Opinion
No. 4:02CV8LN
July 26, 2002
MEMORANDUM OPINION AND ORDER
This cause is before the court on plaintiff Myra Cooley's motion to remand. Defendant Washington Mutual Finance Group, LLC (successor by merge:: to City Finance Company) and defendants American Bankers Life Insurance Company of Florida and American Bankers Life Assurance Company of Florida (collectively American Bankers) have responded in opposition to the motion and the court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes that plaintiff's motion should be denied.
Plaintiff filed her complaint in the Circuit Court of Jasper County on December 26, 2001 seeking to recovery damages on account of alleged wrongs by defendants in connection with a number of loans obtained by the plaintiff from City Finance Company (which is now Washington Mutual Finance Company) from the late eighties to the mid-nineties. Defendants Washington Mutual and American Bankers, both nonresident companies, removed the case to this court on the basis of diversity jurisdiction, claiming that Cooley, a Mississippi resident, had fraudulently joined as defendants two Mississippi employees of the former City Finance, Donna Manning and Debra Craven. Cooley promptly moved to remand, arguing that there has been no fraudulent joinder in that Manning and Craven are in fact and in law proper defendants against whom potentially viable claims have been alleged. In the court's opinion, however, defendants have amply demonstrated that plaintiff has no reasonable possibility of recovery against either of these named resident defendants.
Plaintiff has alleged a number of claims against these defendants, including fraudulent misrepresentation and/or omission, negligent misrepresentation and/or omission, breach of fiduciary duty, breach of the duty of good faith and fair dealing, negligence and civil conspiracy, all based on allegations that defendants misrepresented and/or failed to disclose certain allegedly material information in connection with plaintiff's loans. Each of her putative claims against defendants is governed by a three-year limitations period, see Miss. Code Ann. § 15-1-49, and yet plaintiff filed her lawsuit in December 2001, over five years from October 3, 1996, the date on which she obtained her last loan from City Finance. Defendants maintain that plaintiff cannot possibly recover from the resident defendants since her claims are time-barred. In response to this contention, plaintiff argues that it is at least reasonably possible that her claims might be found to be timely, either on the basis of fraudulent concealment or application of the discovery rule, and that consequently defendants' argument on this point cannot be a basis for refusing to remand. However, on the undisputed facts presented, neither the doctrine of fraudulent concealment nor the discovery rule, assuming that either or both might be applicable in this context, can reasonably be found to operate to the plaintiff's benefit since the truth respecting the information which plaintiff contends was misrepresented and the facts which she contends defendants failed to disclose could have been discovered by plaintiff through the exercise of reasonable diligence more than three years prior to the date on which she filed suit. The court is of the opinion that for this reason alone, there is no reasonable possibility that plaintiff could establish a claim against the resident defendants.
The court notes at the outset that of the two resident defendants named by plaintiff, there is no evidence that one, Debra Craven, was involved in any of plaintiff's loan transactions. Plaintiff testified by deposition that a woman named Deberah, whose last name may have been Bridges, did participate in some of her loans. Citing her testimony in this regard, defendants state that plaintiff has no possible claim against Debra Craven since she is not Deberah Bridges; in her rebuttal, plaintiff has not contended otherwise. This does not resolve this motion, however, since it is undisputed that Donna Craven was involved in one or more of plaintiff's loan transactions.
The discovery rule tolls the statute of limitation when a plaintiff does not have actual or constructive notice of the facts that would entitle him to bring an action. See Miss. Code Ann. § 15-1-49(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."); Donald v. Amoco Prod. Co., 735 So.2d 161, 166 (Miss. 1999) (where discovery rule applies, "the statute of limitations does not run against one who has neither actual nor constructive notice of the facts that would entitle him to bring an action"). Fraudulent concealment of a cause of action tolls the statute of limitations. Myers v. Guardian Life Ins. Co. of America, Inc., 5 F. Supp.2d 423, 431 (N.D. Miss. 1998). See also Miss. Code Ann. § 15-1-67 ("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.").
The court does recognize plaintiff's assertion that the resident defendants need not have engaged in acts of affirmative concealment in view of their fiduciary duty of disclosure. However, inasmuch as there are no facts supporting plaintiff's allegation of a fiduciary duty, or at least no facts suggesting a fiduciary duty to disclose the information allegedly concealed or omitted, plaintiff's argument lacks merit. Indeed, in this vein, the court would note that in her deposition testimony, though plaintiff repeatedly stated that she did not read the documents that disclosed pertinent information concerning the loan (including the fact that credit insurance was included, that credit insurance was not required, the amount of the premium, et cetera) because she trusted defendants, when specifically questioned concerning the basis for this proclaimed trust in the resident defendants given her lack of any ongoing relationship with them, plaintiff clarified that it was not so much the individual defendants she trusted as it was the lending institution itself, City Finance. She testified:
Q. And you're sitting here getting a loan and obtaining insurance, all this kind of stuff, and you did not even ask her what you were signing?
A. No, I trusted her.
Q. How long did you know her? You trusted her? How long did you know her?
A. It wasn't that I knew her. I trusted the — I trusted City Finance.
There are other reasons, though, for reaching this conclusion, all of which have been fully addressed and explained in a number of prior opinions by the court, and in particular, Strong v. First Family Financial Services, Inc., 202 F. Supp.2d 536 (S.D. Miss. 2002); Harrison v. Commercial Credit Corp., No. CIV.A. 4:0lCVl5lLN, 2002 WL 548281 (S.D. Miss. 2002); Ellis v. Washington Mutual Finance Group, Civ. Action No. 4; 01CVl44LN (S.D. Miss. May 7, 2002); Howard v. CitiFinancial, Inc., 195 F. Supp.2d 811 (S.D. Miss. 2002); Ross v. CitiFinancial, Inc., 2002 WL 461567 (S.D. Miss. 2002). The complaint in each of the referenced cases resembles, or is practically identical to the complaint filed on behalf of plaintiff in the case sub judice; and in this case, for the reasons assigned in these prior decisions denying motions to remand, the court is of the opinion that this plaintiff has no greater possibility of recovery than the plaintiffs in the referenced cases. That is to say, she has no reasonable possibility of recovery and her motion to remand will, therefore, be denied.
Based on the foregoing, it is ordered that plaintiff's motion to remand is denied.