Willis v. Life Insurance Company of Georgia, No. 4:02CV65-PB (N.D. Miss. 4/3/2002)

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LUCY EVON WILLIS, et al., Plaintiff, v. LIFE INSURANCE COMPANY OF GEORGIA and JESSIE McCRORY, JR., Defendants.

No. 4:02CV65-PB.

United States District Court, N.D. Mississippi, Greenville Division.

April 3, 2002.

MEMORANDUM OPINION

W. ALLEN PEPPER, JR., District Judge.

This cause is before the Court on the plaintiffs' Motion to Remand. The Court, having considered the motions, the responses thereto, and the briefs and authorities cited, is prepared to rule. The Court finds as follows, to-wit:

FACTUAL BACKGROUND

The plaintiffs, Lucy Evon Willis, Beverly G. Willis and Clara Mae Yates, filed this action in the Circuit Court of LeFlore County, Mississippi, against Life Insurance Company of Georgia ("Life of Georgia") and Jessie McCrory, one of its agents, asserting various theories of recovery arising out of alleged racial discrimination on the part of the defendant in its dealings with customers.¹ Life of Georgia removed the action to this Court based on diversity jurisdiction,² as well as federal question jurisdiction,³ arguing that: (1) McCrory was fraudulently joined and (2) the plaintiff's complaint actually alleged violation of federal law.

On May 30, 2001, this Court granted the plaintiffs' motion to remand, finding no fraudulent joinder and holding that the complaint, which expressly disavows any reliance on federal law, did not state a federal claim, although replete with allegations of racial discrimination. Discovery proceeded until, finally, on March 15, 2002, the defendant removed the case once again from the Circuit Court of LeFlore County pursuant to 28 U.S.C. § 1446(b). According to the defendant, a March 8, 2002, letter from Lewis Garrison, counsel in another case, as well as certain questions asked in depositions relating to this case, clearly contain heretofore unknown revelations that the plaintiffs are pursuing a federal claim . . .

The plaintiffs now seeks remand of the action to the Circuit Court of LeFlore County, Mississippi, arguing that the "other paper" relied on by the defendant for jurisdiction reveals no federal claim and, thus, this Court lacks the necessary subject matter jurisdiction.

LEGAL ANALYSIS

Federal courts are courts of limited jurisdiction as defined by the Constitution and statute. See generally B., Inc. v. Miller Brewing Co., 663 F.2d 545 (5th Cir. 1981). Indeed, this Court is well advised to "be certain of its jurisdiction before embarking upon a safari in search of a judgment on the merits." B, Inc., 663 F.2d at 548. As the removing party, the defendants must bear the burden of demonstrating that this action is properly before the Court. Id. at 549; See also Village Fair Shopping Co. v. Sam Broadhead Trust, 588 F.2d 431 (5th Cir. 1978); Ray v. Bird and Son & Asset Realization Co., Inc., 519 F.2d 1081 (5th Cir. 1975). Moreover, the removal statutes are to be strictly construed, and any doubts are to be resolved in favor of remand. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992).

"As a general proposition, removal hinges on whether a federal district court could have asserted original jurisdiction over the state court action had it initially been filed in federal court." Rivet v. Regions Bank of Louisiana, 108 F.3d 576, 582 (5th Cir. 1997), rev'd on other grounds, 522 U.S. 470 (1998). Thus, there are two situations in which removal is proper: (1) where the case involves diversity jurisdiction, 28 U.S.C. § 1332; or (2) where the dispute is one "arising under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331. At issue here is the latter, known as federal 28 U.S.C. § 1446(b) provides:

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

Life of Georgia points chiefly to a letter dated March 8, 2002, arguing that this "other paper" clearly conveys the plaintiff's intent to proceed based on federal law. The March 8th letter is written by Mr. Garrison, counsel for Rosie Lee McDonald in a separate case.⁴ The defendant argues, however, that Garrison is lead discovery counsel in both the McDonald action and the instant case. Thus, according to the defendant, the correspondence from Garrison should be treated as correspondence from Willis' counsel.

The substance of the letter is as follows:

Dear Joe:

At the deposition of Mr. Thompson yesterday, he referenced some studies which may reveal the number of industrial policies issued by Life of Georgia subsequent to 1960, and the breakdown of the number of whites and African-Americans assigned Table A and whites and African-Americans assigned Table R. I believe he said there was some "data" produced at meetings which reflected this information.

We believe this information is germane to our claims that Life of Georgia continued assigning the high rate (Table A) to African-Americans even after socio-economic underwriting commenced, and that the statistics would indicate that this should not have been done absent an intention of Life of Georgia to do so. We believe this information is also relevant to the issue of punitive damages.

Although this information has previously been requested through discovery, it has not been produced. Perhaps there is no such information or "data" which would reveal this information as referenced by Mr. Thompson.

However, if there is information which would provide this data, we again request it. Even if you contend that same is work product, we request it, because we have no means by which we can determine this information.

Thus, please let us know whether there is any documentation or "data" responsive to this information, and if so, whether you will voluntarily produce same without our seeking court intervention.

As you know, time is short, so please let us know whether this information exists no later than Wednesday, March 13, 2002.

(Pl. Exh. A).

As a preliminary matter, the Court harbors serious reservations as to whether this letter constitutes "other paper" within the meaning of 28 U.S.C. § 1446, not because of the nature of the letter, but because of the fact that the letter, as at least a technical matter, derives from litigation in a separate case. See, e.g., Growth Realty Companies v. Burnac Mortg. Investors, Ltd., 474 F. Supp. 991, 996 (D.P.R. 1979) ("The phrase `other paper'. . . cannot refer to pleadings [or correspondence] filed in a separate, distinct case in which the parties are not the same and which has not been consolidated as allowed by local laws of civil procedure with the case at the bar"). The McDonald case, to the Court's knowledge, has not been consolidated with the instant case under local rule or otherwise.

Nevertheless, assuming such a pitfall is paved over by Mr. Garrison's status as lead counsel of — as the defendant puts it — the "discovery team" for both cases, the Court remains unconvinced that the contents of the letter contain some revelation of federal question jurisdiction. The letter contains little more than what is present on the face of the plaintiff's complaint. Indeed, the complaint itself is littered with allegations of racial discrimination of the precise nature revealed in the letter.⁵ Conspicuously absent from the letter, just as in the complaint, is any explicit reference to a federal statute or other source of federal law.

As the defendants are aware, this Court has already evaluated the complaint and held that remand was warranted, despite the numerous charges of racial discrimination contained therein. The Court based its ruling on the Fifth Circuit's unequivocal statement that "[w]ithout complete preemption, the artful pleading doctrine does not apply." Waste Control Specialists, LLC v. Envirocare of Texas, Inc., 199 F.3d 781, 783 (5th Cir. 2000). In that case, the district court, although it found complete preemption did not apply to the statute at issue, employed the artful pleading doctrine to re-characterize the plaintiff's Texas law antitrust claims as federal claims. The district court denied the plaintiff's motion to remand upon concluding that the plaintiff's claims were not viable under state law and, by default, the plaintiff's only claim was federal. In overturning the district court, the Fifth Circuit explained that the practice of determining whether the real nature of the claim is federal, regardless of plaintiff's characterization, is "correctly confine[d] . . . to areas of the law pre-empted by federal substantive law."⁶ Waste Control Specialists, 199 F.3d at 783-84 (citing Caterpillar, Inc., 482 U.S. at 397 n. 11). According to the court:

Although [the plaintiff] could have alleged a federal cause of action in its state petition, it did not. It filed a complaint in state court alleging wholly state claims in a non-preempted field. Its choice is entitled to respect and precluded removing the case to federal court absent circumstances not presented here. For certain, we express no opinion as to the viability of [plaintiff's] state law claims. That is for a Texas court to decide.

Waste Control Specialists, 199 F.3d at 784. See also Terrebonne Home Care v. SMA health Plan, Inc., 271 F.3d 186, 188 (5th Cir. 2001) ("The artful pleading doctrine does not apply . . . unless federal law completely preempts the field"); Owens ex rel. Owens v. Catholic Diocese of Jackson, Mississippi, 169 F. Supp.2d 588 (S.D.Miss. 2001) (declining to apply the artful pleading doctrine to similar circumstances); Credit Acceptance Corp. v. Addison, 2001 WL 33324363 (N.D.Miss. 2000) (rejecting application of the artful pleading doctrine outside the context of complete preemption).

Indeed, as Judge Lee noted in Greer v. MAJR Financial Corp., 105 F. Supp.2d 583, 592, quoting another district court in Alabama:

Defend...