United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                                                               July 7, 2005
                      FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                          No. 04-60766



     PATRICIA BOONE, ET AL,


                                         Plaintiffs,


     PATRICIA BOONE; MANDOLYN BOYD;
     MARY JORDAN; MARY MCBRIDE;
     ARTHAWAY MCCULLOUGH; CONSTANCE
     MCFARLAND; EUGENE PAINE; BERNICE
     PAINE; MARY SPRATT; PEGGY WASHINGTON,

                                         Plaintiffs-Appellants,


          versus


     CITIGROUP INC; CITIFINANCIAL INC;
     ASSOCIATES FIRST CAPITAL CORPORATION;
     ASSOCIATES CORPORATION OF NORTH AMERICA;
     PAUL SPEARS; D LAVENDER; MICHELLE EASTER;
     JOHN DOES 1 - 50; CITIFINANCIAL CORPORATION,

                                         Defendants-Appellees.




          Appeal from the United States District Court
            for the Northern District of Mississippi



Before GARWOOD, GARZA, and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

     Appellants, all of whom are residents of Mississippi, brought
suit in Mississippi state court alleging only state law claims

against   five   out-of-state   corporations    and   three   individual

Mississippi residents.   One of the corporate appellees removed the

case to federal court on the ground that the three in-state

residents had been improperly joined in order to defeat diversity

jurisdiction.    The district court denied appellants’ motion to

remand and granted summary judgment to appellees on the merits.

Appellants appeal this disposition principally on the ground that

our recent decision in Smallwood v. Ill. Cent. R.R. Co., 

(5th Cir. 2004) (en banc) cert. denied 

(2005)

(Smallwood II), establishes that the doctrine of improper joinder

does not apply under the facts of this case and, accordingly, the

district court lacked subject matter jurisdiction under 28 U.S.C.

§ 1332.   We affirm.

                                  I.

     The nine appellants are residents of Mississippi.1        Each

appellant obtained at least one consumer loan from First Family

Services, Inc (First Family) at First Family’s offices in

Aberdeen, Amory, or Tupelo, Mississippi.       The most recent of

these loans originated on May 12, 1998.    Appellants also

purchased credit insurance from First Family to insure against

the possibility of default in the event of, for example, death or


     1
       Though the style of this case includes Mary McBride as an
appellant, she died while this case was before the district court
and her estate has chosen not to pursue her claims.

                                   2
serious illness.

     In October 2001, appellants, later joined by several since-

dismissed co-plaintiffs, filed a complaint in the circuit court

of Monroe County, Mississippi.   They generally alleged that First

Family engaged in a pattern of unlawful misrepresentation and

non-disclosure in connection with the loans and credit insurance.

Appellants contend that First Family exploited their lack of

sophistication in inducing them to buy credit and insurance

products they did not need, did not want, or did not know they

had purchased.   Appellants do not allege that the relevant terms

of the transactions were not disclosed in the written instruments

themselves.   Rather, they contend that First Family and its

employees orally misrepresented what was in the written

instruments, which, appellants maintain, they could not

understand because they lacked the sophistication to do so.2

Appellants sought to recover on state law claims for common law

fraud, fraud in factum, constructive fraud, civil conspiracy,

unconscionability, economic duress, fraudulent deceit, continuing

fraudulent misrepresentation, fraudulent concealment, and the

intentional infliction of emotional distress.   The removed state

court complaint expressly limits the claims asserted to those


     2
      Appellees dispute that appellants were at their mercy.
Appellees cite evidence, including deposition testimony,
establishing that appellants all have experience with consumer
credit, mortgages, banking, and other aspects of personal
finance.

                                 3
arising under Mississippi law and affirmatively excludes any

federal claims.

     Appellants named eight defendants, five of which were

corporations which were citizens of states other than Mississippi

and three of whom were individual Mississippi residents.3

Significantly, appellants did not sue First Family.       Appellants

did, however, sue two related entities, Associates First Capital

Corporation and Associates Corporation of North America, both of

which are Delaware corporations.       Associates First Capital

Corporation is the parent corporation of Associates Corporation

of North America and First Family is a subsidiary of one or the

other.   Appellants also sued Citigroup, Inc., a Delaware

corporation, because on August 30, 2000 Citigroup, Inc. acquired,

and became the successor in interest to, Associates First Capital

Corporation.   Citifinancial Corporation and Citifinancial, Inc.,

each likewise a Delaware corporation owned by Citigroup, Inc.,

were also named defendants because First Family was apparently

merged into (or sold all its assets to) the Citifinancial

entities.   It is undisputed that each of the five corporate

defendants is and was at all relevant times a citizen of a state

other than Mississippi under 28 U.S.C. § 1332(c)(1) and that the

amount in controversy exceeded $75,000.


     3
      The complaint also named fifty “John Doe” defendants but
the complaint was never amended to include any person or entity
in addition to the eight named defendants.

                                   4
     Finally, appellants also named three individual Mississippi

residents.   The individual defendants had been at all relevant

times employees of First Family and were alleged to have been

directly or indirectly involved in the loan and credit insurance

process for at least some of the appellants.   Defendant Paul

Spears supervised several First Family branches.   Defendant

Durlynn Lavender managed the First Family branch in Aberdeen,

Mississippi.   Defendant Michelle Easter was a loan officer at the

same branch.

     On November 16, 2001, Citigroup, Inc. removed the suit to

the Northern District of Mississippi, contending that the three

individual defendants had been improperly joined   to destroy

diversity jurisdiction under 28 U.S.C. § 1332 in that there was

no reasonable possibility of recovery against them because, inter

alia, the claims against them were barred by the Mississippi

statute of limitations.   Shortly thereafter, appellants moved to

remand on the apparent ground that joinder was proper because

there was a reasonable possibility that they could recover

against the non-diverse appellees.4   After allowing remand-




     4
      We infer the apparent ground of appellants’ motion to
remand by reading the district court’s order denying the
requested relief. Appellants’ memorandum in support of its
motion was not in the record even though the motion itself
expressly referred to a memorandum in support.

                                 5
related discovery, the district court5 determined: (1) recovery

against the three individual defendants was indisputably

precluded by Mississippi’s three-year residual statute of

limitations, Miss. Code. Ann. § 15-1-49; (2) appellants failed to

read the loan and insurance contracts at issue and were therefore

not entitled to assert that there were discrepancies between the

contracts and oral representations allegedly made by the non-

diverse appellees; and (3) none of the five appellants who were

deposed as part of the remand-related discovery could identify a

single misrepresentation made by any of the three non-diverse

appellees.6   Based on these conclusions, the district court

denied the motion to remand, reasoning that the impossibility of

recovery against the non-diverse appellees meant that joinder of

the non-diverse appellees had been improper and thus subject

matter jurisdiction existed under 28 U.S.C. § 1332.

     On December 29, 2003, following the close of discovery,

appellees, including the three non-diverse individual defendants,

moved for summary judgment.   On January 21, 2004, before they

filed their memorandum in opposition to the pending motion for

summary judgment, appellants filed a second motion for remand,



     5
      The parties consented to trial by magistrate judge so
references to the district court refer to proceedings conducted
by the magistrate judge.
     6
      The district court also summarily denied a rule 59(e)
motion to reconsider the denial of remand.

                                 6
arguing that two intervening appellate decisions, Smallwood v.

Ill. Cent. R.R. Co., 

(5th Cir. 2003) (Smallwood I),

and Collins v. Am. Home Prod. Corp., 

(5th Cir.

2003), established that the district court had erroneously denied

remand.     On February 23, 2004, the district court entered an

order “withholding” any ruling on the motion to remand until May

1, 2004, or the en banc decision in Smallwood, whichever came

first.7

     In the meantime, however, appellants filed a response in

opposition to summary judgment in which they apparently claimed

that the statute of limitations was tolled on the grounds of

fraudulent concealment and a related 1997 class action in

Arizona.8    The district court, without waiting for the May 1,

2004 deadline to expire, issued an order on April 8, 2004,

granting summary judgment to all defendants.     The basis of the

district court’s summary judgment order was that appellants’

claims were untimely as to all defendants under the Mississippi

three-year residual statute of limitations.


     7
       Smallwood I was taken en banc December 19, 2003. See 

. The district court apparently selected Friday May 1,
2004, as the deadline to ensure that the parties would be able to
get back on track for the pretrial conference scheduled for
Monday, May 11, 2004, and the trial scheduled to begin two weeks
later.
     8
       Once again, the record does not contain appellants’ legal
memorandum. The record only contains exhibits to the memorandum
which, apparently, would have argued that there remained material
facts in dispute.

                                   7
     Appellants timely filed a Rule 59(e) motion to alter or

amend the judgment, arguing that the district court erred by

ruling on the merits of their claims without first addressing the

threshold issue of subject matter jurisdiction raised by their

second motion to remand.   They also maintained that the district

court erred in concluding that a class action in Arizona, and a

related global settlement, did not toll the statute of

limitations as to all or at least some of the diverse corporate

defendants.   On August 6, 2004, the district court denied the

motion on the ground that, whatever the outcome of the Smallwood

case, the statute of limitations had run on all of appellants’

claims as to all defendants.

     Appellants then filed a timely notice of appeal.    While

their appeal was pending and before briefs were due, this court

issued its en banc decision Smallwood II, and it is upon this

case that appellants primarily rely in challenging subject matter

jurisdiction.

                                II.

     Appellants contend on appeal that this case should be

remanded for want of subject matter jurisdiction under section

1332 because defendants interposed a “common defense” of the

statute of limitations that disposed equally of all claims

against all defendants and, under Smallwood II, such a “common




                                 8
defense” precludes a finding of improper joinder.9

                                A.

     The denial of a motion to remand for want of subject matter

jurisdiction is reviewed de novo.    Miller v. Diamond Shamrock

Co., 

, 417 (5th Cir. 2004).   Appellees, as the

removing parties below, bear the burden of establishing

jurisdiction.   Frank v. Bear Stearns & Co., 

, 921-22

(5th Cir. 1997).

     A motion to remand is normally analyzed with reference to

the well-pleaded allegations of the complaint, which is read

leniently in favor of remand under a standard similar to Rule

12(b)(6).   Smallwood 

.   The district court,

however, may allow limited remand-related discovery, and conduct




     9
       As a preliminary matter, we reject appellee’s contention
that Smallwood II does not apply to the instant case because it
was issued after the district court entered its summary judgment.
Appellees cite, among other authorities, Bailey v. Ryan
Stevedoring Co., for the proposition that a “change in decisional
law after entry of judgment does not constitute exceptional
circumstances [under FED. R. CIV. P. 60(b)(5) & (6)] and is not
alone grounds for relief from a final judgment.” 

,
160 (5th Cir. 1990). The relevant and obvious distinction
between Bailey and the instant case is that the change in
decisional law occurred after Bailey lost both in the district
court and on appeal to this court. In the instant case, on the
other hand, the potentially important change in decisional law
occurred while the appellants’ appeal was still pending. It is
well-settled that in such cases the new law must be applied with
the full force of the precedent that it is. See, e.g., Concerned
Citizens of Vicksburg v. Sills, 

, 649 (5th Cir.
1978).

                                 9
a summary judgment type inquiry thereupon.10   

Citigroup removed this ostensibly

non-diverse case to federal district court on the ground that

appellants had improperly joined the non-diverse individual

defendants, thereby destroying diversity and denying the diverse

defendants a federal forum.    There are two ways to establish

improper joinder: “(1) actual fraud in the pleading of

jurisdictional facts, or (2) inability of the plaintiff to

establish a cause of action against the non-diverse party in

state court.”    Smallwood II, 385 at 573 (citing Travis v. Irby,

, 646-47 (5th Cir. 2003)).    Citigroup in the district

court and appellees on appeal do not allege any outright fraud in

the drafting of the complaint, so this case turns on the second

Travis test.    Following this approach, Citigroup sought to

establish that joinder was improper because there was “no

reasonable basis for the district court to predict that the

plaintiff[s] might be able to recover against [the] in-state

defendant[s].”    Id.; see also Badon v. RJR Nabisco, Inc., 

, 286 n. 4 (5th Cir. 2000) (stating that it is

insufficient for the party seeking remand to adduce a “mere

theoretical possibility” of recovery against the non-diverse



     10
       Appellants do not contend that the district court in any
way erred in permitting remand-related discovery in this case.

                                 10
defendant) (emphasis omitted).    In particular, Citigroup argued

that, in light of remand-related discovery, there was no reason

to believe that any of appellants’ claims against the non-diverse

appellees were timely under Mississippi’s three-year statute of

limitations.

     The district court agreed and denied remand primarily on the

ground of limitations.    The district court then exercised subject

matter jurisdiction over the case under the improper joinder

doctrine.   Following regular discovery, the district court

ultimately granted summary judgment to all of the defendants,

diverse and non-diverse alike, on the same residual statute of

limitations defense.     Smallwood II held that “when a nonresident

defendant’s showing that there is no reasonable basis for

predicting that state law would allow recovery against an in-

state defendant equally disposes of all defendants, there is no

improper 

.   Appellants argue that

under Smallwood II, there was no improper joinder in this case

because the same statute of limitations, if it precluded their

claims against the non-diverse defendants, necessarily equally

precluded all claims against all defendants.    Accordingly,

appellants contend that the parties remain incompletely diverse

and, consequently, that there is no federal subject matter

jurisdiction over their case.

                                  C.


                                  11
     In Smallwood II, plaintiff Smallwood, a Mississippi

resident, was injured when her car was struck at a railroad

crossing in Mississippi by a train operated by the Illinois

Central Railroad Company (Illinois Central), an Illinois

.   The railroad crossing was

maintained by the Mississippi Department of Transportation (MDOT)

with equipment it had purchased using federal funds.    

against both Illinois Central and the MDOT

in Mississippi state court solely on state law causes of action.

the case to federal court where

it argued that Smallwood’s negligence claims against the MDOT

were preempted by the Federal Railroad Safety Act, 49 U.S.C. §

20101 et seq, and, as such, that the MDOT had been improperly

joined.   The district court agreed and denied remand because

there was no realistic reason to believe that Smallwood could

recover against the non-diverse MDOT.    Smallwood v. Ill. Cent.

R.R., 

, 693-94 (S.D. Miss. 2002).    Then,

applying the law of the case doctrine, the district court granted

summary judgment to Illinois Central on precisely the same

preemption ground.   Smallwood v. Ill. Cent. R.R., 2002 U.S. Dist.

LEXIS 27674, *13-17 (S.D. Miss. August 13, 2002) (noting that

Smallwood had adduced no evidence or argument suggesting that the

prior preemption conclusion against the MDOT did not equally

compel judgment for Illinois Central).


                                12
     The en banc court reversed the district court’s judgment and

directed remand to state court.    Where, as in Smallwood, the

diverse defendant establishes that a non-diverse defendant was

improperly joined by way of a showing that equally disposes of

all claims against the non-resident defendant as well, there is

no improper joinder because the non-resident defendant has merely

demonstrated that the plaintiff’s entire case is without merit

and an improper joinder inquiry is about subject matter

jurisdiction, not the merits of the entire case.    Smallwood II,

385 at 575-76 (citing Chesapeake & O.R. Co. v. Cockrell, 34 S.

Ct. 278 (1914)); McDonal v. Abbot Laboratories, — F.3d —   (5th

Cir. 2005), 

, * 15 (“As long as the

asserted defense applies uniformly to all defendants and

dismisses the suit as a whole, the resident defendants were no

more improperly joined than the non-resident defendants.”).      It

bears emphasizing that Smallwood II applies “only in that limited

range of cases where the allegation of improper joinder rests

only on a showing that there is no reasonable basis for

predicting that state law would allow recovery against the in-

state defendant and that showing is equally dispositive of all

(emphasis added).   See also 

(“when, on a motion to remand, a showing that compels a

holding that there is no reasonable basis for predicting that

state law would allow the plaintiff to recover against the in-


                                  13
state defendant necessarily compels the same result for the

nonresident defendant, there is no improper joinder; there is

only a lawsuit lacking in merit”) (emphasis added); 

(same).

     Thus, the crux of Smallwood II’s holding is that “only”

where the showing that there is no reasonable basis for

predicting state law would allow the plaintiff to recover against

the resident defendant is such that the same showing “equally”

and “necessarily” “compels” the conclusion that recovery is

precluded against “all” non-resident defendants, then there is no

improper joinder, but simply a wholly meritless suit.   That is

not the situation here.

     Although it is true that the district court denied remand

and granted summary judgment on the basis of the same residual

statute of limitations, it is not true that the statute of

limitations defense assertion by the resident defendants

“equally” and “necessarily” “compel[led]” dismissal of all claims

against all the diverse defendants.

     In broad strokes, appellants allege that the non-diverse

appellees induced them to buy credit and insurance products by

orally misrepresenting the terms of the contracts at issue. The

appellants contend that this conduct constituted an array of

state law frauds and the intentional infliction of emotional

distress.   Significantly, none of the allegations in the amended


                                14
complaint aver a tortious act after May 12, 1998, the origination

date of the last loan at issue.    This date is thus the accrual

date for the most recent of appellants’ claims.    See Andrus, et

al. v. Ellis, et al., 

, 180-82 (Miss. 2004).     The

initial complaint, however, was filed three and a half years

later on October 5, 2001, meaning that even the most recent

claims against the non-diverse appellees are plainly time-barred

by Mississippi’s three-year residual statute of limitations.11


     11
       In the section of their brief contesting summary
judgment, appellants argue that summary judgment in favor of both
the non-diverse and diverse appellees was error because, inter
alia, the statute of limitations was tolled as to all appellees
by their fraudulent concealment of the facts giving rise to this
suit. See MISS. CODE ANN. § 15-1-67.
     However, appellants provided no summary judgment evidence
tending to support a conclusion that the statute of limitations
was tolled by any fraudulent concealment on the part of any
appellee. Appellants bear the burden of establishing fraudulent
concealment by showing both (1) an affirmative act to conceal the
underlying tortious conduct, and (2) a failure to discover the
factual basis for the claims despite the exercise of due
diligence. Robinson v. Cobb, 

, 887 (Miss. 2000).
The affirmative act of concealment must have occurred after and
apart from the discrete acts upon which the cause of action is
premised. Stephens v. Equitable Life Assur. Soc’y of the U.S.,

, 83-84 (Miss. 2003). Yet following discovery,
appellants were unable to produce any summary judgment evidence
of even any material misrepresentation by any of the appellees,
much less a post facto act of concealing the facts giving rise to
the fraud claims. As to infliction of emotional distress, there
is no summary judgment evidence of any wrongful act done by any
appellee to any appellant within the limitations period.
Furthermore, appellants do not anywhere argue that they were even
minimally duly diligent in the management of their affairs.
Nowhere, for example, do appellants challenge the district
court’s finding that none of them even bothered to read the
written instruments at issue. A person who fails to read his or
her own loan and insurance contracts may not be characterized as
having been duly diligent. Russell v. Performance Toyota, Inc.,

                                  15
MISS. CODE ANN. § 15-1-49; Nicols v. Tri-State Brick & Tile Co.,

, 333 (Miss. 1992).

     Having determined that even the most recent claims against

the non-diverse appellees are conclusively barred by the residual

statute of limitations, we turn now to the claims against the

diverse defendants.   If, but only if, the showing which

forecloses appellants’ claims against the non-diverse defendants

necessarily and equally compels foreclosure of all their claims

against all the diverse defendants, then Smallwood II applies and

there was no improper joinder,   meaning that the entire case

should be remanded for want of subject matter jurisdiction.

     However, Smallwood II does not apply here because the

limitations showing made as to the resident defendants does not

equally and necessarily compel dismissal of all claims against

all diverse defendants.   Appellants underscored at oral argument

that their claims against the diverse corporate defendants were

, 726 (Miss. 2002) (“In Mississippi, a person is
charged with knowing the contents of any document that he
executes.”). See also Washington Mut. Finance Group v. Bailey,

, 264-266 (5th Cir. 2004) (same); Ross v.
Citifinancial, 

(5th Cir. 2003) (same). Accordingly,
the exception to the statute of limitations found in section 15-
1-67 does not apply.
     Appellants also contend that the statute of limitations
ought to be equitably tolled because of a purported fiduciary
relationship between them and the appellees. This too fails,
however, for similar reasons because Mississippi law will not
equitably toll a statute of limitations unless the untimely
plaintiff establishes that he exercised due diligence. Russell
v. Williford, — So. 2d —, 2004 Miss. App. LEXIS 1111, *7-*8
(Miss. 2004). See also 

.

                                 16
not simply premised on vicarious liability for the tortious acts

of the three non-diverse individual appellees working for First

Family.12    However, in properly conceding that at least some of


     12
        For example, the removed state court amended complaint
alleges, inter alia:

     “The Defendants herein are sued individually and as co-
     conspirators, aiders and abettors. The liability of
     the Defendants arises from the fact that, directly and
     through their agents, employees, instrumentalities, and
     alter egos, they engaged in all or part of the unlawful
     acts, plans, schemes, or transactions complained of
     herein. Each of the Defendants is jointly and
     severally liable for the damages caused to Plaintiffs.
     Each of the Defendants (and/or their agents)
     substantially participated or assisted in the
     wrongdoing complained of herein and had knowledge of
     the false and misleading statements and deceptive
     activities and other wrongdoing alleged herein or
     recklessly disregarded such wrongful conduct.

     . . .

     Defendants acted in conspiracy, in concert, and/or
     agency capacity with each other in connection with the
     claims alleged herein. The Associates controlled and
     directed the wrongful conduct of First Family as
     alleged herein. Defendants are jointly and severally
     liable for the wrongful conduct alleged herein.

     . . .

     This action seeks redress for damages sustained by
     Plaintiffs resulting from a habit, pattern and practice
     of predatory lending by these Defendants, to include,
     but not limited to, fraud, deceit, insurance packing
     and equity skimming. In short, the Defendants strip,
     flip and pack their way to profit at the expense of
     trusting and unknowing consumers . . .

     . . .

     In designing, marketing and implementing this
     intentional course of calculated conduct, the

                                  17
their claims against the non-resident defendants are analytically

distinct from and in addition to their respondeat superior claims

against those defendants based on the wrongs allegedly committed

by the resident defendants, appellants have conceded that the

failure of their claims against the resident defendants does not

in and of itself cause those of the claims against the non-

resident defendants which are not based on respondeat superior

liability for the wrongs committed by the resident defendants to

fail as well.

     Appellants have urged that limitations was tolled by the

pendency of a class action filed in 1997 in the United States

District Court for the District of Arizona in which the named

defendants included Associates First Capital Corporation and

Associates Corporation of North America, which are two of the




     Defendants targeted counties in Mississippi which are
     generally all too often populated by lower income
     people and of those with limited educations because of
     withheld opportunities.

     . . .



     The Defendants created and trained its employees to use
     budget proposals and similar solicitation tools, to
     compare the customer’s current debts with one or more
     of the Defendants’ loan proposals and to demonstrate
     the ‘benefits’ of consolidating the consumer’s debts
     with the Defendants’ loan . . . .”

                               18
diverse defendants herein.13   However, none of the resident

defendants in the present suit were defendants in the Arizona

suit (and appellants have never alleged that any of them were),

so it is facially obvious that the pendency of the Arizona suit

could not toll limitations as to any of the resident

defendants.14   The tolling issue, however, cannot be resolved on

that basis as to the diverse defendants because at least two of

them were named defendants in the Arizona suit, and the other

diverse defendants are alleged to have some form of successor or

derivative or alter ego liability respecting the two who were

defendants in the Arizona suit.15     Accordingly, at least for this



     13
        Plaintiffs also allege that a subsequent settlement
released all claims of the class in the Arizona case against all
the corporate defendants (who constitute all the diverse
defendants) in this case. And, plaintiffs further contend in
this case that Citigroup Inc., Citifinancial Corporation and
Citifinancial Inc. have, by merger or other acquisition or “alter
ego,” in some way succeeded to the liability of Associates First
Capital Corporation and Associates Corporation of North America.
There are no similar allegations as to any of the resident
defendants.
     14
       Indeed, at oral argument appellants admitted that their
claim of tolling by virtue of the Arizona suit was inapplicable
to the resident defendants.
     15
       While the Arizona suit tolling claim is ultimately
unavailing as to the diverse defendants for the reasons stated
below in part III hereof, that is not because they were not
defendants in the Arizona action (as at least two non-resident
defendants here were defendants there and the other three non-
resident defendants allegedly have some form of successor or
alter ego liability respecting the two that were defendants in
Arizona), which is the reason that it is unavailing as to the
resident defendants here.

                                 19
reason, the showing that limitations bars the suit against all

the resident defendants does not (as Smallwood II requires for

its “common defense” doctrine to apply) “equally” and

“necessarily” “compel” the conclusion that limitations bars the

entire suit against “all” the non-resident defendants.

     Therefore, though both the non-diverse and diverse appellees

successfully asserted a defense based on the same residual

statute of limitations, this was not a “common defense” in the

particularized sense meant by Smallwood II.

     Given that there is no reasonable possibility of recovery

against the non-diverse appellees and given that Smallwood II

does not apply, joinder of the non-diverse appellees was improper

under Travis.   See, e.g., 

.   The district court,

therefore, had, and we too have, subject matter jurisdiction over

this case under section 1332.

                                III.

     Having determined that subject matter jurisdiction exists,

we turn finally to the district court’s decision to grant summary

judgment to appellees.   We review a grant of summary judgment de

novo under the same standard applied by the district court.

Mowbray v. Cameron County, Tex., 

, 278 (5th Cir.

2001).

     For the purposes of their argument against summary judgment,

appellants implicitly concede that their claims are untimely


                                 20
under Mississippi’s residual statute of limitations.   They argue,

however, that the clock was tolled by (1) the appellees’

fraudulent concealment of the facts giving rise to this suit,

and, (2) that the commencement of a class action lawsuit in

Arizona in 1997 tolled limitations as to the non-resident

defendants.

     For the reasons discussed 

§ II.C n. 11,

appellants’ contention that the limitations clock was tolled by

the fraudulent concealment of the appellees is without merit.

     Their contention that the statute of limitations was tolled

as to the diverse defendants by the Arizona class action is also

without merit.   There is no showing that the putative class

action in Arizona ever embraced claims under Mississippi

statutory or common law or that appellants were ever members of

the putative class in that suit.16

     Moreover, Mississippi does not have class actions and we are

cited to no Mississippi court decision applying class action

tolling to a Mississippi law cause of action allegedly barred by

a Mississippi statute of limitations.


     16
       The class ultimately certified in the Arizona case
consisted of “residents of the State of Arizona” sold credit life
insurance “in connection with any real estate loan made by
Defendants” when the insurance “will not pay off the loan in the
event of their death during the term of coverage.” Seimer Assoc.
First Capital Corp., 

, *18 (D. Ariz.
March 30, 2001). Appellants are not Arizona residents and none
of the loans to appellants here complained of are real estate
loans.

                                21
     The cases cited by appellants, such as American Pipe and

Constr. Co. v. Utah, 

(1974), and Crown, Cork & Seal

Co., Inc. v. Parker, 

, 2397-98 (1983), all involve

a federal class action for violation of a federal statute

tolling, until class certification is denied or limited so as to

exclude the party claiming tolling, the running of the statute of

limitations, on an action, within the scope of the putative class

action, for violation of the same federal statute by a member of

the putative class against a defendant in the class action.

     The only case appellants have cited involving Mississippi

law is Piney Woods Country Life School v. Shell Oil Co., 170 F.

Supp. 2d 675 (S.D. Miss. 1999).    That was a class action by

royalty owners brought in United States District Court for the

Southern District of Mississippi complaining of how the defendant

Shell Oil Company accounted to royalty owners for gas produced in

Mississippi and run through Shell’s Thomasville, Mississippi,

plant.   Royalty owners within the scope of that putative class

but who were excluded by the 1978 class certification order which

limited the class to those whose claims by then exceeded $10,000,

moved after 1984 to be added back to the class.    The district

court denied the motion on the basis that the movants’ claims

were barred by limitations, and that class action tolling did not

save the movants’ claims because, though they and their claims

were within the putative class action as filed, any tolling did


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not extend beyond 1978 when they were excluded from the class by

the 1978 class certification order, and that the Mississippi

limitations statute had run since then and before their motion.

While the opinion does discuss American Pipe and Crown, Cork &

Seal, it does not cite any Mississippi court opinions.     Piney

Woods – even if it purported to apply Mississippi law – is

clearly distinguishable.   The parties claiming tolling were

indisputably members of the putative class seeking to recover on

the identical cause of action by intervening in the allegedly

tolling class action.   Here an Arizona class action is the basis

for the claimed tolling, and it is not shown that the Mississippi

law claims asserted here were embraced within that Arizona case

or that appellants were members of the putative class there.       No

opinion of a Mississippi court, or purporting to apply

Mississippi law, is cited in support of appellants’ tolling

claims.

     We conclude that appellants have adduced no summary judgment

evidence which would support a finding that the Mississippi

statute of limitations as to their Mississippi law claims was

tolled by the pendency of the Arizona class action suit.

                            Conclusion

     For the foregoing reasons, the judgment of the district

court is

                             AFFIRMED.


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