Community Bank of Pickens County v. Mabus Brothers Construction Co. Inc. et al
Filing
39
ORDER denying Defendant's 25 Motion to Dismiss. Signed by Chief Judge J. Randal Hall on 05/14/2018. (jlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
COMMUNITY BANK OF PICKENS
*
COUNTY,
*
*
Plaintiff,
*
*
V.
*
CV 117-087
*
MABUS BROTHERS CONSTRUCTION
*
CO., INC.; and UNITED STATES
SURETY COMPANY,
*
*
*
Defendants.
*
ORDER
On
or
about
Construction
December
Company
20,
(^^MBCC")
2010,
Defendant
executed
''Note") in favor of Plaintiff.
a
Mabus
Brothers
promissory note
(Doc. 1-1, SI 4.)
(the
As security
for the indebtedness evidenced by the Note, MBCC also executed a
Deed
to
Secure
property
located
Agreement
(Id.
SI
MBCC's
Debt
in
regarding
5.)
MBCC
equipment
and
Georgia
real
also
and
Assignment
and
property
granted
vehicles,
of
a
Rents
Mortgage
located
Plaintiff
and
regarding
in
a
and
South
lien
Plaintiff
real
Security
Carolina.
over
all
perfected
of
its
security interest in the aforementioned personal property with
the filing of UCC-1 financing statements in Georgia and South
Carolina.
(Id. SISI 6-7.)
In 2013, MBCC defaulted on a construction bond issued by
Defendant
United
States
Surety
Company
initiated litigation against MBCC.^
after
its
default
liquidating
therefrom
on
and/or
to
without
its
bond,
assets
2015,
United
Carolina
learned
or
Plaintiff's
USSC
Shortly
MBCC
the
began
proceeds
knowledge
and/or
(Id. SI 8.)
On May
(Id. SlSl 10, 12-16.)
MBCC eventually defaulted on the Note.
2,
and
(Id. SISl 10-11.)
construction
transferring
USSC
authorization.
this
C'USSC")
MBCC
States
filed
a
Chapter
Bankruptcy
Court
(the ''Bankruptcy
of
the
7
bankruptcy
for
Action").
aforementioned
petition
in
the
the
District
of
(Id.
SI
Plaintiff
17.)
South
liquidation/transfers
of
assets/proceeds through discovery obtained during the pendency
of the Bankruptcy Action.
On
June
9,
2017,
(Id.)
Plaintiff
initiated
the
instant
action
alleging various state-law causes of action against Defendants
in
the
Superior
2017RCCV00290.^
the instant
Court
of
Richmond
(S^ Doc. 1-1.)
action
to
this
County,
Georgia,
Case
No.
On July 27, 2017, USSC removed
Court.
(Doc.
1.)
2017, MBCC filed its instant motion to dismiss.
On
December
6,
(Doc. 25.)
^ See United States Surety Co. v. Mabus Brothers Construction Co., Inc., et
al., Case No. l:13-cv-153 (S.D. Ga. dismissed Feb. 16, 2016).
^ Namely: (i) Fraudulent Conveyance (O.C.G.A. § 18-2-74); (ii) Conversion;
(iii) Tortious Interference with Contract; (iv) Unjust Enrichment; (v) Money
Had and Received; (vi) Conspiracy; (vii) Attorney's Fees (O.C.G.A. § 13-611); and (viii) Punitive Damages. (See Doc. 1-1, 581 18-61.)
In
its
motion
to
dismiss,
MBCC
asserts
that
Plaintiff's
claims are time-barred by statutes enacted in Georgia and South
Carolina - O.C.G.A. § 14-2-1406 and S.C. Code Ann. § 33-14-106
(the
"Statutes")
-
that
bar
claims
against
a
dissolved
corporation where the corporation has given proper notice to a
known
claimant
and
the
claimant
claims against the corporation.^
fails
to
timely
pursue
its
(See Doc. 25-1, at 2-4.)
In
support thereof, MBCC asserts that: (i) it is a South Carolina
domestic corporation that was dissolved in 2013; (ii) Plaintiff
received
notice
of
MBCC's
dissolution
via
a
"Notice
to
File
Proof of Claim" served on Plaintiff by the Bankruptcy Court in
connection with the Bankruptcy Action in or around May 27, 2015;
and (iii) Plaintiff "failed to [timely] deliver a claim against
[MBCC]
that
encompassed
(Id.
[a]ction."
those
4
at
2,
claims
(citing
now
Doc.
asserted
this
Yet,
25-2).)
in
even
assuming arguendo that the Notice to File Proof of Claim issued
by the Bankruptcy Court satisfies the Statutes' requirements,
many
of
defense
the
rests
aforementioned
are
not
facts
apparent
upon
from
which
the
face
MBCC's
of
instant
Plaintiff's
complaint and are otherwise not the proper subject of judicial
notice.
Accordingly, dismissal is inappropriate at this stage.
See La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th
Cir.
2004)
("A
statute
of
limitations
bar
is
an
affirmative
^ Both Plaintiff and MBCC have assumed that the Statutes are equivalent to a
statute of limitations.
(See Doc. 25-1, at 2-4; Doc. 28, at 4-8.)
defense,
and
plaintiffs
are
not
required
to
negate
an
affirmative defense in their] complaint. . . . [A] Rule 12(b)(6)
dismissal on statute of limitations grounds is appropriate only
if it is apparent from the face of the complaint that the claim
is
time-barred."
(internal
quotations,
citations,
and
alterations omitted)).
Therefore, upon the foregoing and due consideration, IT IS
HEREBY
ORDERED
that
MBCC's
motion
to
dismiss
(Doc.
25)
is
DENIED.
ORDER ENTERED at Augusta, Georgia, this
day of May,
2018
J. RANBAL HALL,/CHIEF JUDGE
.mjITED^^ATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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