Opinion
CIVIL ACTION NO. 2:22-CV-46-KS-MTP
2022-09-20
Glen PACE, Plaintiff v. CIRRUS DESIGN CORPORATION, individually and d/b/a Cirrus Aircraft Corporation; Continental Aerospace Technologies; Amsafe, Inc.; Arapahoe Aero; Performance Aviation, LLC; Wade Walters, individually, d/b/a Performance Aviation, LLC; Charlie Aviation (fictitious defendants), Defendants, XYZ Corporations I through IV (fictitious defendants), Defendants
Wayne E. Ferrell, Jr., Wayne E. Ferrell, Jr., Attorney, Jackson, MS, Mark Timothy Fowler, Schwartz & Associates, PA, Jackson, MS, for Plaintiff. James Aristide Holmes, H. Carter Marshall, Pro Hac Vice, Kevin R. Tully, Pro Hac Vice, Christovich & Kearney, LLP, New Orleans, LA, for Defendant Cirrus Design Corporation. Hugh Ruston Comley, Watkins & Eager, PLLC, Jackson, MS, for Defendant Continental Motor Corporation. Malissa Wilson, Forman Watkins & Krutz, LLP, Jackson, MS, for Defendant Amsafe. William Matthew Vines, Jernigan Copeland Attorneys, PLLC, Madison, MS, for Defendant Arapahoe Aero. Wade Walters, Coleman, FL, Pro Se.
Wayne E. Ferrell, Jr., Wayne E. Ferrell, Jr., Attorney, Jackson, MS, Mark Timothy Fowler, Schwartz & Associates, PA, Jackson, MS, for Plaintiff. James Aristide Holmes, H. Carter Marshall, Pro Hac Vice, Kevin R. Tully, Pro Hac Vice, Christovich & Kearney, LLP, New Orleans, LA, for Defendant Cirrus Design Corporation. Hugh Ruston Comley, Watkins & Eager, PLLC, Jackson, MS, for Defendant Continental Motor Corporation. Malissa Wilson, Forman Watkins & Krutz, LLP, Jackson, MS, for Defendant Amsafe. William Matthew Vines, Jernigan Copeland Attorneys, PLLC, Madison, MS, for Defendant Arapahoe Aero. Wade Walters, Coleman, FL, Pro Se. MEMORANDUM OPINION AND ORDER KEITH STARRETT, UNITED STATES DISTRICT JUDGE
This cause came before the Court on Plaintiffs' Motion to Remand [31]. Defendants Cirrus Design Corporation, Individually and d/b/a Cirrus Aircraft Corporation ("Cirrus"); Continental Aerospace Technologies ("Continental"); Amsafe, Inc. ("Amsafe"); Arapahoe Aero ("AA"); Performance Aviation, LLC ("PA"); Wade Walters, Individually and d/b/a Performance Aviation, LLC ("Walters"); Charlie Aviation (Fictitious Defendants), Defendants, Xyz Corporations I Through IV (Fictitious Defendants) are named by Plaintiff. Defendants Cirrus, Continental, Amsafe, and AA have filed responses [59][57][61][48]. Plaintiff has filed replies [84][77][80][82]. Having reviewed the docket, the parties' submissions, the relevant legal authorities, and otherwise being duly advised in the premises, the Court finds that Plaintiff fails to state a claim against the in-state defendants. Therefore, the motion to remand will be denied.
I. BACKGROUND
This personal injury lawsuit, initially filed in the Circuit Court of Marion County, Mississippi, arises from the November 22, 2019 crash in Smith County, Texas, of a Cirrus SR22T model aircraft owned by Martin Aviation LLC (the "Aircraft"). Plaintiff Glen Pace, a resident of Marion County, Mississippi, was the pilot of the Aircraft that crashed and claims to have sustained personal injuries as a result of the crash. The crash occurred during an intrastate flight that departed from Terrell Municipal Airport in Terrell, Texas, with an intended destination of Gladewater Municipal Airport in Gladewater, Texas. Plaintiff's Amended Complaint asserts multiple claims against diverse Defendants Cirrus, Continental, Amsafe, and AA. Plaintiff also states four claims against non-diverse Defendants Walters and PA. The possible claims against non-diverse Defendants are at issue here.
Cirrus is alleged to have manufactured the Aircraft and its "emergency parachute". Continental is the alleged manufacturer of the Aircraft's TSIO-550-K model engine, Serial No. 1009677, (the "Engine"). AmSafe is the alleged manufacturer of seatbelts, shoulder harnesses, and/or inertial reels equipped on the Aircraft. Finally, AA is alleged to have maintained, overhauled, rebuilt, and/or repaired the Aircraft and/or Engine. Plaintiff alleges that Walters and/or PA purchased the Aircraft from Cirrus in or about February 2014 and owned the Aircraft until October 27, 2017, when it was sold to Martin Aviation. Martin Aviation, in turn, was the Aircraft's registered owner from October 2017 until the crash on November 22, 2019.
On April 11, 2022, Defendants Cirrus and Continental jointly filed a Notice of Removal of Plaintiff's claims to this Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. In this case, the two other nonresident Defendants, AmSafe and AA, also consented to this removal. Defendants argue that Walters and PA are fraudulently joined. As Walters and PA are the only instate Defendants named, the case should be removed to Federal Court if they are fraudulently joined. Plaintiff filed, then a timely motion, for remand on April 26, 2022. It is Plaintiffs' contention that Walters and PA are not fraudulently joined. As such, the case would lack diversity. In that instance, the case would be remanded to state court where it was initially filled.
II. DISCUSSION
1. Applicable law
Plaintiff purports to assert claims against Walters and PA for failing to properly maintain the Aircraft before they sold it to Martin Aviation in October 2017 and for purportedly selling an unairworthy aircraft to Martin Aviation LLC in October 2017. The causes of action that Plaintiff has alleged against Walters and PA are negligence, breach of contract, and fraudulent misrepresentation. Plaintiff raises a further issue that in-state Defendants did not consent to removal, which the Court will deal with first. Walters and PA are the only in-state Defendants. Plaintiff need only sufficiently plead one cause of action against one of these Defendants to destroy diversity.
Federal courts are courts of limited jurisdiction, whose jurisdiction is conferred by the Constitution or Congress. See Energy Mgmt. Servs., LLC v. City of Alexandria, 739 F.3d 255, 257 (5th Cir. 2014); In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286 (5th Cir. 2012). "Because removal raises significant federalism concerns, the removal statute is strictly construed and any doubt as to the propriety of removal should be resolved in favor of remand." Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008); Gasch v. Hartford Accident & Indemnity Co., 491 F.3d 278, 281 (5th Cir. 2007). "Defendants may remove an action on the basis of diversity of citizenship if there is complete diversity between all named plaintiffs and all named defendants, and no defendant is a citizen of the forum State." Lincoln Property Co. v. Roche, 546 U.S. 81, 84, 126 S. Ct. 606, 163 L. Ed. 2d 415 (2005).
The Fifth Circuit has recognized 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 court." Smallwood v. Central Ill. Railroad Co., 385 F.3d 568, 573 (5th Cir. 2004) (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)). There is no dispute regarding the citizenship of the parties and no allegations of fraud; thus, only the second means is at issue.
The Fifth Circuit uses the term "fraudulent joinder" and "improper joinder" interchangeably, but the preferred term is "improper joinder." See Smallwood v. Central Ill. Railroad Co., 385 F.3d 568, 574 n. 1 (5th Cir. 2004) (en banc).
Walters is currently incarcerated outside of Mississippi. As Defendant points out, Walters remains a citizen of Mississippi despite his incarceration outside the state. [59] at p.5. Thus, Walters is a Mississippi resident as Plaintiff has pled. [34] at p.2.
In this Circuit, "the test for fraudulent joinder is whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means 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." Id. One of the means of predicting whether a plaintiff has a reasonable basis of recovery under state law is to "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 laws against the in-state defendant." Id.
In conducting this analysis, the Court finds no need to "piercing the pleadings" as the Defendants have urged.
2. Analysis
a) Consent to Removal
Plaintiff contends that the Court should remand this case because the out-of-state Defendants did not obtain consent from Walters and PA. Generally, removal requires all co-defendants to consent. Jernigan v. Ashland Oil Inc., 989 F.2d 812 (5th Cir. 1993). However, in cases involving allegedly fraudulently or improperly joined parties, the application of this standard would make little to no sense. Id. That is because the moving defendants base removal, in such a situation, on non-moving defendants being fraudulently joined. Id. As such, the non-moving defendants would cease to be defendants and not need to be notified. The defendant need not explain the absence of co-defendants' consent when the allegation is that they are fraudulently joined. Here, the Notice of Removal demonstrates Defendants' contention that in-state Defendants are fraudulently joined. Id. As such, Plaintiff's assertions that Walters and PA need to consent are incorrect and will not serve as a basis for remand.
b) Contract
The central question is privity for a breach of contract action under Mississippi law. For the plaintiff to maintain an action for breach of contract or to recover damages, the plaintiff generally must have privity of contract with the defendant. See, e.g. Allgood v. Bradford, 473 So. 2d 402, 415 (Miss. 1985); Bissette v. Univ. of Mississippi Med. Ctr., 282 So.3d 507, 513 (Miss. Ct. App. 2019) Here no privity of contract exists between Plaintiff and either in-state Defendant. Plaintiff has not pled that privity exists either. [31-34]. While Plaintiff has not alleged this either, a contract action could also be brought as a third party beneficiary. Even if Plaintiff had asserted such an argument, it would fail because Plaintiff is not specifically named or considered in the contract. Oberlin v. Dixon, 251 Miss. 872, 171 So.2d 512, 513 (1965), See also, Miss. Fleet Card, L.L.C. v. Bilstat, Inc., 175 F. Supp. 2d 894, 902 (S.D. Miss. 2001). As such, Plaintiff can not recover. The Court finds Plaintiff has failed to state a claim against in-state Defendants for breach of contract.
c) Fraudulent Misrepresentation
Plaintiff also brings a fraudulent misrepresentation action. Under Mississippi law, the elements of fraudulent misrepresentation are as follows: "(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of the truth; (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury." Elchos v. Haas, 178 So. 3d 1183, 1198 (Miss. 2015) (quoting Holland v. Peoples Bank and Trust, 3 So. 3d 94, 100 (Miss. 2008)). Rule 9(b) of the Federal Rules of Civil Procedure requires a defendant to plead the circumstances constituting fraud or mistake with particularity. Fed. R. Civ. P. 9(b). This means that the plaintiff must include the who, what, when, where, and how of the fraud or misrepresentation in their pleadings. United States v. Bollinger Shipyards, Inc., 775 F.3d 255 (5th Cir. 2014). In addition, for the plaintiff to recover, they must plead that such representations were made to them or that they relied upon said representations. McGee v. Swarek, 733 So. 2d 308, 312 (Miss. Ct. App. 1998). This usually implies that the plaintiff was the "hearer". Id.
Here, Plaintiff does not allege Walters or PA made any specific misrepresentation to him in his amended complaint, which is all the Court is considering at this time. Plaintiff has therefore failed to show that he specifically heard any of this information. Id. Furthermore, Plaintiff has failed to allege how he relied upon such assertions without hearing them. Per Bollinger Shipyards, the plaintiff must allege the who, what, when, where, how, and why. Bollinger Shipyards, 775 F.3d at 255. Plaintiff has failed to do that also. Plaintiff only offers "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements". Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). This is not sufficient to meet the state pleading standard or the federal pleading standard. Miss. R. Civ. P. 9(b). As such, the court finds Plaintiff fails to state a claim for Fraudulent Misrepresentation.
d) Negligence
For a plaintiff to recover in a negligence action, the plaintiff must prove by a preponderance of the evidence each element of negligence: duty, breach, causation, and injury. Miss. Dep't of Mental Health v. Hall, 936 So.2d 917, 922 (Miss. 2006). A failure to establish any one of these elements is fatal to the claim. In the present case before the Court, duty is of primary concern. Plaintiff contends that this Court should derive duty from the FAA regulations. A plain reading of the FAA regulations show that the duty to maintain the aircraft lies with the owner or operator. 14 C.F.R. § 91.403. The plain meaning appears to be the current owner or operator. While there appears to be no law on this particular issue in this Circuit, other courts have dealt with this issue. An Illinois appellate court dealt with this exact issue and supports the Court's plain reading of the statute. In South Side Trust & Sav. Bank of Peoria v. Mitsubishi Heavy Indus., The Illinois appellate court articulated the facially obvious standard that "owner" applied to the plane's current owner at the time of the accident. South Side Trust & Sav. Bank of Peoria v. Mitsubishi Heavy Indus., LTD, 401 Ill. App. 3d 424, 339 Ill.Dec. 638, 927 N.E.2d 179 (2010). The South Side Trust court found no indication of a continuing duty on the prior owner. Id.
It is Plaintiff's contention that, as the owner, Defendant was responsible for maintaining and performing maintenance on the Aircraft in order to maintain its airworthy status. under FAA regulations, Defendant Walters and PA are required to identify and remove deficiencies or defects they know of before advertising an aircraft for sale as airworthy. Plaintiff alleges multiple negligent actions by Defendants Walters and PA. Plaintiff fails to establish the first element of a negligence action, however, duty.
Duty is "the relation between individuals which imposes upon one a legal obligation for the benefit of the other . . . [i]n other words . . . whether the defendant is under any obligation for the benefit of the particular plaintiff." Prosser, The Law of Torts 324 (4th ed. 1971). Per the Courts plain reading of the FAA regulations, supported by South Side Trust, the duty to maintain and inspect the Aircraft lies with the current owner of the Aircraft and not the previous owner. South Side Trust, 401 Ill. App. 3d at 424, 339 Ill.Dec. 638, 927 N.E.2d 179. While Plaintiff would be correct in asserting that Walters and PA had a duty while they owned the plane, that duty ceased to exist when the ownership passed. Plaintiff would also be correct in asserting that Walters and PA may have had a duty to Martin Aviation, but not Plaintiff. The duty Plaintiff speaks of passes through the sale. A duty is a prerequisite for a negligence theory, and no duty existed in this case. Hall, 936 So.2d at 922. Thus there is no possibility of recovery in negligence. Id.
Additionally, In his Reply, Plaintiff also argues that he has stated a cause of action under Restatement (2d) of Torts § 388. [78] at p.10. This argument was not timely raised in his Motion to Remand, and the Court will not address it. See Cavazos v. JP Morgan Chase Bank Nat'l Ass'n, 388 F. App'x 398, 399 (5th Cir. 2010); see also United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005) (noting that "arguments raised for the first time in a reply brief . . . are waived."); Heritage Hunter Knoll, LLC v. Lamar Cnty., Miss., No. 2:19-CV-15-KS-MTP, 2019 WL 3892425, at *3 (S.D. Miss. Aug. 19, 2019). Schneider v. Cal. Dept. of Corr., 151 F.3d 1194, 1197 n.1. (9th Cir. 1998). Plaintiff must raise all claims in the complaints and their amendments. Id. As such, the Court finds Plaintiff has failed to state a claim for negligence.
III. CONCLUSION
For the reasons set forth above, the Court finds that under the facts of this case, Plaintiff has failed to state a claim against any in-state Defendant. Therefore, there has been fraudulent misjoinder, and removal is proper. Accordingly, it is hereby ORDERED that Plaintiffs' Motion to Remand [31] is Denied.
SO ORDERED AND ADJUDGED this 20th day of September 2022.