

may not carry on performing or benefitting from a contract without waiving its

right to rescind or bring a claim. In each case, the fraud plaintiff ratified the

contract by performing an obligation or accepting a benefit after the plaintiff

knew or should have known of fraudulent inducement.54 Although Illinois

Central did not repudiate the settlement agreements with Turner and Harried,

there is no evidence it did anything to ratify them after February 13, 2004.

Illinois Central acted strategically by seeking relief in separate action rather

than calling the Eakins trial court’s attention to the fraud, but that does not
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55 671 So.2d at 640-42.

26

show that Illinois Central was somehow able to speculate on the value of the

releases of Turner’s and Harried’s claims.55

IV. Conclusion

The district court’s judgment is AFFIRMED. The motion carried with

case is DENIED as moot.
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1

“To determine Mississippi law, we look to the final decisions of Mississippi’s highest

court.” Estate of Bradley ex. rel. Sample v. Royal Surplus Lines Ins. Co., 647 F.3d 524, 528–29

(5th Cir. 2011).

27

JENNIFER WALKER ELROD, Circuit Judge, dissenting: 

I would reverse because doing nothing is not due diligence. The record

reflects that, despite obtaining evidence of Guy’s and Brock’s potentially

fraudulent conduct, Illinois Central took no action to investigate or pursue its

potential claims after August 27, 2004, the date of the Fred Tyler deposition.

Illinois Central conceded this point at oral argument, acknowledging that it

could not pointto “specific actions after August”to demonstrate its due diligence.

Pursuant to the Mississippi Code’s three year statute of limitations, Illinois

Central was therefore required to sue Guy and Brock no later than August 27,

2007. Illinois Central did not join Guy and Brock in the actions against Willie

Harried and Warren Turner until January 17, 2008 and February 4, 2008,

respectively. That was too late. The claims against Guy and Brock are time

barred. 

The majority opinion applies the fraudulent concealment statute to excuse

the tardiness ofthe claims but, in doing so, gives short shrift to Mississippi’s due

diligence requirement:

If a person liable to any personal action shall fraudulently

concealthe cause of action from the knowledge ofthe person entitled

thereto, the cause of action shall be deemed to have first accrued at,

and not before, the time at which such fraud shall be, or with

reasonable diligence might have been, first known or discovered.

Miss. Code § 15-1-67 (emphasis added). The Supreme Court of Mississippi

has repeatedly held that “[a]ny party who asserts a claim of fraudulent

concealment must prove that (1) some affirmative act or conduct was done and

prevented discovery of a claim, and (2) due diligence was performed on the

party’s part to discover it.”1 Spann v. Diaz, 987 So.2d 443, 449 (Miss. 2008)
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2 The record reflects that Illinois Central possessed information in 2004 that seriously

inculpated either Guy’s and Brock’s clients or Guy and Brock themselves in fraudulent conduct

directed towards Illinois Central. First, Illinois Central learned in early 2004 that Turner,

Harried, and another Eakins plaintiff, Fred Tyler, had all failed to disclose their prior

participation in the Cosey litigation. Second, in June 2004, Illinois Central informed the

Mississippi courtthatit had concerns about “systemic problems” regarding disclosures (or lack

thereof) made by the Eakins plaintiffs. Third, despite Guy’s and Brock’s March 29, 2004

agreement to provide Illinois Central with their procedures for ensuring that their clients

reported accurate information, Guy and Brock never delivered said procedures. Fourth, Guy

and Brock prematurely terminatedIllinois Central’s August 27, 2004 depositionofTyler before

Illinois Central could inquire about Tyler’s non-disclosure of his connection to Cosey. The

foregoing facts, taken collectively, demonstrate that Illinois Central was on notice in 2004 that

a cause of action potentially existed against Guy and Brock. See also Spann, 987 So.2d at 450

(“The would-be plaintiff need not have become absolutely certain that he had a cause of action;

he need merely be on notice—or should be—that he should carefully investigate the materials

that suggest that a cause of action probably or potentially exists.” (quoting First Trust Nat’l

Ass’n v. First Nat’l Bank of Commerce, 220 F.3d 331, 336–37 (5th Cir. 2000))). Even the

majority opinion observes: “[a]rguably, Guy and Brock’s failure to supply the promised letter

describing their procedures and their refusal to allow Illinois Central’s attorneys to complete

Tyler’s deposition should have raised suspicion that Guy and Brock were concealing

wrongdoing.”

28

(citations, internal quotation marks, and alterations omitted). With regard to

the second prong, the movant must demonstrate that “he acted with due

diligence in attempting to discover the factual basis for his claims and was

unable to do so.” Bullard v. Guardian Life Ins. Co. of America, 941 So.2d 812,

819 (Miss. 2006). Thus, “a plaintiff cannot satisfy the due diligence requirement

if he had information regarding the claim and failed to take action before the

statute of limitations expired.” Trustmark Nat’l Bank v. Meador, 81 So.3d 1112,

1120 (Miss. 2012). 

Illinois Central was required to act with due diligence through February

4, 2005 in order for its claims to survive the statute of limitations. The record

demonstrates, however, that from August 28, 2004 through February 4, 2005

Illinois Central failed to investigate or take any action whatsoever upon the

information in its possession that inculpated Guy and Brock.2 Such inaction

precludes tolling under the Mississippi Supreme Court’s interpretation of § 15-1-
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3 Assuming Illinois Central truly did not suspect Guy and Brock of wrongdoing until

it deposed Harried on May 15, 2007, as it alleges, Illinois Central’s subjective viewpoint is

irrelevant for the purposes of our tolling inquiry. “The proper test is whether a reasonable

person similarly situated would have discovered potential claims.” Whitaker v. Limeco Corp.,

32 So.3d 429, 436 (Miss. 2010) (citation and internal quotation marks omitted). Given the

facts discussed in footnote 2, supra, Illinois Central’s failure to suspect Guy and Brock of

wrongdoing in 2004 was objectively unreasonable. 

29

67.3 See Meador, 81 So.2d at 1120; Spann, 987 So.2d at 450; Bullard v.

Guardian Life Ins. Co. of America, 941 So.2d 812, 819 (Miss. 2006); Sanderson

Farms Inc. v. Ballard, 917 So.2d 783, 790 (Miss. 2005); see also Boone v.

Citigroup, Inc., 416 F.3d 382, 390 n.11 (5th Cir. 2005); Cf. First Trust Nat’l, 220

F.3d at 337–38 (“While fiduciary relationships do often obscure misfeasance on

the fiduciary’s part . . . the principal of a fiduciary is not thereby permitted

permanently and willfully to ignore patent evidence of the fiduciary’s breach so

as to delay indefinitely the accrual of an action against the fiduciary. Statutes

of limitations exist to protect the courts from indolent claimants as well as

defendants from stale claims.”) (emphasis added) (footnote omitted).

The majority opinion glosses over the critical temporal gap between

August 28, 2004 and February 4, 2005 by stating that “[e]ven when a litigant

has reason to suspect there has been some kind of malfeasance in the conduct

of the litigation, he should be permitted to give opposing counsel the benefit of

the doubt in the face of repeated assurances of opposing counsel’s good faith and

best efforts.” This statement, which is unsupported by any authority, improperly

conflates the two prongs of the tolling inquiry under § 15-1-67, thereby creating

an unprecedented exception to the Mississippi Supreme Court’s interpretation

ofthe statute. Guy’s and Brock’s assurances of good faith and best efforts, which

relate to the first prong’s affirmative act of concealment requirement, do not

offset or lessen Illinois Central’s burden to satisfy the due diligence prong.

I respectfully dissent.