Mobile Attic, Inc. et al v. Cash et al
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
PETER L. CASH, CASH
BROTHERS LEASING, INC.,
NATIONAL SECURITY GROUP,
PETER L. CASH, MOBILE
ATTIC, INC., and BAGLEY
FAMILY REVOCABLE TRUST,
CIVIL ACTION NO.
OPINION AND ORDER
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.
plaintiffs’ motion to strike (Doc. No. 205) is affirmed
The court adds these comments.
National Security Group (“NSG”) objects to the order of
plaintiffs’ motion to strike.
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.
derivative argument in its favor and asserted that Bagley
Family Trust’s claims are derivative to Mobile Attic and
appended additional evidentiary material in support of
(Doc. No. 188).
The plaintiffs objected
and filed a motion to strike.
(Doc. No. 190).
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.
submits that the following statement from its summaryjudgment
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
NSG Objections (Doc. No. 207) at 29 (quoting NSG
Summary-Judgment Motion (Doc. No. 166) at 17).
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
contract--the stock purchase agreement.
assumes that Bagley Trust has standing to bring its
claims: “In sum, Bagley Trust is the only plaintiff
Bagley Trust has only those rights against
NSG which it acquired through the assignment from James
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
certain Mobile Attic assets as damages.
The court therefore holds that the conclusions of the
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
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