United States Court of Appeals,
Fifth Circuit.
No. 97-60301.
Hunter W.P. DENMAN, a minor by and through W.T. DENMAN, Jr., Next
Friend, Plaintiff-Appellant,
v.
SNAPPER DIVISION; Actava Group, Inc.; Jim Andrews, doing
business as McComb Appliance & Equipment and/or Andrews Firestone;
Andrews Firestone, Andrews Firestone, Inc., Defendants-Appellees.
Jan. 6, 1998.
Appeal from the United States District Court for the Southern
District of Mississippi.
Before WIENER, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Plaintiff Hunter W.P. Denman ("Hunter") appeals the district
court's summary judgment that North Carolina's products liability
statute of repose bars his claims. We AFFIRM.
I.
On April 21, 1987, Hunter, a minor, severed his left foot
while mowing a lawn with his grandfather's Snapper riding
lawnmower. Although his foot was surgically replaced, he has not
regained its full use. Hunter alleges that the mower was defective
because it was not equipped with a deadman's switch or another
safety device that might have prevented his injury and because it
was accompanied by inadequate warnings.
Hunter's grandfather, W.T. Denman ("Denman"), a Mississippi
resident, purchased the mower in 1980 from Jim Andrews d/b/a McComb
Appliances and Equipment and/or Andrews Firestone or Andrews
1
Firestone, Inc. (collectively "Andrews") in Mississippi. The mower
was manufactured in Georgia by Snapper Division of The Actava
Group, Inc. ("Snapper"), a Delaware corporation with its principal
place of business in Georgia. Denman loaned the mower to his son,
Hunter's father, who at that time lived in North Carolina with
Hunter. The accident occurred in North Carolina. Hunter has since
moved to New Hampshire with his mother; his father continues to
reside in North Carolina.
On May 10, 1996, Denman, the guardian of Hunter's estate,
brought suit on Hunter's behalf in Mississippi state court,
asserting products liability and negligence claims against Andrews,
Snapper, and The Actava Group's successor corporation Multimedia
International Group, Inc. Defendants removed the suit to federal
district court. Hunter moved to remand on the sole ground that the
district court lacked jurisdiction because one of the defendants
was a non-diverse party. The district court concluded that there
was complete diversity of citizenship between the parties and
denied the motion to remand. The district court declined to
address whether removal was improper because Andrews was an
in-state defendant, concluding that the plaintiff had waived this
objection by failing to raise it.
The district court granted summary judgment to defendants on
the ground that Hunter's claim was barred by North Carolina's
six-year statute of repose, which governs all tort claims arising
from the use of an allegedly defective product. See N.C.GEN.STAT.
§ 99B-1(3) (1993). Hunter contends on appeal, as below, that
2
Mississippi law should govern his claim.
II.
We turn first to Hunter's claim that the district court
should have remanded this suit to Mississippi state court. Hunter
moved to remand on the ground that the district court lacked
jurisdiction because of the presence of a non-diverse defendant.
Contrary to Hunter's assertion, however, there was complete
diversity of citizenship between the parties: Hunter was a
resident of New Hampshire at the time he filed suit;1 the
defendants were residents of Mississippi, Georgia, or Delaware.
See 28 U.S.C. § 1332. Hunter should have objected instead that the
presence of Andrews, a resident of Mississippi, violated the
statutory prohibition on the removal of diversity suits if any
defendant is a citizen of the state in which the action was
brought. 28 U.S.C. § 1441(b). Under the law of this circuit,
however, the presence of an in-state defendant is a procedural
defect that is waived unless raised within thirty days of removal.
28 U.S.C. § 1447(c); In re Shell Oil Co., 932 F.2d 1518, 1521,
1523 (5th Cir.1991); see also Williams v. AC Spark Plugs Div. of
GM Corp., 985 F.2d 783, 786 (5th Cir.1993); In re Digicon Marine,
Inc., 966 F.2d 158, 160 (5th Cir.1992) (both explaining that any
defects other than lack of subject matter jurisdiction are waivable
procedural defects).
1
For the purposes of determining whether diversity of
citizenship existed, the citizenship of Denman, Hunter's guardian,
was not relevant. 28 U.S.C. § 1332(c)(2) ("the legal
representative of an infant ... shall be deemed to be a citizen
only of the same State as the infant....").
3
In short, Hunter failed to make the proper objection to
removal.2 Had Hunter moved to remand on the ground that removal
was improper because Andrews was an in-state defendant, remand
would have been required. Because he did not, the district court
did not err in denying the motion to remand.
III.
We next address Hunter's argument that the district court
erred in holding that North Carolina's six-year statute of repose
for products liability claims bars Hunter's claims. He contends
that the district court should have instead applied Mississippi's
statute of limitations.
We review the district court's conflict-of-law determination
de novo. Allison v. ITE Imperial Corp., 928 F.2d 137, 138 (5th
Cir.1991). It is well established that in diversity cases, a
federal court must apply the conflict-of-law rules of the state in
which it sits. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487,
496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941); Allison, 928
F.2d at 138; Mitchell v. Lone Star Ammunition, Inc., 913 F.2d 242,
249 (5th Cir.1990).3
Mississippi follows the "most significant relationship" or
"center of gravity" test for determining the applicable law. See
2
Hunter's argument in the district court that, contrary to the
defendants' assertions in their notice of removal, the Mississippi
defendants were not "fraudulently joined" was insufficient to
preserve his objection based on the in-state defendant rule.
3
To the extent that Hunter argues that this court should apply
North Carolina conflict-of-law principles, he is clearly incorrect.
4
McDaniel v. Ritter, 556 So.2d 303, 310 (Miss.1989) (en banc);
Mitchell v. Craft, 211 So.2d 509, 515 (Miss.1968) (adopting the
most significant relationship test as set out in the then-official
draft of the Restatement (Second) of Conflict of Laws); see
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145(1) (1980) ("The rights and
liabilities of the parties with respect to an issue in tort are
determined by the local law of the state which, with respect to
that issue, has the most significant relationship to the occurrence
and the parties under the principles stated in § 6."). Under
Mississippi law, the substantive law of the place of injury
controls unless another state has a more significant relationship
to the occurrence and the parties. Allison, 928 F.2d at 141-42 &
n. 4.4
Under the Restatement approach adopted by Mississippi, the
court examines the contacts of the relevant states, as set forth in
§ 145, in light of the policy considerations in § 6. See Mitchell,
913 F.2d at 249.5 The Mississippi Supreme Court has noted that
4
North Carolina's products liability statute of repose is
substantive rather than procedural. See Bonti v. Ford Motor Co.,
898 F.Supp. 391, 397 (S.D.Miss.1995), aff'd, 85 F.3d 625 (5th
Cir.1996); Crouch v. General Elec. Co., 699 F.Supp. 585, 590-91
(S.D.Miss.1988); Siroonian v. Textron, Inc., 844 F.2d 289 (5th
Cir.1988) ("Mississippi honors the construction of a statute placed
on it by the courts of the state whose legislature enacted it.")
(citations omitted). If the statute were procedural, Mississippi
would not be bound to apply it. See Allison, 928 F.2d at 144.
5
Section 6 sets forth the following factors:
(a) the needs of the interstate and international
systems,
(b) the relevant policies of the forum,
5
"The principles of Sections 6 and 145 of the Restatement (Second)
defy mechanical application-they are less "rules of law' than
generally-stated guideposts." McDaniel, 556 So.2d at 310, quoted
in Gann v. Fruehauf Corp., 52 F.3d 1320, 1325 (5th Cir.1995). The
contacts taken into consideration under § 145 are: (a) the place
where the injury occurred; (b) the place where the conduct causing
the injury occurred; (c) the domicile, residence, nationality,
place of incorporation, and place of business of the parties; and
(d) the place where the relationship, if any, between the parties
is centered. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145. In this
case, the parties agree that the law of either Mississippi or North
Carolina controls.
The injury occurred in North Carolina. In some cases, such
those involving an automobile accident in which the parties are not
residents of the state where the accident occurred, the location of
the injury is discounted as merely fortuitous. See, e.g.,
Mitchell, 211 So.2d at 513. As the district court correctly
(c) the relevant policies of other interested states and
the relative interests of those states in the
determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of
law,
(f) certainty, predictability and uniformity of result,
and
(g) ease in the determination and application of the law
to be applied.
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6.
6
explained, this is not such a case. See Allison, 928 F.2d at 143.
Hunter was not passing through North Carolina, but actually resided
there at the time of the injury.
Hunter's residency in North Carolina at the time of the
accident is also a relevant contact under § 145(2)(c), which
directs the consideration of "the domicile, residence, nationality,
place of incorporation and place of business of the parties."
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145(2)(c). Defendant Andrews,
on the other hand, is a resident of Mississippi.6
The other two § 145 factors also shed little light on what law
should be applied. Although the parties agree that under §
145(2)(b), the conduct giving rise to the injury took place in
Georgia because the product was manufactured there, no party argues
that Georgia law should be applied. Nor does § 145(2)(d), the
place where the relationship between the parties is centered, aid
our inquiry. See Allison, 928 F.2d at 142. Although the product
was sold in Mississippi by a Mississippi defendant to a Mississippi
resident, the parties to this litigation (i.e., Hunter and the
defendants) had no pre-existing relationship. Thus, the place
where the relationship between the parties, if any, is centered is
duplicative of the place of injury. See Allison, 928 F.2d at 142
n. 5.
6
Denman, the guardian of Hunter's estate and the purchaser of
the mower, is also a Mississippi resident. Because Denman is not
a party to this litigation, however, his residency is not relevant
to our analysis. Cf. 28 U.S.C. § 1332(c)(2) (providing that the
residency of the legal guardian of an infant is not relevant to
determining citizenship for diversity purposes).
7
On two previous occasions, we have addressed the application
of the Restatement factors in products liability cases where the
issue was which state's statute of repose or limitation should be
applied. See Allison, 928 F.2d at 138-44; Mitchell, 913 F.2d at
249-50. Although both decisions inform our decision in this case,
neither is dispositive.
In Allison v. ITE Imperial Corp., we applied Mississippi
conflict-of-law rules to determine whether Tennessee or Mississippi
law applied. 928 F.2d at 138-44. In that case, James Allison, a
Mississippi resident, was injured on the job in Tennessee by a
circuit breaker manufactured in Pennsylvania by a Delaware
corporation with its principal place of business in Pennsylvania
corporation. Id at 138. The court concluded that Allison's claims
were barred by Tennessee's statute of repose. Id. at 144. We
emphasized that under Mississippi's conflict-of-law rules, the law
of the state where the injury occurs controls unless another state
is shown to have a more significant relationship to the occurrence
and parties. Id. at 141-42 & n. 4.
In Mitchell v. Lone Star Ammunition, the court considered
whether Texas or North Carolina law applied to the plaintiffs'
products liability claims. 913 F.2d at 249. The claims in
Mitchell arose out of an accident that occurred in North Carolina
when a defective mortar shell that was manufactured and distributed
in Texas exploded prematurely. Id. Applying Texas conflict-of-law
principles, we held that Texas law applied. Id at 250. We
explained that because the defendants were not from North Carolina,
8
there was "[n]o compelling reason ... why the North Carolina
legislature would have an interest in the application of its
statute of repose to eliminate the claims of foreign plaintiffs
against foreign defendants." Id. at 250. Conversely, we found
that Texas had a substantial interest in the resolution of the
dispute, an interest that was "particularly strong when the
defective product in question was manufactured and placed in the
stream of commerce in the State of Texas." Id. (citation omitted).
Balancing these interests, we concluded that the law of the State
of Texas should apply. Id.
Although this case is similar to Mitchell, it also differs in
three crucial respects. First, Mitchell involved a product that
was manufactured, in part, in Texas, 913 F.2d at 249; here,
although the mower was sold in Mississippi, it was manufactured in
Georgia. Second, the plaintiffs in the Mitchell case were not
residents of state where the injury occurred, id.; in this case,
Hunter was a North Carolina resident as the time of the accident.
Third, and perhaps most importantly, in Mississippi, unlike Texas,
the law of the place of injury is presumed to apply unless another
state has a more significant relationship. Compare Allison, 928
F.2d at 141-42 & n. 4, with Baird v. Bell Helicopter Textron, Inc.,
491 F.Supp. 1129, 1139 (N.D.Tex.1980) (noting that under Texas law
the location of the injury is merely a factor to be considered when
determining the applicable law). Consequently, under the
Restatement factors, Texas had a more significant relationship with
the parties and occurrence than Mississippi has in this case.
9
In light of Mississippi law, the Restatement, and precedent of
this court, we conclude that the sale of the mower in Mississippi
by a Mississippi defendant provides an insufficient basis for
finding that Mississippi has a more significant relationship than
North Carolina. Simply put, Mississippi would have very little
interest in applying its law to litigation arising out of an
accident in North Carolina involving a resident of North Carolina
and caused by a product manufactured in Georgia. Under the
circumstances of this case, the fact that the mower entered the
stream of commerce in Mississippi does not tip the balance in favor
of applying Mississippi law when the Mississippi choice-of-law
rules counsel that the law of the state of injury controls unless
another state has a more significant relationship.
IV.
For these reasons, we AFFIRM the judgment of the district
court.
10