Rebecca LAUGHLIN, Plaintiff-Appellant, v. The PRUDENTIAL INSURANCE CO., et al., Defendants-Appellees.
No. 88-4590.
United States Court of Appeals, Fifth Circuit.
Sept. 5, 1989.
Order on Denial of Rehearing Oct. 11, 1989.
882 F.2d 187
AFFIRMED.
GOLDBERG, Circuit Judge, concurring:
I concur in the result reached by the per curiam opinion. The emaciated state of the plaintiff‘s case, as shown by his pleadings and the Watson Affidavit, justifies the district court‘s summary judgment for Yamaha under any construction of strict liability principles in this context. Under hypothesized facts containing more muscle and fat (not necessarily obese), the legal principles involved in this diversity case may come before the Texas Supreme Court. If and when that day comes, I am confident that the Justices will grasp the nettle.
K. Hayes Callicutt, Jackson, Miss., for P. Eddings.
Clifford K. Bailey, III, John E. Hughes, III, Wells, Wells, Marble & Hurst, Jackson, Miss., for Prudential.
Janet Arnold-Wilson, Edward A. Moss, Oxford, Miss., for AIG, Protective Life & Travelers.
S.T. Rayburn, H. Scot Spragins, Oxford, Miss., for Beneficial Standard.
Al Nuzzo, Jayne Buttross, Jackson, Miss., for F. Bennett.
Before RUBIN, POLITZ, and JOHNSON, Circuit Judges.
POLITZ, Circuit Judge:
Rebecca Laughlin brings this interlocutory appeal contending that the district court erred by refusing to remand this action to state court and by granting partial summary judgment dismissing her claims against Pat C. Eddings. Finding no basis for federal jurisdiction we reverse, vacate, and remand.
Background
We glean the following scenario from the allegations of the pleadings and the record before us. James Laughlin, Sr., a resident of Alcorn County, Mississippi, died as a result of a gunshot wound tо his head on May 25, 1985. His wife, Rebecca Laughlin, was the only other person in the room at the time of his death. After an inquest the coroner concluded that Laughlin had died by accidental means. Local law enforcement officials did not believe that an autopsy was necessary and rеleased the body for burial. Shortly thereafter official investigations concluded with findings that the death was accidental.
James Laughlin was the insured under life insurance policies issued by The Pru-
Rebecca Laughlin filed claims for the accidental death benefits. The insurers declined to either pay or deny the claims on the basis that they were awaiting an autopsy to be performed by the Mississippi State Medical Examiner‘s office. Laughlin contacted that office and was informed that it had no plans to exhume her husband‘s body for autopsy. In January 1986, seven months after her husband‘s death, Laughlin filed a breach of contract suit against the insurers in federal court in the Northern District оf Mississippi. That suit presently pends.
Under Mississippi law insurers are forbidden to require exhumation or autopsy as a condition precedent to the payment of death benefits. See United States Fidelity & Guaranty Co. v. Hood, 124 Miss. 548, 87 So. 115 (1921). At the time that the contract suit was filed exhumation and autopsy could only be authorized by family members,
Shortly after Laughlin filed her federal court suit the insurance companies contacted Dr. Thomas Bennett, the State Medical Examiner, to arrange for the exhumation of James Laughlin‘s body. The State Medical Examiner did not then have the authority to initiate homicide investigations or to petition the court for authority to perform аn autopsy in connection with a criminal investigation. Nevertheless, when the insurance companies requested that he investigate Laughlin‘s death and offered to pay his expenses, Dr. Bennett agreed to undertake the investigation and to serve as a fee-paid expert on their behalf. When a question arose as to whether Alcorn County would have the funds available to pay the expenses of the autopsy the insurance companies offered to pay any costs assessed to the county.
Bennett first sought to exhume the body for autopsy without the benefit of а court order. His efforts were met with stiff resistance by Rebecca Laughlin and local officials. He was advised by the District Attorney, County Attorney, and the Attorney General‘s office that he did not have authority to exhume and autopsy Laughlin‘s body without a court order. Bennett refused an offer by local officials to assist him in obtaining a court order under
In July 1986 the Mississippi Medical Examiners Act of 1974 was repealed and it was replaced by a new Act which broadened the State Medical Examiner‘s authority to investigate deaths and provided that, in cases of suspected homicide, a disinterment and autopsy could be authorized by the State Medical Examiner without a court order.
Invoking the new legislation, Dr. Bennett filed a petition seeking authority to exhume the Laughlin remains. After the petition was filed, but prior to the court‘s ruling, Dr. Bennett left Mississippi to become the Iowа State Medical Examiner. Pat C. Eddings, Dr. Bennett‘s former administrative assistant who had been instrumental in efforts to secure exhumation, continued to
On May 29, 1987, Rebecca Laughlin filed the instant lawsuit in state court against the five insurance companies, Dr. Bennett, and Eddings for abuse of process arising from the court proceedings seeking the exhumation and autopsy of her husband‘s body. The defendants removed the case to federal court and Laughlin moved for a remand on the basis that the parties lacked complеte diversity because Eddings was a Mississippi citizen. Eddings filed a motion to dismiss and a motion for summary judgment.
The district court denied the motion for remand holding that (1) Eddings had been fraudulently joined, and (2) Laughlin‘s complaint stated a separate and independent claim for breach of contract against the fivе diverse insurance defendants which would have been removable if sued upon alone. The district court granted partial summary judgment dismissing the claims against Eddings. Laughlin filed this interlocutory appeal.
Analysis
The threshold issue in this appeal is whether removal was proper. We hold that it was not. Pursuant to
[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
The removing party bears the burdеn of establishing federal jurisdiction. B., Inc. v. Miller Brewing Co., 663 F.2d 545 (5th Cir. 1981). Where there are allegations of fraudulent joinder, the removing party has the burden of proving the fraud. Id.
Rebecca Laughlin is a Mississippi citizen. Each of the defendant insurance companies is a foreign corporation and Dr. Bennett is a citizen of the state of Iowa. The defendants urge that Laughlin named Eddings as a defendant in order to defeat federal diversity jurisdiction. The burden of persuasion placed upon those who claim fraudulent joinder is a heavy one. The removing party “must show either that there is no possibility that the plaintiff would be аble to establish a cause of action against the in-state defendant in state court; or that there has been outright fraud in the plaintiff‘s pleadings of jurisdictional facts.” B, Inc., at 549 (footnote omitted).3
In determining whether remand is appropriate this court must evaluate all of the factual allegations in the light most favorаble to the plaintiff, resolving all contested issues of substantive fact in favor of the plaintiff. B., Inc., 663 F.2d at 549; Bobby Jones Garden Apartments v. Suleski, 391 F.2d 172 (5th Cir.1968). In addition, any uncertainties in controlling substantive law must be resolved in favor of the plaintiff. Id. Applying these rubrics, the court may find fraudulent joinder only if it concludes that the plaintiff has no possibility of establishing a valid сause of action against the in-state defendant. Id.; Parks v. New York Times Co., 308 F.2d 474 (5th Cir.1962), cert. denied, 376 U.S. 949, 84 S.Ct. 964, 11 L.Ed.2d 969 (1964).
Laughlin asserts an abuse of process claim against Eddings as a result of the alleged bad faith initiation of a homicide investigation and attempts by the office of the State Medical Examiner to have the body of her husband exhumed and an autopsy performed. Abuse of process is defined in Mississippi jurisprudence as “the intentional use of legal process for an improper purpose incompatible with the lawful function of the process by one with an ulterior motive in doing so, and with resulting damages.” Dunn v. Koehring Co., 546 F.2d 1193, 1199 n. 19 (5th Cir.1977).
As an initial matter we reject the assertion of the insurance companies that the establishment of an abuse of process claim is precluded by Laughlin‘s failure to respond timely to Prudential‘s requests for admission. Generally, requests for admission which are not denied within 30 days are deemed admitted, Dukes v. South Carolina Insurance Co., 770 F.2d 545 (5th Cir.1985); however,
The insurance companies contend that Eddings cannot be held liable in tort because she was at all times acting as an agent for Dr. Bennett, a disclosed principal. This argument is without merit. An agent receives no shield from the fact that she is an agent or because her principal is also liable for the tort. An agent who uses the legal process in an illegal manner incurs the same liability as she would have incurred had she employed it in her own behalf, 1 Am.Jur.2d, Abuse of Process, Section 19, see Allen v. Ritter, 235 So.2d 253 (Miss.1970); State Use of Richardson v. Edgeworth, 214 So.2d 579 (Miss.1968), and both principal and agent may be held accountable.
The insurance companies next argue that Eddings is immune from liability under
Any medical examiner or duly licensed physician performing authorized investigations and/or autopsies as provided in Sections 41-61-51 through 41-61-79 who, in good faith, complies with the provisions of Sections 41-61-51 through 41-61-79 in the determination of the сause and/or manner of death for the purpose of certification of that death, shall not be liable for damages on account thereof, and shall be immune from any civil liability that might otherwise be incurred or imposed. (Emphasis added.)
Abuse of process is an intentional tort and requires a showing of bad faith. See Wilkerson v. Randall, 254 Miss. 546, 180 So.2d 303 (1965). Accordingly,
The district court also held that removal was appropriate under
The question of removability under
We hold that this case was improvidently removed because the district court lacked jurisdiction. Accordingly, we REVERSE, VACATE all actions taken by the district court, including the granting of summary judgment dismissing the claims against Eddings, and REMAND to the district court with instructions to remand this case to the state court.
ON PETITION FOR REHEARING
PER CURIAM:
Defendants-appellees petition for rehearing, suggesting a need for clarification of our opinion, to underscore that thе panel made no binding findings of fact or conclusions of Mississippi law on the ultimate resolution on the merits of this dispute. It should be apparent from the posture of the case and the language of the opinion that this court did neither, but acted only on the basis of the plaintiff‘s allegations which were taken as proven solely for purposes of the appeal. Further, nothing in the legal analysis can be or should be taken as either rulings or expressions on the merits of the underlying dispute.
With this statement, the petition for rehearing is DENIED.