IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60462

VERNITA BELL, Individually and on Behalf of E.A.B, Deceased; K.A., by and

Through Jestina Alsworth, Her Natural Mother, Adult Next Friend and

Guardian Ad Litem; JESTINA ALSWORTH, Individually and on Behalf of

T.A. and M.A., Deceased; P.F., By and Through Patricia Felton, Her Natural

Mother, Adult Next Friend and Guardian Ad Litem; S.D., By and Through

Brenda Doss, Her Natural Mother, Adult Next Friend and Guardian Ad

Litem; KATIE COLENBURG, Individually and on Behalf of I.C., Deceased;

THELMA SANDERS; CARL ELLIS; JOHN SCOTT; MARY CULBERT;

BETTY SCOTT; JAMES SCOTT; BERTHA FRANKLIN; LEVANDER

DAVIS,

Plaintiffs-Appellants

v.

TEXACO, INCORPORATED,

Defendant-Appellee

Appeal from the United States District Court for the

Southern District of Mississippi

U.S. Dist. Ct. No. 5:09–CV–192–KS–MTP

Before DAVIS, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

October 12, 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.

Case: 11-60462 Document: 00512018231 Page: 1 Date Filed: 10/12/2012
No. 11-60462

A group of personal injury plaintiffs appeal the district court’s

determination that it had subject matter jurisdiction over this case and its

ultimate disposition of the case in which it awarded monetary sanctions and

dismissed the case for discovery violations. We AFFIRM.

I. FACTS AND PROCEDURAL BACKGROUND

The underlying dispute concerns injuries allegedly sustained due to

exposure to toxic chemicals that leaked from abandoned underground storage

gasoline tanks in Fayette, Mississippi. The property was once owned by W. Joe

Brown, long-since deceased, who operated a gas station on the premises, before

transferring the property to his son who sold it to the county in 1978. The

plaintiffs in this case (“Plaintiffs”) were employees and patients of a Jefferson

County mental services facility subsequently located at the property. They

allege that they were exposed to gas vapors from the leaking underground tanks,

which led to permanent injury. 

Plaintiffs filed this action against Texaco, Chevron, W. Joe Brown and his

estate (collectively the “Brown Estate”), the Southwest Mississippi Mental

Health Foundation (“Mental Health Foundation”), and Doe defendants in

Mississippi state court in 2009. Texaco and Chevron removed the case to 1

federal court under diversity jurisdiction, asserting that the non-diverse

defendants were either nominal or improperly joined. Plaintiffs sought remand

and began, with the leave of the district court, to conduct discovery relating to

the viability of their claims against the non-diverse defendants. After discovery

and briefing, the district court denied Plaintiffs’ motion to remand, finding that

the non-diverse defendants had been improperly joined. Plaintiffs filed three

motions for reconsideration, each of which the district court denied.

 Claims against Chevron were later voluntarily dismissed by Plaintiffs.

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Discovery began in the district court and was met with frequent delays

and failures by Plaintiffs over the course of several months to produce the courtordered interrogatories and other information. Several status conferences were 2

held duringwhich the court attempted to impress upon Plaintiffs the importance

of complying with court orders and discovery requests. After extended

unsuccessful efforts to compel Plaintiffs and their attorneys to act, the court

sanctioned Plaintiffs under Rule 37, awarding costs and fees for the delays to

Texaco. Following another failure by Plaintiffs to timely respond to the order

imposing fees, Texaco filed a motion to dismiss the case for failure to comply

with the court’s orders, which the court granted.

II. STANDARD OF REVIEW

The denial of a motion to remand is reviewed de novo. Miller v. Diamond

Shamrock Co., 275 F.3d 414, 417 (5th Cir. 2001). The removing party bears the

burden of establishing jurisdiction. Id. 

We review the district court’s imposition of sanctions under Federal Rule

of Civil Procedure 37 for an abuse of discretion. Brown v. Oil States Skagit

Smatco, 664 F.3d 71, 76-77 (5th Cir. 2011). “[T]he question we address is not

whether this Court, in its own judgment and as an original matter, would have

imposed any of these sanctions. Rather, we ask only whether the district court

abused its discretion in doing so.” Topalian v. Ehrman, 3 F.3d 931, 934 (5th Cir.

1993) (citing Nat’l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 642

(1976)). Factual findings underlying the imposition of sanctions are reviewed for

clear error. Positive Software Solutions, Inc. v. New Century Mortg. Corp., 619

F.3d 458, 460 (5th Cir. 2010). 

The factual record relies upon the district court’s highly detailed recounting of the 2

discovery process. Bell v. Texaco, Inc., 5:09cv192KS-MTP, 2011 WL 2446577 (S.D. Miss. June

15, 2011). The parties did not challenge the facts as narrated by the district court.

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III. DISCUSSION

A. Subject-Matter Jurisdiction

Plaintiffs argue in their reply brief that the district court did not have

subject matter jurisdiction in this case because complete diversity of citizenship

between the parties did not exist. Whether the district court had jurisdiction 3

based on diversity of citizenship under 28 U.S.C. § 1332 depends on if the nondiverse defendants—the Brown Estate and the Mental Health Foundation—

were improperly joined in the original suit. As citizens of Mississippi, their

joinder would destroy the diversity of citizenship that exists between appellants

(all citizens of Mississippi) and Texaco, a Delaware corporation with its principal

place of business in California. 

The federal removal statute, 28 U.S.C. § 1441(a) allows for the removal of

“any civil action brought in a State court of which the district courts of the

United States have original jurisdiction,” with exceptions. Subsection (b)

specifies that suits not arising under federal law are removable only if none of

the “parties in interest properly joined and served as defendants is a citizen of

the State in which such action is brought.” 28 U.S.C. § 1441(b)(2). The doctrine

of improper joinder entitles a diverse defendant to remove a case to a federal

forum if an in-state defendant has been improperly joined. Smallwood v. Illinois

Cent. R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc). One way to establish

improper joinder is to show an “inability of the plaintiff to establish a cause of

action against the non-diverse party in state court.” Travis v. Irby, 326 F.3d 644,

646-47 (5th Cir. 2003).

Although the law is well-established that issues not raised in an opening brief are 3

waived, see Lockett v. E.P.A., 319 F.3d 678, 684 n.16 (5th Cir. 2003), jurisdictional arguments

may not be waived, see Bailey v. Cain, 609 F.3d 763, 764 (5th Cir. 2010). Therefore, we must

address the issue of jurisdiction here, regardless of the inadequacy of Plaintiffs’ briefing. See

FED. R. CIV. P. 12(h)(3); Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884).

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The parties concede that the Brown Estate and the Mental Health

Foundation are, or would be, citizens of Mississippi for diversity purposes. 

Therefore, the inquiry is whether Texaco can show that there is no possibility

that Plaintiffs can establish a cause of action against the Brown Estate and the

Mental Health Center in Mississippi state court, or rather “that there is no

reasonable basis for the district court to predict that the plaintiff might be able

to recover against an in-state defendant.” Smallwood, 385 F.3d at 573. The

determination of whether a claim exists requires that “there must be a

reasonable possibility of recovery, not merely a theoretical one.” Campbell v.

Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007) (quotation marks and citation

omitted). The burden of persuasion on the party asserting the improper joinder

is a “heavy one.” Id.

In determining whether a non-diverse defendant has been improperly

joined, the 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 in-state defendant.” Smallwood, 385 F.3d at

573. The district court also may, in its discretion, “pierce the pleadings” to

consider summary judgment-type evidence, including affidavits and deposition

testimony. Id., at 573-74. In doing so, however, the court “must also take into

account all unchallenged factual allegations, including those alleged in the

complaint, in the light most favorable to the plaintiff.” Travis, 326 F.3d at 649. 

“[T]he focus of the inquiry must be on the joinder, not the merits of the plaintiff’s

case.” Smallwood, 385 F.3d at 573. 

We nonetheless review de novo the district court’s determination of

improper joinder and denial of remand based on this summary inquiry. 

McDonal v. Abbott Labs., 408 F.3d 177, 182 (5th Cir. 2005). After examining the

Plaintiffs’ claims against the named Mississippi defendants below, we conclude

that Texaco met its burden in demonstrating that Plaintiffs could not establish

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a cause of action against either defendant. Therefore, the district court was

correct to dismiss Plaintiffs’ motion to remand, and had subject-matter

jurisdiction over the case pursuant to § 1332.

Other than a “belief,” the Plaintiffs never provided any evidence to

contravene the Mental Health Foundation’s evidence that it was never, at any

point in time, in a position of control over the land (and gas tanks) at issue.

Plaintiffs cannot sustain a tort action based on premise liability against an

entity that had no control over or connection with the property at issue. See

Brookhaven Funeral Home, Inc. v. Hill, 820 So. 2d 3, 6 (Miss. Ct. App. 2002) (“In

order to prove ‘liability on the part of an owner or occupant of premises for

injuries resulting from the condition of the premises,’ a plaintiff must, as a

preliminary matter, show thatthe defendant had occupation or control.” (quoting

Wilson v. Allday, 487 So.2d 793, 796 (Miss. 1986)). The district court correctly

found that joinder of the Mental Health Foundation was improper.

The district court found that any potential claims against the Brown

Estate are time-barred under the Mississippi statute of limitations applying to

trusts. See MISS.CODE ANN. § 15-1-25. The statute provides that claims against

an estate must be brought within four years of the appointment of the estate’s

executor or administrator. Id.; see also MISS. CODE ANN. § 91-7-239; Townsend 4

Plaintiffs urged the court to consider an annotation to § 15-1-25, suggesting that the 4

section “does not apply to causes of action which accrue after the death of the decedent.” MISS.

CODE ANN. § 15-1-25, Annot. 2. However, Mississippi case law makes clear that the types of

claims exempt from the statute of limitations are narrowly construed to cover claims

attributable to the administrator, as opposed to claims for personal injury attributable to the

decedent or occurring during the decedent’s lifetime. See, e.g., Tom E. Taylor Undertaking Co.

v. Smith’s Estate, 183 So. 391 (Miss. 1938); Sivley v. Summers, 57 Miss. 712 (Miss. 1880)

Bingaman v. Robertson, 25 Miss. 501 (Miss. 1853);. 

In contrast, claims for personal injuries allegedly caused by the decedent, as here, are

subject to the limitations period of § 15-1-25. See Powell v. Buchanan, 147 So. 2d 110, 112

(Miss. 1962); Jones v. Evans, 156 So. 2d 742, 743-44 (Miss. 1963). Plaintiffs’ claims against

the Brown Estate do not involve any action by the administrator, but arise from the decedent’s

alleged tortious conduct during his lifetime. The four year statute of limitations applies.

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v. Estate of Gilbert, 616 So.2d 333, 335-36 (Miss. 1993) (the four year statute of

limitations period begins to run after a ninety day exemption, so a claimant

must bring an action within four years and ninety days of the issuance of the

letters of administration). W. Joe Brown died over twenty years ago, and the

estate itself was closed in 1998. Plaintiffs initially brought this action in 2009.

Mississippi has expressed a public interest in finality of claims against

estates. See Townsend, 616 So.2d at 337. Allowing Plaintiffs to file claims more

than 25 years after Brown’s death would defeat the purpose of the Mississippi

special statute of limitations applying to estates. Moreover, Texaco produced

evidence showing that W. Joe Brown deeded the property to his son in 1975,

three years before the gas station ceased its sales. The gas station on the

property stopped selling Texaco products in 1978. The land was sold by Brown’s

son to the county in 1979. The abandonment of the underground tanks

necessarily had to occur after the time the property ceased selling the Texaco

gas. W. Joe Brown was not the owner of the property at that time. The trial

court concluded that it could “not foresee any possibility of recovery against a

former operator of the tanks, particularly in light of the thirty-four intervening

years.” Bell v. Texaco, 5:09cv192KS-MTP, 2010 WL 1490144, at *4 (S.D. Miss.

April 13, 2010). Plaintiffs offer no competent evidence to the contrary. Thus, the

district court did not err in concluding that the Brown Estate was improperly

joined.

Since the joinder of both named Mississippi defendants was improper as

a matter of law, the district court was correct to deny Plaintiffs’ multiple motions

to remand, and to exercise jurisdiction over the case pursuant to § 1332 on the

basis of complete diversity.

B. Monetary Sanctions 

Plaintiffs appeal the district court’s imposition of monetary sanctions,

totaling $23,617.44, for failing to comply with discovery orders. The district

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court has authority, in its discretion, to impose sanctions against a party who

fails to cooperate in discovery. FED R. CIV. P. 37. The district court “must

require the party failing to act, the attorney advising that party, or both to pay

the reasonable expenses, including attorney’s fees, caused by the failure, unless

the failure was substantially justified or other circumstances make an award of

expenses unjust.” FED.R.CIV.P.37(d)(3). We review the imposition of sanctions

for abuse of discretion. Brown, 664 F.3d at 76-77.

Plaintiffs in this case repeatedly missed deadlines and failed to participate

in discovery. The district court provided numerous time extensions and

opportunities for Plaintiffs to justify their noncompliance, to no avail. Plaintiffs

were warned that the court would impose sanctions for this behavior, but they

continued to ignore court orders. The amount of the sanctions was derived from

an itemization provided by Texaco, to which Plaintiffs failed to respond or

challenge in the district court. Plaintiffs offered no countervailing justification

for their delays other than the attorneys’ difficulty in reaching their clients.

Based on Plaintiffs’ total failure to heed court orders and participate in

discovery, we conclude that the district court did not abuse its discretion in

imposing monetary sanctions upon Plaintiffs.

C. Dismissal

The district court is authorized under FED.R.CIV.P. 37(b)(2)(A) to dismiss

a complaint with prejudice for failure to comply with a discovery order. Batson

v. Neal Spelce Assocs., Inc., 765 F.2d 511, 514 (5th Cir. 1985). We review a Rule

37 dismissal for abuse of discretion, considering a number of factors, including

bad faith, deterrence, prejudice, and negligence. Id.; see also Prince v. Poulos,

876 F.2d 30, 32 (5th Cir. 1989). Applying this standard to the facts of this case,

we have no difficulty concluding that the district court did not abuse its

discretion in dismissing Plaintiffs’ case with prejudice under Rule 37(b)(2).

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First, “dismissal is authorized only when the failure to comply with the

court’s order results from wilfulness or bad faith, and not from the inability to

comply.” Prince, 876 F.2d at 32. Willfulness may be demonstrated by a party’s

“failure to comply with the court’s discovery order even after he was personally

instructed to do so . . . and stated that he understood what was required of him.”

Chisesi v. Auto Club Family Ins. Co., 374 Fed. App’x 475, 477 (5th Cir. 2010)

(unpublished). Willfulness can also be evidenced by a repeated failure to provide

anything other than generalized or non-responsive answers in response to

specific requests for compliance by the court. See Yazdchi v. American Honda

Fin. Corp., 217 Fed. App’x 299, 303 (5th Cir. 2007) (unpublished). The district

court is permitted to “rely on its complete understanding of the parties’

motivations.” Smith v. Smith, 145 F.3d 335, 344 (5th Cir. 1998). 

Here, the district court found that Plaintiffs’ repeated failure to comply

with discovery orders, even after being warned of the possibility of sanctions and

personally instructed on how to comply, constituted willful noncompliance. 

Their attorneys argue that noncompliance was due to communication difficulties

rather than willfulness or bad faith. The attorneys claim they “had a difficult

time reaching the Plaintiffs, communicating with the Plaintiffs, and obtaining

detailed discovery information from the Plaintiffs.” This argument does not

stand in the face of the repeated discovery violations committed. Plaintiffs

regularly ignored court orders, even those ordering the submission of

information as basic as “a list of the Plaintiffs’ alleged symptoms or injuries.” 

On two occasions, Plaintiffs misrepresented that they had complied with an

order with which they had not in fact complied. They admitted being in

possession of requested documents and provided no reasoning to explain the

failure to produce them. Plaintiffs and their counsel were repeatedly warned,

the consequences were explained to them, and they still did not participate in

discovery. The district court did not abuse its discretion in concluding that

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Plaintiffs’ serial failures to comply with discovery orders constituted willful

noncompliance.

Second, “dismissal is proper only in situations where the deterrent value

of Rule 37 cannot be substantially achieved by the use of less drastic sanctions.”

Prince, 876 F.2d at 32. The district court did impose lesser sanctions, the order

of money sanctions in order to reimburse Texaco, prior to dismissing the case. 

At that time, the court again warned Plaintiffs that their case would be

dismissed as a punitive sanction if they continued to ignore court orders. This

warning had no apparent effect on Plaintiffs’ behavior in the litigation. We

conclude that the district court did not abuse its discretion in determining that

Plaintiffs’ previous failure to adhere despite the imposition of less drastic

sanctions indicated that additional monetary sanctions would not have ensured

compliance.

Third, we consider “whether the other party’s preparation for trial was

substantially prejudiced.” Id. at 32. The district court found that Plaintiffs’

failure to provide interrogatory responses or any expert witnesses for more than

one year after the removal of the case substantially prejudiced Texaco’s trial

preparation. Plaintiffs argue Texaco had access to “far more information” than

customarily available, given that a similar case had previously been litigated in

state court. However, there is no law that suggests that the availability of

information from a separate litigation precludes a finding of prejudice. 

Regardless of the availability of information in other litigation, the district court

did not abuse its discretion in finding that Plaintiffs’ noncompliance in this case

caused significant delay and required the filing of multiple motions to compel. 

As such, it was not an abuse of discretion to conclude that Texaco was

substantially prejudiced by Plaintiffs’ noncompliance.

Finally, the law cautions that “dismissal may be inappropriate when

neglect is plainly attributable to an attorney rather than a blameless client, or

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when a party’s simple negligence is grounded in confusion or sincere

misunderstanding of the court’s orders.” Id. at 32. The district court found here

that while the attorneys in this case bore the majority of responsibility for

noncompliance, the clients were not blameless in causing the harm. As their

attorneys themselves argued, the clients in this case were apparently

noncommunicative and difficult to reach. However, at the final status

conference, the clients were in attendance and were personally instructed by the

court of the importance of complying with discovery orders. They had specific

knowledge of the effects on their claim of their failure to comply and continued

the pattern of noncompliance. We conclude that the district court did not abuse

its discretion in finding that the clients were not blameless. 

Considering all four factors applied to Plaintiffs’ repeated noncompliance

with court-ordered discovery, the district court’s order to dismiss the case with

prejudice was not an abuse of discretion.

IV. CONCLUSION

For the foregoing reasons, the district court’s dismissal with prejudice of

the case and the imposition of monetary sanctions against the Plaintiffs is

AFFIRMED.

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