Howard v. Citifinancial Inc ( 2003 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    UNITED STATES COURT OF APPEALS              August 29, 2003
    FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
    Clerk
    No. 02-60608
    (consolidated with 02-60609)
    SUSIE ROSS; DENITA JOHNSON; JAMES CURTIS; LARRY PICKENS; DORIS
    KING; KAREN WHITLEY; RUBY MAGEE; ROY ALLEN, JR.; CHESTER NEWMAN;
    SHARON WHITE,
    Plaintiffs-Appellants,
    versus
    CITIFINANCIAL, INC., a Maryland Corporation, formerly known as
    First Family Financial Services, Inc.; CITIFINANCIAL, INC., a
    Maryland Corporation, formerly known as Commercial Credit of
    Mississippi; CITIFINANCIAL, INC., a Tennessee Corporation,
    formerly known as Commercial Credit of Mississippi; CITIFINANCIAL
    SERVICES, INC., a Georgia Corporation; UNION SECURITY LIFE
    INSURANCE COMPANY; AMERICAN SECURITY INSURANCE COMPANY; TRACY
    MITCHELL; DARLA FARMER; JOE SMITH,
    Defendants-Appellees.
    DENISE HOWARD; LENA CHAMBERS; PRISCILLA CHALMERS; BETTY WHITLEY;
    FAYE DENISE LOGAN; CAROL BUSECK; KELVIN JOHNSON; PHILLIP GORDON;
    DEBBIE GORDON; ALISHA F. WILSON; MARGARET HAYMON; WANDA ALLEN;
    MONROE HOGGATT; EUGENE HAYMON; EVA PARKER HALL,
    Plaintiffs-Appellants,
    versus
    CITIFINANCIAL, INC., a Maryland Corporation, formerly known as
    First Family Financial Services, Inc.; CITIFINANCIAL, INC., a
    Maryland Corporation, formerly known as Commercial Credit of
    Mississippi; CITIFINANCIAL, INC., a Tennessee Corporation,
    formerly known as Commercial Credit of Mississippi; CITIFINANCIAL
    SERVICES, INC., a Georgia Corporation; UNION SECURITY LIFE
    INSURANCE COMPANY; AMERICAN SECURITY INSURANCE COMPANY; TRACY
    MITCHELL; DARLA FARMER; JOE SMITH; JOHN DOES 1-50;
    VALERIE STEVENS,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Southern District of Mississippi
    (5:01-CV-185-BN and 3:01-CV-471-BN)
    Before SMITH, WIENER, and BARKSDALE, Circuit Judges.
    RHESA HAWKINS BARKSDALE, Circuit Judge:
    For these consolidated 
    28 U.S.C. § 1292
    (b) interlocutory
    appeals from remand-denials where diversity-jurisdiction removal
    was based on fraudulent joinder, at issue is whether there is
    arguably   a   reasonable   basis   for     predicting   the     non-diverse
    defendants could be liable under Mississippi law and, therefore,
    not fraudulently joined.     AFFIRMED; REMANDED.
    I.
    Plaintiffs,   all   Mississippi      residents,   entered    into   loan
    agreements with Citifinancial or its predecessors.         In conjunction
    with those loans, Plaintiffs purchased insurance, such as credit
    life and property, through Union Security Life Insurance Company
    and American Security Insurance Company.
    Plaintiffs filed actions in Mississippi state court.                 In
    addition to suing Citifinancial, American Security, and Union
    Security (non-resident corporations), Plaintiffs sued Citifinancial
    employees, who were licensed insurance agents and Mississippi
    residents (collectively:    Individual Defendants).
    2
    Plaintiffs alleged:       their insurance premiums were excessive
    compared to market rates; they were inflated by commissions; and
    their loan interest and principal were increased by including the
    insurance      polices    within   the        loan    amounts    or    unnecessarily
    refinancing the loans.           Plaintiffs claimed breach of fiduciary
    duty, breach of implied covenants of good faith and fair dealing,
    fraudulent and negligent misrepresentation and omission, civil
    conspiracy, negligence, and unconscionability under Mississippi
    law.
    Along   this     line,   where    Defendants      submitted         evidence   of
    Plaintiffs’      loan    documents,      they        contained    signed      separate
    disclosure statements or signed provisions on the note or security
    agreements, making clear that insurance was not required.                        These
    statements included:        “CREDIT LIFE OR CREDIT DISABILITY INSURANCE
    IS NOT REQUIRED TO OBTAIN THIS LOAN”; and “Credit Life and Credit
    Disability Insurance are NOT REQUIRED in connection with this loan
    and were not a factor in the approval of this extension of credit.
    If you chose to obtain life insurance through Lender ... the cost
    thereof   is    shown    ...    herein    and    is    included       in   the   Amount
    Financed”.      Each of the remaining Plaintiffs has at least a high
    school education except for one, who has a ninth grade education.
    In 2001, Defendants removed the actions to federal court under
    
    28 U.S.C. § 1441
    , claiming diversity jurisdiction pursuant to 28
    
    3 U.S.C. § 1332
    .      To    that    end,    Defendants      claimed    Individual
    Defendants were fraudulently joined.
    The       district     court      denied     Plaintiffs’     remand     motions,
    reasoning:         Individual       Defendants         were   fraudulently    joined;
    therefore, jurisdiction was valid under § 1332.                    It held most of
    Plaintiffs’ claims time-barred under Mississippi’s general three-
    year statute of limitations, MISS. CODE. ANN. § 15-1-49(1).                       For
    Plaintiffs’ remaining claims, it concluded there was no reasonable
    basis for predicting Individual Defendants could be liable. Howard
    v. Citifinancial, No. 3:01-CV-471BN (S.D. Miss. 
    13 Mar. 2002
    ); Ross
    v. Citifinancial, No. 5:01-CV-185BN (S.D. Miss. 
    18 Mar. 2002
    ).                     (A
    number of Plaintiffs had been voluntarily dismissed or did not
    assert claims against Individual Defendants.)
    II.
    The interlocutory appeal for each action presents four issues:
    (1) whether the district court applied the correct standard in
    holding       non-diverse      defendants       were    fraudulently   joined;    (2)
    whether, under Mississippi law, an affirmative act is required to
    toll the statute of limitations for the claims at issue; (3)
    whether a party may justifiably rely on an oral representation
    contrary to the terms of a written contract; and (4) whether a
    fiduciary relationship arises in first party insurance contracts
    such as those at issue.
    4
    A.
    Fraudulent joinder is established by showing:              (1) actual
    fraud in pleading jurisdictional facts; or (2) inability of the
    plaintiff to establish a cause of action against the non-diverse
    plaintiff.    Travis v. Irby, 
    326 F.3d 644
    , 647 (5th Cir. 2003)
    (citing Griggs v. State Farm Lloyds, 
    181 F.3d 694
    , 699 (5th Cir.
    1999)).    At issue is the standard to be applied for the second of
    the two means for showing fraudulent joinder.
    The district court noted that the removing party has the
    burden of showing fraudulent joinder, but that Plaintiffs could not
    rest upon mere allegations in their pleadings.       Rather, the court
    could pierce the pleadings.         It concluded:   “In the event the
    court,    after   resolving   all   disputed   questions   of    fact   and
    ambiguities of law in favor of the non-removing party, finds that
    there is ‘arguably a reasonable basis for predicting that the state
    law might impose liability on the facts involved, then there is no
    fraudulent joinder’ and hence no basis for asserting diversity of
    citizenship jurisdiction”.     Howard, slip op. at 8 (emphasis added)
    (citing Jernigan v. Ashland Oil, Inc., 
    989 F.2d 812
    , 815 (5th
    Cir.), cert. denied, 
    510 U.S. 868
     (1993)); Ross, slip op. at 8
    (same).
    Later, however, the district court stated:       “The issue before
    the Court is whether there is a possibility that liability could be
    imposed on the non-diverse Defendants/agents based on the facts of
    5
    the case”.   Howard, slip op. at 10 (emphasis added); Ross, slip op.
    at 9 (same).     The court concluded:              because Plaintiffs could not
    prevail on any of their claims against Individual Defendants, they
    were fraudulently joined.         Howard, slip op. at 30; Ross, slip op.
    at 35.
    Plaintiffs assert that the “reasonable basis” standard is not
    correct; that, instead, the standard is whether “there is no
    possibility that plaintiff [could] establish a cause of action”.
    Burchett v. Cargill, Inc., 
    48 F.3d 173
    , 176 (5th Cir. 1995).
    Plaintiffs also claim the district court shifted the burden of
    proof and did not construe all factual disputes in their favor.
    They   contend    Defendants      only    refuted         their    allegations     with
    allegations, and as such, Plaintiffs were not required to provide
    evidence to refute them — that it is only after Defendants provide
    evidence refuting Plaintiffs’ allegations that Plaintiffs must
    provide evidence.
    Our opinions have described the fraudulent joinder standard in
    various ways.     Recent    opinions,             however,    have clarified that
    standard.      “Any    argument    that       a    gap    exists   between   the    ‘no
    possibility’     and   ‘reasonable       basis’      of    recovery    language     was
    recently narrowed, if not closed”.                 Travis, 
    326 F.3d at 648
    .         The
    court must determine whether there is arguably a reasonable basis
    for predicting that state law might impose liability. Great Plains
    Trust Co. v. Morgan Stanley Dean Witter & Co., 
    313 F.3d 305
    , 312
    6
    (5th Cir. 2002).        This means that there must be a reasonable
    possibility of recovery, not merely a theoretical one.                 Id.; Badon
    v. RJR Nabisco, Inc., 
    236 F.3d 282
    , 286 n.4 (5th Cir. 2000)
    (rejecting contention that theoretical possibility of recovery is
    enough to support no fraudulent joinder, citing “reasonable basis”
    standard);    Griggs,    
    181 F.3d at 701
         (“While     the   burden    of
    demonstrating fraudulent joinder is a heavy one, we have never held
    that a particular plaintiff might possibly establish liability by
    the   mere   hypothetical      possibility    that    such      an   action   could
    exist”.).
    Nonetheless,    the   burden     of   persuasion     on    those    claiming
    fraudulent joinder remains a heavy one.              Travis, 
    326 F.3d at 648
    .
    Along these lines, our court has recognized the similarity between
    standards for Federal Rule of Civil Procedure 12(b)(6) (failure to
    state claim) and fraudulent joinder.          
    Id.
         See Great Plains Trust,
    
    313 F.3d at 312
    .     The scope of the inquiry for fraudulent joinder,
    however, is broader than that for Rule 12(b)(6).
    For fraudulent joinder vel non, it is well established that
    the district court may “pierce the pleadings” and consider summary
    judgment-type    evidence.        Travis,    
    326 F.3d at
       648-49   (citing
    Carriere v. Sears, Roebuck and Co., 
    893 F.2d 98
    , 100 (5th Cir.),
    cert. denied, 
    498 U.S. 817
     (1990)).           In conducting this inquiry,
    the district court “must also take into account all unchallenged
    factual allegations, including those alleged in the complaint, in
    7
    the light most favorable to the plaintiff”.             Travis, 
    326 F.3d at 649
    .    In addition, the court must resolve all ambiguities of state
    law in favor of the non-removing party.          
    Id.
    The district court properly applied these standards. It cited
    the “reasonable basis” standard; and, although it also discussed
    the    “possibility”   of   recovery,    it   never    looked   for   a   “mere
    theoretical possibility of recovery”. It also correctly noted that
    it could “pierce the pleadings”, but that it must construe all
    disputed questions of fact and ambiguities of law in Plaintiffs’
    favor.    Contrary to Plaintiffs’ assertion, it did not shift the
    burden to them upon Defendants’ asserting contrary allegations.
    Finally, it construed all allegations and evidence in Plaintiffs’
    favor.
    B.
    The district court ruled that most of Plaintiffs’ claims were
    time-barred; their claims had not been fraudulently concealed; and,
    had they been, the time for bringing an action would be tolled.              In
    this regard, the court applied Mississippi’s general three-year
    statute of limitations, MISS. CODE ANN. § 15-1-49(1) (“All actions
    for which no other period of limitation is prescribed shall be
    commenced within three (3) years next after the cause of such
    action accrued, and not after”).        E.g., Stephens v. Equitable Life
    Assurance Society of the United States, __ So. 2d __, 
    2003 WL 8
    1343254 at *3 (Miss. 20 March 2003) (applying statute to claim of
    fraud and misrepresentation of sale of insurance).
    Claims   asserted   three   years   after   their   accrual   may   be
    actionable if they were fraudulently concealed and Plaintiffs could
    not discover them with reasonable diligence.        In that event, the
    limitations period begins to run when the claims are discovered.
    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.
    MISS. CODE. ANN. § 15-1-67.   Along this line, Robinson v. Cobb, 
    763 So. 2d 883
     (Miss. 2000), provides that, in order to toll the
    limitations period, Plaintiffs must prove: “[Defendant] engaged in
    affirmative acts of concealment”; and “though [Plaintiffs] acted
    with due diligence in attempting to discover [the claim], they were
    unable to do so”.   
    Id. at 887
     (emphasis added; internal quotation
    and citation omitted).
    Nevertheless, Plaintiffs contend the district court erred by
    requiring them to prove an affirmative act of concealment and
    assert that, in cases of fraud, no subsequent act of concealment is
    necessary.    Defendants counter that, although the Mississippi
    Supreme Court has not ruled on this issue in the context of credit
    insurance sales, it has established that a subsequent affirmative
    act of fraudulent concealment is necessary to toll limitations
    9
    where    the   underlying   claim   is     for    fraud.      Otherwise,   the
    limitations begin to run when Plaintiffs receive documents which,
    if read, would lead to discovery of the claim.
    Mississippi law is unambiguous:              Plaintiffs must prove a
    subsequent affirmative act of fraudulent concealment to toll the
    limitations.      Stephens, 
    2003 WL 1343254
    , held that the fraudulent
    concealment doctrine applied to a fraud claim.              There, plaintiffs
    alleged defendants misrepresented that a life insurance contract
    had   vanishing    premiums.      The     court    stated    that   fraudulent
    concealment was required to toll the limitations period; and,
    because the terms were written in the policies, plaintiffs could
    not show such concealment.
    Further, in Reich v. Jesco, Inc., 
    526 So. 2d 550
     (Miss. 1988),
    plaintiff’s     structure   collapsed     12     years   after   construction.
    Plaintiff sued the builder for negligence, strict liability, and
    breach of warranty.     He claimed the limitations period was tolled
    because the faulty construction was not evident until after the
    collapse.      In holding the limitations period was not tolled, the
    Mississippi Supreme Court cited two prior opinions:              Dunn v. Dent,
    
    153 So. 798
     (Miss. 1934); and Lundy v. Hazlett, 
    112 So. 591
     (Miss.
    1927).
    In each, defendant falsely represented that land conveyed to
    plaintiff was larger than it was.              Limitations were tolled in
    Lundy, but not in Dunn.        In Reich, the court distinguished these
    10
    cases    by    noting    that,   in   Lundy,    defendants    made   “express,
    fraudulent representation[s] ... calculated to conceal ... after
    completion of the sale”, Reich, 526 So. 2d at 552 (internal
    quotation omitted); in Dunn, plaintiffs failed to show defendant
    “did anything that could be construed as a concealment of the
    falsity of the representation”, id. (internal quotation omitted).
    As stated, Mississippi law is unambiguous.              Pursuant to § 15-
    1-67, Plaintiffs were required to prove an affirmative act of
    fraudulent concealment post-completion of the insurance sales in
    order to toll the statute of limitations.
    C.
    The      district   court   held   that,   under   Mississippi    law,   a
    plaintiff has a duty to read a contract before signing it and
    cannot reasonably rely on oral misrepresentations regarding its
    terms.     Accordingly, it held both that the statute of limitations
    was not tolled because Plaintiffs’ claim was not fraudulently
    concealed and that Plaintiffs did not state valid substantive
    claims of fraudulent or negligent misrepresentation.
    Plaintiffs maintain that, under Mississippi law, the rule that
    a party must read a contract before signing it does not apply if
    the party was induced by fraud or false representations in entering
    into that contract.        Defendants counter that, as a general rule,
    Mississippi imputes knowledge of a contract to the signatory, and
    a contracting party cannot reasonably rely on oral representations
    11
    that conflict with its written terms.    Defendants accept that the
    Mississippi Supreme Court has created a limited exception for cases
    of fraud in factum, that is, where the character of the document is
    misrepresented.   Defendants assert that the exception does not
    apply here, because Plaintiffs claim fraud in inducement, that is
    misrepresentations about the terms of the contract.
    “[A] party is under an obligation to read a contract before
    signing it, and will not as a general rule be heard to complain of
    an oral misrepresentation the error of which would have been
    disclosed by reading the contract”.   Godfrey, Bassett & Kuykendall
    Architects, Ltd. v. Huntington Lumber & Supply Co., Inc., 
    584 So. 2d 1254
    , 1257 (Miss. 1991) (emphasis added).        See Russell v.
    Performance Toyota, Inc., 
    826 So. 2d 719
    , 726 (Miss. 2002) (“In
    Mississippi, a person is charged with knowing the contents of any
    document that he executes”.); Cherry v. Anthony, Gibbs & Sage, 
    501 So. 2d 416
    , 419 (Miss. 1987) (in the context of an insurance
    policy, knowledge of contract terms is “imputed to [the contracting
    party] as a matter of law”).
    Stephens, 
    2003 WL 1343254
    , is highly persuasive authority that
    the Mississippi Supreme Court would bar Plaintiffs’ claims. There,
    plaintiffs sued an insurer and their agent, Bell, claiming Bell had
    fraudulently represented that the life insurance policies they had
    purchased had vanishing premiums.    They brought their claims after
    the limitations period, but asserted it was tolled because of
    12
    fraudulent concealment.    Significantly, Stephens cited Godfrey,
    Basset & Kuykendall for the following proposition:
    [I]nsureds are bound as a matter of law by the
    knowledge of the contents of a contract in
    which they entered notwithstanding whether
    they actually read the policy.    Any alleged
    oral agreement in this case does not have any
    effect on the written insurance contract.
    
    2003 WL 1343254
     at *4 (internal citation omitted).         The court
    concluded plaintiffs could not show fraudulent concealment because
    the terms of the insurance contract unambiguously stated that
    premiums did not vanish.      Stephens and the actions at hand are
    indistinguishable.
    The Mississippi Supreme Court appears to apply two exceptions
    to the rule that knowledge of written terms is imputed to contract
    signatories:   fraud in factum and equitable relief.         Neither
    exception applies here.
    First, fraud in factum
    is defined as “[m]isrepresentation as to the
    nature of a writing that a person signs with
    neither knowledge nor reasonable opportunity
    to obtain knowledge of its character or
    essential terms.” BLACK'S LAW DICTIONARY 661
    (6th ed. 1990). Fraud in the inducement, which
    is broader, is defined as “[f]raud connected
    with [the] underlying transaction and not with
    the nature of the contract or document signed.
    Misrepresentation as to the terms, quality or
    other aspects of a contractual relation,
    venture or other transaction that leads a
    person to agree to enter into the transaction
    with a false impression or understanding of
    the risks, duties or obligations she has
    undertaken.” 
    Id.
    13
    FDIC v. Fireman’s Ins. Co., 
    109 F.3d 1084
    , 1089 n.1 (5th Cir.
    1997). Tracking the definition of fraud in factum, the Mississippi
    Supreme Court has applied an exception to the imputed knowledge
    rule:
    If a person is ignorant of the contents of a
    written instrument and signs it under mistaken
    belief, induced by misrepresentation, that it
    is an instrument of a different character,
    without negligence on his part, the agreement
    is void.
    Johnson v. Brewer, 
    427 So. 2d 118
    , 123 (Miss. 1983) (emphasis
    added).
    Although it used the word “induced”, it is clear from this
    language that the Mississippi Supreme Court is discussing fraud in
    factum.   Here, this exception cannot apply because Plaintiffs do
    not claim they misapprehended the character of the documents.
    Second, Godfrey, Bassett & Kuykendall provides an exception
    for equitable relief: “[F]ailure to read a contract before signing
    it, although it may constitute negligence, will not bar equitable
    relief to one who has executed a contract in reliance upon false
    representations made to him by the other contracting party”.    584
    So. 2d at 1259.   See Turner v. Terry, 
    799 So. 2d 25
    , 36 (Miss.
    2001) (citing Godfrey rule, but not applying because plaintiffs
    failed to prove fraud).
    This exception does not apply because Plaintiffs are not
    seeking equitable relief.   They seek damages.   In any event, the
    facts are distinguishable. There, a construction contractor failed
    14
    to read a contract into which he entered with the construction site
    owner.      The contract was drafted by a third-party architect.
    Before    bidding    on   the    project,      the    contractor   contacted   the
    architect    to    inquire   whether      the     contract   included   a   $9,000
    contingency term that had to be included in the bid.                The architect
    said it did not.      Inadvertently, the term was left in the contract
    the contractor signed, and the owner refused to pay the contractor
    $9,000.      The    contractor     sued     the      third-party   architect    for
    restitution based on misrepresentation. Here, Plaintiffs are suing
    the signatories and drafters of the contracts.
    D.
    For the final issue, the district court ruled that, as a
    matter of law, no fiduciary relationship existed between Individual
    Defendants (insurance agents) and Plaintiffs.                Plaintiffs contend
    the district court erred because, at least arguably, a fiduciary
    relationship      could   have    existed.        They    primarily   claim    that
    Mississippi case law has previously held a fiduciary relationship
    exists between an insurance agent and an insured, by virtue of
    their relationship.       Further, they claim that, even if that is not
    the case, the facts indicate Plaintiffs trusted the agents, which
    brought about such a relationship.
    “Under Mississippi law, there is no fiduciary relationship or
    duty between an insurance company and its insured in a first party
    insurance contract.”         Langston v. Bigelow, 
    820 So. 2d 752
    , 756
    15
    (Miss. Ct. App. 2002) (quoting Gorman v. Southeastern Fidelity Ins.
    Co., 
    621 F.Supp. 33
    , 38 (S.D. Miss. 1985)).              See also General
    Motors Acceptance Corp. v. Baymon, 
    732 So. 2d 262
    , 270 (Miss. 1999)
    (“[T]he general rule is that there is no presumption of a fiduciary
    relationship   between   a   debtor   and   creditor.”    (alteration   in
    original; quotation omitted)), cert. denied, 
    534 U.S. 944
     (2001).
    “In Mississippi, the purchase of insurance is deemed to be an arms’
    length transaction.”     Langston, 
    820 So. 2d at 756
    .
    Langston rejected claims like those asserted here:
    [Plaintiff]   claims   that  the  trust   and
    dependence with regard to insurance is
    inherent in the very nature of the contract,
    thus    creating   the    special   fiduciary
    relationship....     We find, though, that
    [Plaintiff] is mistaken in his belief that
    this mere contractual obligation on the part
    of the insurer to pay a claim creates any
    special trust or fiduciary relationship.
    
    Id. at 756-57
    .
    A fiduciary duty may exist to procure insurance, if a bank
    sells credit insurance.      First United Bank of Poplarville v. Reid,
    
    612 So. 2d 1131
     (Miss. 1992), considered whether a fiduciary duty
    arose when a bank employee agreed to purchase credit life insurance
    for a loan applicant.    The court concluded that the bank became an
    insurance agent with a duty to procure insurance.            Nonetheless,
    because the certificate of insurance showed its terms on its face,
    the bank did not have a duty to disclose any terms, even though the
    loan applicants had not read the policy.
    16
    Although    Plaintiffs   point    to   affidavits   in   which   some
    Plaintiffs state they trusted and relied on Individual Defendants,
    none of this evidence shows circumstances justifying such reliance.
    Plaintiffs do not claim Defendants failed to procure insurance;
    moreover, they do not claim Defendants violated the written terms
    of the insurance contract or created a hidden scheme to defraud
    them.   Cf.   American Bankers Ins. Co. of Florida v. Alexander, 
    818 So. 2d 1073
     (Miss. 2001) (fiduciary duty between bank, credit
    insurance company, and lendee arose where claim of “hidden scheme”
    between bank and insurance company increasing insurance rates);
    Lowery v. Guaranty Bank & Trust Co., 
    592 So. 2d 79
     (Miss. 1991)
    (fiduciary duty arose between bank and lendee/insured where long
    history of dealings with bank aside from the note).
    III.
    For the foregoing reasons, because there is not arguably a
    reasonable basis for predicting Individual Defendants could be
    liable under Mississippi law, the remand-denials are AFFIRMED and
    these cases are REMANDED for further proceedings consistent with
    this opinion.
    AFFIRMED; REMANDED.
    17