Fuhgetaboutit, LLC et al v. Columbus Police Department et al

Filing 95

MEMORANDUM OPINION re 94 Order on Motion to Dismiss. Signed by District Judge Sharion Aycock on 9/28/2011. (sba)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
FUHGETABOUTIT, LLC, et al.
V.

PLAINTIFFS
CIVIL ACTION NO. 1:10-CV-207-SA-JAD

COLUMBUS POLICE DEPARTMENT, et al.

DEFENDANTS

MEMORANDUM OPINION
Presently before the Court is an Amended Motion to Dismiss and/or for Summary Judgment
[74] filed by Defendant Lowndes County, for itself and for the benefit of the Columbus-Lowndes
Metro Narcotics Unit (collectively, the County Defendants). Plaintiffs have responded to the Motion
by requesting a voluntary dismissal without prejudice as to Lowndes County.
BACKGROUND FACTS & PROCEDURAL HISTORY
This cause began as a lawsuit brought by Fuhgetaboutit, LLC; Golden Horn, Inc.; and
Frederic Fields, individually and as a member of Fuhgetaboutit, LLC, and as a stockholder in Golden
Horn, Inc., against the Columbus Police Department, Lowndes County Sheriff’s Department,
Columbus-Lowndes Metro Narcotics Unit, and officers David Criddle and John Duke, in their
individual and official capacities, as well as twelve John Doe Defendants, for civil rights violations
and defamation centering around events occurring in and around the Fuhghetaboutit Bar and Grill.
In a March 10, 2011 Order [36], this Court granted the County Defendants’ Motion for a
More Definite Statement. Plaintiffs were ordered to put forward specific allegations against each
Defendant named in Plaintiffs’ Complaint. Plaintiffs were also granted leave to substitute the
Lowndes County Sheriff’s Department and Columbus Police Department for the proper municipal
entities. In a June 7, 2011 Order [66], this Court granted Defendants’ Motion to Strike Plaintiffs’
First Amended Complaint because it attempted to add additional claims and parties without leave

of Court in violation of Federal Rule of Civil Procedure 15(a)(2). The Court afforded Plaintiffs
another opportunity to comply with its March 10, 2011 Order. On June 21, 2011, Plaintiffs filed
their Second Amended Complaint. The County Defendants now move the Court to dismiss this
cause as to the County Defendants under Rules 12, 41(b), and 56. In response, Plaintiffs admit that
the Second Amended Complaint does not contain any allegations against Lowndes County, but
“[t]hat as a result of this, the Plaintiffs are consenting to a voluntary dismissal of all claims in this
matter against Lowndes County, Mississippi pursuant to Federal Rule of Civil Procedure 41(a)(2).”
The County Defendants oppose a voluntary dismissal at this point.
MOTION TO DISMISS STANDARD
Because the Court finds it unnecessary to consider matters outside the pleadings, the Court
will consider Defendants Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
Under Rule 12(b)(6), the “court accepts ‘all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff.’” Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d
464, 467 (5th Cir. 2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). To
overcome a Rule 12(b)(6) motion, Plaintiffs must plead “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed.
2d 929 (2007).
DISCUSSION
Defendant Columbus-Lowndes County Metro Narcotics Unit
Lowndes County maintains the Columbus-Lowndes Metro Narcotics Unit is not an entity
amenable to suit as a matter of law. Plaintiffs have failed to respond to this argument. The capacity
of an entity to sue or be sued “shall be determined by the law of the state in which the district court
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is held.” Darby v. Pasadena Police Dept., 939 F.2d 311, 313 (5th Cir. 1991) (quoting FED. R. CIV.
P. 17(b)).

Therefore, the Court looks to the law of Mississippi to determine if the Columbus-

Lowndes Metro Narcotics Unit is an entity subject to suit. The Complaint avers that “Defendant,
Columbus Metro Narcotics Unit is a drug enforcement partnership unit comprised of officers of both
the Columbus Police Department and the Lowndes County Sheriff’s Department.” In Mississippi,
police and Sheriff’s departments are not subject to suit because they do not enjoy a separate legal
existence apart from their respective cities or counties. See Brown v. Thompson, 927 So. 2d 733
(Miss. 2006) (dismissing suit against Sheriff’s department because it did not constitute a ‘political
subdivision’ under the Mississippi Tort Claims Act). Like a Sheriff’s department, the Narcotics Unit
is not a separate legal entity apart from the City of Columbus or Lowndes County. Furthermore, the
Complaint contains no allegations against this entity, except to allege that Defendants David Criddle
and John Duke were assigned to it. As such, Plaintiffs’ claims, to the extent any are asserted in the
Second Amended Complaint against this entity, shall be dismissed.
Defendant Lowndes County
Plaintiffs somewhat candidly admit that the Second Amended Complaint does not include
any allegations against Lowndes County. However, Plaintiffs then state, “That as a result of this,
the Plaintiffs are consenting to a voluntary dismissal of all claims in this matter against Lowndes
County, Mississippi, pursuant to Federal Rule of Civil Procedure 41(a)(2).” Plaintiffs offer no other
argument or explanation on this point. Lowndes County responds that it opposes a voluntary
dismissal, and contends that it would be prejudiced at this point by a dismissal without prejudice.
First, the Court notes that Plaintiffs’ request for a voluntary dismissal fails to comply with
Local Rule 7(c), which states, “A response to a motion may not include a counter-motion in the same
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document. Any motion must be an item docketed separately from a response.” L.U.CIV.R. 7(c).
Plaintiffs have been repeatedly admonished throughout this litigation to follow the applicable rules
of court, and the request for a voluntary dismissal is subject to denial on that basis alone.
Nevertheless, the Court will construe Plaintiffs’ statement in their response to the County
Defendants’ pending motion as a motion for a voluntary dismissal under Federal Rule of Civil
Procedure 41(a)(2) and consider it on the merits. Rule 41(a)(2) provides that after an opposing party
has served either an answer or a motion for summary judgment, “an action may be dismissed at the
plaintiff’s request only by court order, on terms that the court considers proper. . . . Unless the order
states otherwise, a dismissal under this paragraph . . . is without prejudice.” The decision to grant
or deny a motion for a voluntary dismissal under Rule 41(a)(2) is within the sound discretion of the
district court. Hartford Accident & Indem. Co. v. Costa Lines Cargo Servs., Inc., 903 F.2d 352, 360
(5th Cir. 1990).
The Fifth Circuit has “explained that, as a general rule, motions for voluntary dismissal
should be freely granted unless the non-moving party will suffer some plain legal prejudice other
than the mere prospect of a second lawsuit.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th
Cir. 2002) (citing Manshack v. Sw. Elec. Power Co., 915 F.2d 172, 174 (5th Cir. 1990)). Typical
examples of such prejudice occur when a party proposes to dismiss the case at a late stage of pretrial
proceedings, or seeks to avoid an imminent adverse ruling, or may on refiling deprive the defendant
of a limitations defense. In re FEMA Trailer Formaldahyde Products Liability Litigation, 628 F.3d
157, 162-63 (5th Cir. 2010) (citing cases).
The Fifth Circuit has identified the following factors to take into account when determining
whether a defendant will suffer prejudice by a Rule 41(a)(2) voluntary dismissal: (1) the defendant’s
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effort and the expense involved in preparing for trial; (2) excessive delay and lack of diligence on
the part of the plaintiff in prosecuting the action; (3) insufficient explanation of the need to take a
dismissal; and (4) the fact that a motion for summary judgment has been filed by the defendant. See
Elbaor, 279 F.3d at 318 n.3 (citing Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998)).
The Court finds the first factor to weigh somewhat against granting a voluntary dismissal
under Rule 41(a)(2). This action has been pending for nearly a year, and numerous motions and
memoranda have been submitted by the County Defendants. For similar reasons, the Court finds the
second factor also weighs against dismissal under Rule 41(a)(2). The discovery period closed on
September 23, 2011, yet no discovery has been conducted. Plaintiffs have been afforded numerous
opportunities to amend their complaint to state a claim against the County Defendants.
As to the third factor, the only explanation provided by Plaintiffs for seeking dismissal under
Rule 41(a)(2) is, “That Plaintiffs filed their Second Amended Complaint and in it did not include any
allegations against Lowndes County, Mississippi.” The Court finds this factor to weigh heavily
against dismissal under Rule 41(a)(2), because, as stated above, this request was made only after the
County Defendants filed a dispositive motion. Finally, a motion for summary judgment has been
filed, making the fourth factor also weigh against a voluntary dismissal.
In a case somewhat analogous to the situation presented here, the Fifth Circuit affirmed the
district court’s denial of Plaintiff’s motion for a voluntary dismissal. Davis v. Huskipower Outdoor
Eqipment Corp., 936 F.2d 193, 198-99 (5th Cir. 1991). The court noted that the plaintiffs moved
to dismiss the case more than a year after it was removed, after months of filing pleadings, attending
conferences, and submitting memoranda. Id. at 99. The court also found significant that the motion
to voluntarily dismiss was not filed until after the magistrate judge had considered the case and
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issued a comprehensive recommendation that was adverse to plaintiffs’ position. Id. Similarly, after
careful consideration of the record as a whole, the Court finds that Lowndes County would be
prejudiced at this point by granting Plaintiffs a Rule 41(a)(2) dismissal. In addition to the factors
discussed above, Plaintiffs are obviously “seek[ing] to avoid an imminent adverse ruling.” In re
FEMA Trailer Formaldahyde Products Liability Litigation, 628 F.3d at 162-63. Therefore, Plaintiffs
request for a voluntary dismissal will be denied.
Turning now to the pending Motion to Dismiss, the Court, having carefully scrutinized the
Second Amended Complaint, agrees with the Plaintiffs’ (and County Defendants’) assessment that
it fails to state a claim against Lowndes County. Allegations against Lowndes County appear only
three times in the Complaint. Paragraph 9 avers that “Defendant, Lowndes County, Mississippi may
be served with process by serving the president of the Board of Supervisors.” Paragraph 10 avers
that the Columbus-Lowndes Metro Narcotics Unit is comprised of officers of the Columbus Police
Department and the Lowndes County Sheriff’s Department. Finally, paragraph 32 avers that
Defendants David Criddle and John Duke are agents of the Columbus-Lowndes County Metro
Narcotics Unit. This falls well short of “enough facts to state a claim to relief that is plausible on
its face,” Twombly, 550 U.S. at 570, 127 S. Ct. 1955, against Lowndes County. Accordingly, the
Court grants the County Defendants’ Motion to Dismiss, and Plaintiffs’ claims against Lowndes
County and the Columbus-Lowndes Metro Narcotics Unit are dismissed with prejudice.
Attorneys’ Fees
In their reply and accompanying brief, the County Defendants request an award of attorneys’
fees under Fed. R. Civ. P. 11 and / or 42 U.S.C. § 1988. Regarding Section 1988, this argument was
not raised in Defendants’ Motion to Dismiss, and this Court will not consider issues raised for the
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first time in a reply brief. See Stuckey v. Miss. Transp. Comm’n, 2009 WL 230032, at *2 (S.D.
Miss. Jan. 29, 2009); L.U.CIV.R. 7. As to sanctions under Rule 11, although the County Defendants’
original Motion to Dismiss references Rule 11 (stating, “Plaintiffs had a duty to investigate facts
before filing suit under Rule 11 of the FRCP”), this request fails to comply with the procedural
requirements of Rule 11(c).1 Therefore, the County Defendants’ request for attorneys fees will be
denied.
SO ORDERED on this, 28th day of September, 2011.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE

1

“A motion for sanctions must be made separately from any other motion and must
describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under
Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim,
defense, contention, or denial is withdrawn or appropriately corrected within 21 days after
service or within another time the court sets. If warranted, the court may award to the prevailing
party the reasonable expenses, including attorney' fees, incurred for the motion.” FED. R. CIV. P.
s
11(c).
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