Mabus I, 884 So.2d at 762 (citations omitted). The trial court, however, relied on Phillips v. New England Mutual Life Insurance Co., 36 F.Supp.2d 345, 348 (S.D.Miss. 1998) (quoting Davidson v. Rogers, 431 So.2d 483, 485 (Miss. 1983)) which states three requirements for fraudulent concealment — the plaintiff must show that the defendant (1) took some action, affirmative in nature; (2) that was designed or intended to prevent; and (3) which did prevent the plaintiff's discovery of the facts giving rise to a claim of fraud.
¶ 21. The plaintiffs however, rely on a number of federal cases, Phillips v. New England Mut. Life Ins. Co., 36 F. Supp.2d 345, 348 (S.D.Miss. 1998); Hignite v. Am. Gen. Life Accident Ins. Co., 142 F. Supp.2d 785 (N.D.Miss. 2001); Myers v. Guardian Life Ins. Co. ofAm., Inc., 5 F. Supp.2d 423, 430-31 N.D. Miss 1998).
Accordingly, Judge Davidson entered an order of remand. In Phillips v. New England Mutual Life Ins. Co., 36 F. Supp.2d 345 (S.D.Miss. 1998), under similar facts, Judge Lee reached the same conclusion as Judge Davidson. Judge Barbour in Chain v. New England Mutual Life Ins. Co. et al, Civil Action No. 3:98-cv-349BN, came to the same conclusion as did Judges Lee and Davidson.
" (First Amended Complaint, p. 26). These are sufficient allegations of intentional conduct by the individual defendants. See Phillips v. New England Mutual Life Ins. Co., 36 F. Supp.2d 345, 348 (S.D. Miss. 1998). The Court further finds that the plaintiffs' complaint complies with Mississippi Rule of Civil Procedure 9(b), which requires that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.
(Complaint ¶ 52). These are sufficient allegations of intentional conduct by the individual defendants. See Phillips v. New England Mutual Life Ins. Co., 36 F. Supp.2d 345, 348 (S.D.Miss. 1998). In its Memorandum Opinion and Order of April 23, 2001, this Court found that the plaintiffs' complaint, while it alleged the requisite elements of fraud, did not comply with Mississippi Rule of Civil Procedure 9(b), which requires that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.
While these are not the only accusations leveled directly against the individual Defendants, these are clearly sufficient allegations of intentional conduct by the individual Defendants so as to render them potentially liable under Mississippi law. See Phillips v. New England Mut. Life Ins. Co., 36 F. Supp.2d 345, 348 (S.D.Miss. 1998) (similar allegations against individual insurance agent deemed sufficient to potentially state cause of action under Mississippi law). Further, the complaint sets forth, in detail, which individual Defendant agent or agents dealt with each Plaintiff. See Complaint, Exh. 1.
The Court finds that the Plaintiffs have sufficiently alleged in paragraphs 16, 20, 21 and 22 of their Complaint, that the individual Defendant engaged in affirmative acts of concealment that prevented the Plaintiffs from discovering their causes of action until such time as to render the filing of this suit untimely.See Phillips v. New England Mut. Life Ins. Co., 36 F. Supp. 2d 345, 349-50 (S.D. Miss. 1998) (similar allegations of fraudulent concealment by individual agent deemed sufficient to potentially toll statute of limitations.); Hignite v. American Gen. Life Accident Ins. Co., 142 F. Supp. 2d 785, 790-91 (N.D. Miss. 2001) (same).
The court finds that the Plaintiffs have sufficiently alleged, in paragraphs 62, 81 and 100 of their Complaint, that the individual Defendant engaged in affirmative acts of concealment that prevented the Plaintiffs from discovering their causes of action until such time as to render the filing of this suit untimely.See Phillips v. New England Mut. Life Ins. Co., 36 F. Supp. 2d 345, 349-50 (S.D. Miss. 1998) (similar allegations of fraudulent concealment by individual agent deemed sufficient to potentially toll statute of limitations); Hignite v. American Gen. Life Accident Ins. Co., 142 F. Supp. 2d 785, 790-91 (N.D. Miss. 2001) (same). In addition, the court finds that the Defendants have failed to establish that the Plaintiffs failed to exercise due diligence in discovering their claims.
The court finds that these allegations are sufficient to toll the applicable statute of limitations on the Plaintiffs claims in accordance with Stephens; thus, this asserted ground for judgment as a matter of law in the Defendant's favor is without merit. See Phillips v. New England Mut. Life Ins. Co., 36 F. Supp. 2d 345, 349-50 (S.D. Miss. 1998) (similar allegations of fraudulent concealment by individual agent deemed sufficient to toll statute of limitations); Hignite v. American Gen. Life Accident Ins. Co., 142 F. Supp. 2d 785, 790-91 (N.D. Miss. 2001) (same); Smith v. Union Nat'l Life Ins. Co., 187 F. Supp. 2d 635, 653 (S.D. Miss. 2001). Next, the Defendant asserts that it is entitled to judgment as a matter of law because the Plaintiffs failed to adequately prove the elements of fraud or gross negligence.
Of course, "agents may incur individual liability when their individual conduct constitutes gross negligence, malice, or reckless disregard for the rights of the plaintiff." Phillips v. New England Mut. Life Ins. Co., 36 F.Supp.2d 345, 348 (S.D. Miss. 1998) (internal quotations omitted). "Conclusory or generic allegations of wrongdoing on the part of the non-diverse defendant are not sufficient" to defeat a properly supported claim of improper joinder.