                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 28, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 06-60475
                          Summary Calendar



ANNIE LOVE, Personal Representative of the Estate of Damond D
Howard, Deceased; CHASITY D YOUNG, Personal Representative of the
Estate of Damond D Howard, Deceased

           Plaintiffs - Appellants

v.

FORD MOTOR COMPANY


           Defendant - Appellee



            Appeal from the United States District Court
         for the Northern District of Mississippi, Aberdeen
                        USDC No. 1:03-CV-638


Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Plaintiffs-appellants Annie Love and Chasity Young, personal

representatives of the Estate of Damond D. Howard, appeal the

district court’s judgment, arguing that the district court erred

by denying (1) their motion to remand and (2) their motion to



     *
        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that this opinion should not be published and is not precedent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.

                                  1
amend the pleading.   For the reasons stated, we AFFIRM the

district court.

              I. FACTUAL AND PROCEDURAL BACKGROUND

     Damon Howard, a Mississippi resident, purchased a Ford

Explorer XLT from Lowe Ford, Inc. (“Lowe”) in June 1999.   Lowe is

a Ford dealership located in Aberdeen, Mississippi.   Howard died

from injuries suffered after being ejected from the vehicle

during a rollover accident involving the Ford Explorer.

     Annie Love and Chasity D. Young (the “plaintiffs”), as

personal representatives of the Estate of Damond D. Howard, filed

a wrongful death action against Lowe and Ford Motor Company

(“Ford”) in the Circuit Court of Monroe County, Mississippi.

     Ford removed the case to the United States District Court

for the Northern District of Mississippi asserting that the court

had diversity jurisdiction because the plaintiffs fraudulently

joined Lowe, the non-diverse defendant, in an attempt to defeat

diversity jurisdiction.   The district court denied the

plaintiffs’ motion to remand the case to state court and

dismissed all claims against Lowe, concluding that there was no

possibility that the plaintiffs could establish a cause of action

against Lowe in state court.

     After a lengthy delay, the plaintiffs filed a motion to

amend the complaint to add Lowe as a defendant and to add a new




                                 2
cause of action against Ford.1                   The district court denied the

motion to amend to add Lowe as a defendant, but permitted an

amendment to add new causes of action against Ford.

       Plaintiffs timely appeal the district court’s denial of both

the motion to remand and the motion to amend.

                                   II. IMPROPER JOINDER

       We review de novo the district court’s decision to deny the

plaintiffs’ motion to remand.                   Guillory v. PPG Indus., Inc., 434

F.3d 303, 308 (5th Cir. 2005).                    Improper joinder2 may be

established in two ways: “‘(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 v. Illinois Cent. R. Co., 385 F.3d 568,

573 (5th Cir. 2004) (en banc) (quoting Travis v. Irby, 326 F.3d

644, 646-47 (5th Cir. 2003).                  Only the second way is before us

today, and the appropriate test is whether there is any

reasonable basis for predicting that the plaintiffs might be able

to recover against Lowe, the in-state defendant.                              See Travis, 362

F.3d at 647.         In making that determination, we must “resolve all



       1
         The plaintiffs filed the motion to amend over nine months after the district court
dismissed Lowe from the lawsuit and more than four months after the deadline in the scheduling
order.
       2
          Although both the parties and the district court discuss this case in terms of fraudulent
joinder, we determined, in Smallwood v. Illinois Central Railroad Co., that
the proper term is “improper joinder” rather than “fraudulent joinder.” 385 F.3d 568, 571 n.1
(5th Cir. 2004) (en banc).

                                                  3
disputed questions of fact and all ambiguities in the controlling

state law in favor of the non-moving party.”                            Hart v. Bayer

Corp., 199 F.3d 239, 246 (5th Cir. 2000).                          The district court may

resolve this issue, as it did here, by conducting a Rule

12(b)(6)-type of analysis, “looking initially at the allegations

of the complaint to determine whether the complaint states a

claim under state law against the in-state defendant.”3

Smallwood, 385 F.3d at 573.

       In this case, the district court held the plaintiffs’

complaint failed to allege an independent claim of negligence

against Lowe.          Indeed, the plaintiffs’ counsel even admitted                               in

its reply to Ford’s opposition to the plaintiffs’ motion for a

new trial that the plaintiffs’ former counsel “had inexplicably

failed to allege independent negligence by the dealership, a

necessary prerequisite to dealership liability under Mississippi

law.       The Court accordingly had no choice but to dismiss the

action against the dealership based on the pleading.”                                 16 R.

3880.       Thus, the plaintiffs have affirmatively waived their

argument that the allegations in the complaint provide a

reasonable basis for predicting that they could recover against

Lowe.       We hold, therefore, that the district court did not err in



       3
          In most cases, there is no improper joinder if a plaintiff can survive a Rule 12(b)(6)
challenge. See Smallwood, 385 F.3d at 573. The court may however, in its discretion, also
“pierce the pleadings and conduct a summary inquiry” to determine whether a plaintiff has
“misstated or omitted discrete facts that would determine the propriety of joinder.” Id.

                                                  4
denying the plaintiffs’ motion to remand.

                     III. AMENDMENT OF COMPLAINT

     We review for abuse of discretion a district court’s denial

of a motion to amend a complaint.            S&W Enters., L.L.C. v.

Southtrust Bank of Alabama, N.A., 315 F.3d 533, 535 (5th Cir.

2003).   Because the district court entered a scheduling order, a

request to amend the pleadings is governed by Federal Rule of

Civil Procedure 16(b), which requires good cause to amend a

pleading after the date entered on the scheduling order.                FED. R.

CIV. P. 16(b);    S&W Enters., L.L.C., 315 F.3d at 535.            To

establish good cause, the party seeking relief must show “that

the deadlines cannot reasonably be met despite the diligence of

the party needing the extension.”            6A CHARLES ALAN WRIGHT & ARTHUR R.

MILLER, FEDERAL PRACTICE   AND   PROCEDURE § 1522.1 (3d ed. 2004).

     The plaintiffs in this case did not exercise diligence.                The

plaintiffs moved to amend the complaint over nine months after

Lowe was dismissed from the case and more than four months past

the deadline in the scheduling order.            The plaintiffs’ motion to

amend did not establish that the plaintiffs acted with diligence

nor did it otherwise explain the lengthy delay in seeking to

amend the complaint as to Lowe.           Thus, the district court did not

abuse its discretion by refusing to grant plaintiffs’ motion to

amend.   See S&W Enters., L.L.C., 315 F.3d at 535 (holding that

the district court did not abuse its discretion by refusing to


                                         5
allow the plaintiff to amend the complaint when the plaintiff

offered no reason for the delay and significant time had passed

after the scheduling order’s deadline for pleading amendments).

                         IV. CONCLUSION

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.




                                6
