Mobile Attic, Inc. et al v. Cash et al

Filing 229

OPINION AND ORDER as follows: (1) The 207 Objection of plf-intervenor NationalSecurity Group to the magistrate judge's order on the motion to strike is overruled; (2) The 205 Magistrate Judge's Order regarding the plfs' motion to strike is affirmed and adopted, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 6/12/2012. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

MOBILE ATTIC, INC.,
MA MANUFACTURING COMPANY,
INC., and BAGLEY FAMILY
REVOCABLE TRUST,
Plaintiffs,
v.
PETER L. CASH, CASH
BROTHERS LEASING, INC.,
and BRIDGEVILLE
TRAILERS, INC.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

)
NATIONAL SECURITY GROUP,
)
INC.,
)
)
Plaintiff-Intervenor, )
)
v.
)
)
PETER L. CASH, MOBILE
)
ATTIC, INC., and BAGLEY
)
FAMILY REVOCABLE TRUST,
)
)
Defendant-Intervenors. )

CIVIL ACTION NO.
1:09cv24-MHT
(WO)

OPINION AND ORDER
After

an

independent

and

de

novo

review

of

the

record, it is ORDERED as follows:
(1) The objection of plaintiff-intervenor National
Security Group (Doc. No. 207) to the magistrate judge’s
order on the motion to strike is overruled.
(2)

The

magistrate

judge’s

order

regarding

the

plaintiffs’ motion to strike (Doc. No. 205) is affirmed
and adopted.
***
The court adds these comments.

Plaintiff-intervenor

National Security Group (“NSG”) objects to the order of
the

United

States

Magistrate

plaintiffs’ motion to strike.

Judge

granting

the

During oral argument on

pending motions for summary judgment, the magistrate
judge questioned whether NSG’s claims were derivative and
invited additional briefing on that question alone.
its

supplemental

brief,

NSG

attempted

to

flip

In
the

derivative argument in its favor and asserted that Bagley

2

Family Trust’s claims are derivative to Mobile Attic and
appended additional evidentiary material in support of
its position.

(Doc. No. 188).

The plaintiffs objected

and filed a motion to strike.

(Doc. No. 190).

The

magistrate judge determined that NSG’s contention that
Bagley Family Trust’s claims are derivative was untimely
and did not consider NSG’s argument.
NSG objects to the magistrate judge’s order.

NSG

submits that the following statement from its summaryjudgment

brief

sufficiently

raises

and

preserves

a

derivative argument: “‘to the extent that Bagley Trust
seeks damages for the value of certain assets owned by
Mobile Attic, it has no legal standing to do so, having
not

brought

name.’”

a

derivative

claim

in

[Mobile

Attic]'s

NSG Objections (Doc. No. 207) at 29 (quoting NSG

Summary-Judgment Motion (Doc. No. 166) at 17).

NSG’s

reliance on this single statement is misplaced and taken
out of context.

NSG quotes from a section of its brief

where it argues that Bagley Trust’s rights stem from a

3

contract--the stock purchase agreement.

Indeed, NSG

assumes that Bagley Trust has standing to bring its
claims: “In sum, Bagley Trust is the only plaintiff
against NSG.

Bagley Trust has only those rights against

NSG which it acquired through the assignment from James
Bagley,

the

purchaser.

Bagley

Trust’s

only

rights

against NSG are contractual under the terms of the [Stock
Purchase Agreement], which has warranty provisions that
survive the assignee.” NSG Summary-Judgment Motion (Doc.
No. 166) at 18.
The magistrate judge, therefore, concluded that NSG’s
summary-judgment brief did not argue that Bagley Trust's
claims are derivative.

Rather, the magistrate judge

properly concluded that NSG raised a distinctly different
argument:

that

Bagley

Family

Trust

could

not

claim

certain Mobile Attic assets as damages.
The court therefore holds that the conclusions of the
magistrate

judge

are

neither

4

clearly

erroneous

nor

contrary to law.

See 28 U.S.C. § 636(b)(1)(A); Fed. R.

Civ. P. 72(a).
DONE, this the 12th day of June, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE