Synovus Bank v. Edgewood Townhouses LLC, et al.

Filing 35

MEMORANDUM OPINION AND ORDER denying 21 Third-Party Dfts' Motion to Dismiss. Signed by Honorable Judge W. Harold Albritton, III on 6/4/2014. (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
SYNOVUS BANK d/b/a STERLING BANK, )
)
Plaintiff,
)
v.
)
)
EDGEWOOD TOWNHOUSES, LLC and
)
RICHARD TABOR,
)
)
Defendants.
)
_______________________________________

Case No. 2:14cv138-WHA

RICHARD TABOR,

)
)
Defendant/Third-Party )
Plaintiff,
)
v.
)
)
LEE HAIGLER SIMS; HERBERT M.
)
SCHEUER, JR., and WILLIAMS F. DAVIS, )
)
Defendants/Third-Party )
Defendants.
)
MEMORANDUM OPINION AND ORDER
I. FACTS AND PROCEDURAL HISTORY
This cause is before the court on a Third-Party Defendants Motion to Dismiss (Doc. #21),
filed by the Third-Party Defendants, Lee Haigler Sims; Herbert M. Scheuer, Jr.; and William F.
Davis.
The Plaintiff, Synovus Bank d/b/a Sterling Bank (“Synovus”), filed a Complaint in this
case naming Edgewood Townhouses, LLC and Richard Tabor (“Tabor”) as Defendants.
Synovus seeks to recover on a note and guaranty. The Complaint alleges that Lee H. Sims
(“Sims”); Herbert M. Scheuer, Jr. (“Scheuer”); William F. Davis (“Davis”); and Tabor guaranteed
payment on the note. Specifically, the Complaint alleges that Sims, Scheurer, Davis and Tabor

jointly, severally, and unconditionally guaranteed payment and performance of all obligations of
the Borrower under the note. (Doc. #1 at p.5). Of those guarantors, only Tabor is

Tabor filed a Third-Party Complaint in this case on April 16, 2014. The Third-Party
Complaint refers to the Complaint filed by Synovus. (Doc. #15 at ¶1). The Third-Party
Complaint names Sims, Scheuer, and Davis as Defendants and alleges that in the event that Tabor
is found to be indebted to Synovus, Sims, Scheurer, and Davis are indebted and responsible for
some or all of said indebtedness. It further alleges that the business for which indebtedness was
incurred was operated by Tabor, Sims, Scheurer, and Davis.
For reasons to be discussed, the Motion to Dismiss is due to be DENIED.

II.

MOTION TO DISMISS STANDARD

The court accepts the plaintiff's factual allegations as true, Hishon v. King & Spalding, 467
U.S. 69, 73 (1984), and construes the complaint in the plaintiff's favor, Duke v. Cleland, 5 F.3d
1399, 1402 (11th Cir. 1993).

In analyzing the sufficiency of pleading, the court is guided by a

two-prong approach: one, the court is not bound to accept conclusory statements of the elements of
a cause of action and, two, where there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise to entitlement to relief.

See

Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A[A] plaintiff's obligation to provide the >grounds=
of his >entitle[ment] to relief= requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.@
555 (2007).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

To survive a motion to dismiss, a complaint need not contain Adetailed factual
2

allegations,@ but instead the complaint must contain Aonly enough facts to state a claim to relief
that is plausible on its face.@ Id. at 570.

The factual allegations Amust be enough to raise a right

to relief above the speculative level.@ Id. at 555.

III. DISCUSSION
Sims, Scheuer, and Davis have moved to dismiss the Third-Party Complaint, stating that
the facts alleged do not provide a plausible basis by which the Third-Party Defendants can be held
liable. They state that the Third-Party Complaint contains only one sentence, which is
conclusory, and gives them no basis to formulate a defense to the claim.
Tabor responds that he incorporated the facts of the original Complaint by reference, and
that his Third-Party Complaint states a claim for contribution, pointing to Alabama case law.
(Doc. #34 at p.2 quoting Stallworth v. Preslar, 34 Ala. 505, 509 (1859)).
Although given the opportunity to file a reply, the Third-Party Defendants have not timely
responded to Tabor’s opposition and legal argument.
Considering together the Complaint, which is referenced in the Third-Party Complaint, and
which alleges that Sims, Scheurer, Davis and Tabor jointly, severally, and unconditionally
guaranteed payment and performance of all obligations of the Borrower under the note, and the
allegations of the Third-Party Complaint, and without deciding the merits of the claim, the court
concludes that the Third-Party Complaint adequately pleads facts to state a claim against Sims,
Scheuer, and Davis. Accordingly, the Motion to Dismiss is due to be DENIED.
V. CONCLUSION
For the reasons discussed, the Third-Party Defendants’ Motion to Dismiss (Doc. #21) is
3

ORDERED DENIED.

Done this 4th day of June, 2014.

_/s/ W. Harold Albritton___________________
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

4