           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 16, 2009
                                     No. 08-60996
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




BBG PROPERTIES, INC.,

                                                   Plaintiff-Appellant,

versus

BONNARD EATON and STATE FARM INSURANCE COMPANIES,

                                                   Defendants-Appellees.




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                                 No. 1:06-CV-320




Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Alleging wrongful refusal to pay on a fire insurance policy, BBG Proper-




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                    No. 08-60996

ties, Inc. (“BBG”), sued State Farm Fire and Casualty Company (“State Farm”)1
and its agent, Bonnard Eaton, in state court for, inter alia, negligent procure-
ment of an insurance policy, intentional malfeasance, gross negligence, and
fraudulent misrepresentation. Asserting fraudulent joinder of Eaton to defeat
diversity of citizenship, State Farm removed to federal district court, which de-
nied BBG’s motion to remand and dismissed Eaton as a defendant.
      The district court then granted State Farm’s motion to dismiss. The court
observed that there was no policy of insurance in effect at the time of the fire;
that BBG was on notice that there was no policy in effect; and that Eaton was
unequivocal in refusing to re-insure the property until certain improvements
were made to it. The court also stated that BBG had not stated its fraud claim
with sufficient particularity under Federal Rule of Civil Procedure 9(b).
      The district court correctly opined that “the plaintiff’s claims are, there-
fore, in direct conflict with the uncontested facts.” Most importantly, as has
been pointed out again and again, there was no policy in effect on the date of the
fire, after plaintiff had been fully advised of that fact and had not effected renew-
al of the policy. (There is also evidence that a representative of BBG unsuccess-
fully tried to obtain coverage elsewhere after begin told that the property was
not in a condition to be re-insured without improvements.)
      There is no basis for liability on State Farm or Eaton. Federal diversity
jurisdiction is conferred by the fact of Eaton’s fraudulent joinder, and the district
court did not err in dismissing this action in its entirely. The judgment of dis-
missal is AFFIRMED.




      1
        The complaint named “State Farm Insurance Companies,” which does not exist. the
real party is State Farm Fire and Casualty Company.

                                          2
