Bolden, et al v. Nationwide Mtl Ins

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
May 18, 2005
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 04-60286
ARTIS BOLDEN AND MARILYN BOLDEN,
Plaintiffs-Appellants,
VERSUS
FRANK BROOKS; ET AL,
Defendants,
NATIONWIDE MUTUAL INSURANCE CO.,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Mississippi
(00-CV-985)
Before DAVIS, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
Plaintiffs-Appellants Artis and Marilyn Bolden (the “Boldens”)
appeal from the district court’s order denying a motion to remand
their causes of action to state court and subsequent dismissal of
their claims on summary judgment. Finding no error in the district
court’s order and judgment, we affirm.

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Factual and Procedural Background
Artis Bolden (“Bolden”), a Mississippi resident, was injured
in an automobile accident on September 26, 1997, allegedly caused
by an uninsured driver, Frank Brooks (“Brooks”), also a Mississippi
resident. Defendant-Appellee Nationwide Mutual Insurance Co.
(“Nationwide”), a resident of Ohio, then insured the Boldens. The
Boldens’ policy included uninsured motorist coverage. The Boldens
alerted Nationwide to the accident, faxing a copy of the accident
report which indicated that Brooks was uninsured. On October 1,
1997, a Nationwide adjuster met with Bolden and explained the
uninsured motorist bodily injury claim coverage, which was limited
to $300,000. The adjuster confirmed that Brooks was uninsured.
After the accident, Bolden received medical treatment and
remained in contact with Nationwide’s adjuster regarding his claim.
On August 14, 1998, the adjuster offered $21,000 to settle the
claim, but Bolden refused, demanding the policy limit of $300,000.
Nationwide twice raised its offer (first to $40,000, and later to
$100,000), but the Boldens persisted in their refusal of
settlement.
On December 1, 1999, the Boldens sued Brooks for negligence
and loss of consortium in Mississippi court. Brooks failed to
answer, and the state court entered a default judgment against him,
awarding the Boldens $500,000 in compensatory damages and $500,000

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in punitive damages. On August 21, 2000, the Boldens notified
Nationwide of the judgment against Brooks and filed a claim for
recovery of that judgment to the extent of the policy limits. In
their notification, the Boldens stated that if Nationwide failed to
respond within fifteen working days, the Boldens would assume the
claim was denied and would file an amended complaint against
Nationwide in the earlier action against Brooks. Nationwide
responded that it was not bound by the default judgment and renewed
the prior settlement offer of $100,000.
On December 1, 2000, the Boldens filed an amended complaint in
Mississippi court, repeating the negligence claim against Brooks
verbatim and adding as defendants Nationwide and several Nationwide
agents, all of whom were Mississippi residents. Defendants removed
the case to federal district court on grounds of diversity
jurisdiction, arguing the Nationwide agents and Brooks were
fraudulently joined. The Boldens moved to remand the case to state
court. Finding the in-state defendants fraudulently joined, the
district court denied the motion. After discovery, Nationwide
moved for summary judgment, and the district court granted judgment
for Nationwide. The court found that the remaining claim for
uninsured motorist benefits was barred by the statute of
limitations and that the remaining tort-based claims were not
cognizable under Mississippi law. The Boldens timely appealed,
challenging only: (1) the denial of remand and (2) the judgment
entered on the claim for uninsured motorist benefits on the grounds

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that the claim was barred by the applicable statute of limitations
and that the amended complaint did not relate back to the original
complaint filed one year earlier.
Discussion
We review de novo an order denying a motion to remand on the
basis that the non-diverse defendants are fraudulently joined.
Burden v. Gen. Dynamics Corp., 60 F.3d 213, 216 (5th Cir. 1995).
The removing party may show that a non-diverse defendant is
fraudulently joined by demonstrating “there is no reasonable basis
for the district court to predict that the plaintiff might be able
to recover” against him. Smallwood v. Illinois Cent. R.R. Co., 385
F.3d 568, 573 (5th Cir. 2004) (en banc).
In this case, the district court considered separately whether
Brooks, the uninsured driver, and the Nationwide agents were
fraudulently joined. The court determined no reasonable basis
existed to predict the Boldens might recover against Brooks because
they had previously stated the same claim against him and recovered
an award of damages, and a valid, final judgment was entered on
that claim. Therefore, the court held the Boldens’ claims against
Brooks were barred by res judicata. With respect to the Nationwide
agents, the district court determined that the Boldens could state
no cognizable claim because the amended complaint only mentioned
the individual defendants in the introductory paragraphs and made
no allegations regarding the defendants or any of their conduct

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that related to the claims. Accordingly, Brooks and the Nationwide
agents were dismissed, their residencies disregarded in the court’s
subject matter jurisdiction analysis, and the motion for remand
denied.
After a thorough review of the record and the arguments of
both parties, we agree with the district court’s determination that
the Boldens cannot state cognizable claims against Brooks and the
Nationwide agents. The judgment against Brooks was a valid, final
judgment under Mississippi law, and is thus res judicata against
the amended complaint that is not altered as to Brooks. See MISS.
R. CIV. PROC. 55(b) (2005). A claim against agents, such as
Nationwide’s here, may be stated only where the complaint alleges
“individual wrongdoing.” Hart v. Bayer Corp., 199 F.3d 239, 247
(5th Cir. 2000) (quoting Turner v. Wilson, 620 So. 2d 545, 548
(Miss. 1993)). Here, the complaint contains no such allegations of
individual wrongdoing and, indeed, excludes the individual agents
from any mention whatsoever other than in the introduction, stating
their residencies. Thus, the Boldens cannot establish a cause of
action against the Nationwide agents. See Smallwood, 385 F.3d at
573-74.
Therefore, we affirm the court’s determination that Brooks and
the Nationwide agents were fraudulently joined and the court’s
denial of the Boldens’ motion to remand.
This Court reviews the district court’s grant of summary

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judgment to Nationwide on the ground that the claims were barred by
the applicable statute of limitations de novo, using the same
standard as the district court. See Tango Transp. v. Healthcare
Fin. Servs. LLC, 322 F.3d 888, 890 (5th Cir. 2003). Summary
judgment is proper when the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” FED. R. CIV. P. 56(c); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). When making its determination,
the court must draw all justifiable inferences in favor of the
nonmovant. See Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956
(5th Cir. 1993).
The district court determined that, although the Boldens
stated a claim for uninsured motorist benefits, they failed to file
their claim within the three-year statute of limitations and their
complaint did not relate back to the prior filing against Brooks
alone under Mississippi Rule of Civil Procedure 15(c). The court
found that the Boldens failed to state a claim of breach of the
duty of good faith and fair dealing under Mississippi law, and that
the claims for bad faith and gross negligence failed as a result of
the untimely filing of the claim for uninsured motorist benefits.
In Mississippi, a cause of action against an insurer for

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uninsured motorist benefits is an action on contract. See
Employers Mut. Cas. Co. v. Tompkins, 490 So. 2d 897, 906 (Miss.
1986). Mississippi applies a three-year statute of limitations
period to actions for breach of written contract. MISS. CODE ANN.
§ 15-1-49; see also Jackson v. State Farm Mut. Auto. Ins. Co., 880
So. 2d 336, 343 (Miss. 2004). The statute of limitations accrues
when the plaintiff knew or reasonably should have known that the
damages exceeded the insurance limits available from the alleged
tortfeasor. See Jackson, 880 So. 2d at 341 (synthesizing Lawler v.
Gov’t Employees Ins. Co., 569 So. 2d 1151, 1153 (Miss. 1990);
Vaughn v. State Farm Mut. Auto. Ins. Co., 445 So. 2d 224, 226
(Miss. 1984)). The Boldens received notice that Brooks was
uninsured on October 1, 1997, when they received the accident
report and the Nationwide agent explained to them that Brooks
lacked insurance. Moreover, in his sworn deposition, Bolden
averred knowledge that Brooks was uninsured as of October 1, 1997.
Thus, the cause of action accrued on that same date. The Boldens
point to evidence that Nationwide was unsure, as of October 1,
1997, whether Brooks was uninsured. They argue they were only
notified of Brooks’s lack of insurance when Nationwide made a
settlement offer to Bolden on August 14, 1998. This argument lacks
merit. Mississippi’s accrual law does not look to the offer of
settlement as notice of inadequate insurance; instead, it asks when
the Boldens knew or reasonably should have know that Brooks was

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uninsured. See Jackson, 880 So. 2d at 341. In the face of
Bolden’s sworn testimony that he knew, on October 1, 1997, Brooks
was uninsured, the Boldens cannot create a factual dispute as to
whether they knew or should have known Brooks’s insurance status
merely by pointing to Nationwide’s conduct. The district court
properly determined that the amended complaint, filed on December
1, 2000, was barred by the applicable statute of limitations.
In addition, the Boldens’ argument that the amended complaint
should relate back to the original complaint filed December 1,
1999, must fail. The Boldens failed to make the requisite showing
under Mississippi Rule of Civil Procedure 15(c) to permit the
relation back of parties, like Nationwide here, subsequently added
by amendment. See MISS. R. CIV. PROC. 15(c). Specifically, no
showing was made by the Boldens that, under Rule 15(c)(2),
Nationwide “knew or should have know that, but for a mistake
concerning the identity of the proper party, the action would have
been brought” against it. See id. The district court correctly
entered judgment for Nationwide on the claim for uninsured motorist
benefits. Because we so hold, we need not reach Nationwide’s
alternative arguments in support of the district court’s entry of
judgment, raised in response to the Boldens’ appeal.
Conclusion
After oral argument, having independently reviewed the briefs
and relevant portions of the record, we AFFIRM the district court’s

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denial of the Boldens’ motion to remand and the entry of judgment
for Nationwide.
AFFIRMED.

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