Skinner et al v. Bordages et al
Filing
105
MEMORANDUM OPINION AND ORDER Denying 71 Motion for Default Judgment as to Defendant John Bordages Jr., Denying 73 Motion for Default Judgment as to Defendant Luis Hawkins, and Ordering Plaintiffs to Show Cause as to Why Their Claims Against Defendants Luis Hawkins and John Bordages Jr. Should Not Be Dismissed. Signed by District Judge Halil S. Ozerden on February 27, 2015. (NM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JESSE M. SKINNER and MANUEL
E. SKINNER JR.
v.
JOHN BORDAGES JR., CRAIG
SHOWS, JOHN HAWKINS, MARY
FORETICH, TERRY DAVIS, KEITH
DAVIS, CARLO ROBOTTI, BRIAN
MACCARTHY, TOM DEICHMANN,
BURNELL DEDEAUX, LUIS
HAWKINS, CHARLES BRANDON
MOORE, KARL WINTER, GPCH-GP,
INC., JOHN B. METCALF, ROBERT
HILLIER, TOM WHEELER, ROY
HUGH FLEMING, and JOHN/JANE
DOES 1-4
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PLAINTIFFS
CIVIL NO.: 1:13cv314-HSO-RHW
DEFENDANTS
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
DEFAULT JUDGMENT AS TO DEFENDANT JOHN BORDAGES JR.,
DENYING MOTION FOR DEFAULT JUDGMENT AS TO DEFENDANT
LUIS HAWKINS, AND ORDERING PLAINTIFFS TO SHOW CAUSE AS TO
WHY THEIR CLAIMS AGAINST DEFENDANTS LUIS HAWKINS AND
JOHN BORDAGES JR. SHOULD NOT BE DISMISSED
BEFORE THE COURT are the Motion for Default Judgment as to Defendant
John Bordages Jr. [71] and the Motion for Default Judgment as to Defendant Luis
Hawkins [73] filed by Plaintiffs Jessie M. Skinner and Manuel E. Skinner. Having
considered Plaintiffs’ submissions, the record, and relevant legal authorities, the
Court is of the opinion that Plaintiffs’ Motions [71] [73] should be denied. The
Court will further order that Plaintiffs must show cause as to why their claims
against Defendants John Bordages Jr. and Luis Hawkins should not be dismissed
with prejudice as being barred by the applicable statutes of limitations.
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I. BACKGROUND
On August 1, 2013, Plaintiffs Jesse M. Skinner and Manuel E. Skinner Jr.
(“Plaintiffs”) filed the Complaint seeking to advance a claim of conspiracy and a
claim under the Racketeer Influenced Corrupt Organization Act, 18 U.S.C. §§ 19611968 (“RICO”), stemming from Plaintiff Jesse Skinner’s conviction in June 2003 of
various felonies including assault with a deadly weapon. Plaintiffs alleged the
conspiracy and RICO violations were carried out by several law enforcement officers
involved in the investigation of Plaintiff Jesse Skinner’s underlying conviction,
including Defendants John Bordages Jr. (“Bordages”) and Luis Hawkins
(“Hawkins”). Compl. 7, 13-14 [1]. The record reveals that Summonses were
returned executed as to Hawkins [13] on December 11, 2013, and Bordgages [20] on
January 3, 2014. Because neither Hawkins nor Bordages have responded to the
Complaint or otherwise appeared to date, Plaintiffs now seek default judgment as to
both Hawkins and Bordages. Mot. for Default J. as to John Bordages Jr. [71]; Mot.
for Default J. as to Luis Hawkins [73].
II. DISCUSSION
“A defendant’s default does not in itself warrant the court in entering a
default judgment. There must be a sufficient basis in the pleadings for the
judgment entered.” Nishimatsu Const. Co. v. Houston Nat. Bank, 515 F.2d 1200,
1206 (5th Cir. 1975) (footnote omitted); see also Wooten v. McDonald Transit
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Associates, Inc., 775 F.3d 689, 699 (5th Cir. 2015) (accord).1 “Default judgment is
proper only if the well-pleaded factual allegations in [the p]laintiff’s . . . [c]omplaint
establish a valid cause of action.” Del Sol Med. Ctr. v. Alliance Nat. Ins. Co., No.
EP-12-CV-36-PRM, 2012 WL 1078080, at *3 (W.D. Tex. Mar. 30, 2012) (citing
Nishimatsu, 515 F.2d at 1206); see also 10A Charles Alan Wright, Arthur R. Miller
& Mary Kay Kane, Federal Practice and Procedure § 2685 (3d ed. 1998) (Under
Rule 55 “the party making the request [for default judgment] is not entitled to a
default judgment as of right, even when defendant is technically in default . . . .”)
(footnote omitted).
The record in this case indicates that Plaintiffs are not entitled to default
judgment as to Bordages and Hawkins. On September 9, 2014, the Court entered
its Memorandum Opinion and Order Granting Defendant GPCH-GP, Inc’s Motion
to Dismiss [76].2 In granting GPCH-GP, Inc.’s Motion, the Court found that the
facts alleged in the Complaint revealed that Plaintiffs’ conspiracy claim began to
accrue, at the latest, on June 9, 2003, the date on which Plaintiff Jesse Skinner was
convicted of assault. Mem. Op. and Order 10 [76]. Because the Complaint was not
filed until August 1, 2013, the Court found that the conspiracy claim was time
barred. Id. at 10-11. The Court further reasoned that the Complaint did not
sufficiently plead a RICO claim, and to the extent the Complaint could be construed
to sufficiently plead a RICO claim, any such claim was also time barred. Id. at 11The Wooten record on appeal reveals that, on January 16, 2015, a petition for rehearing en
banc was filed, and that petition remains pending as of the date of this Memorandum Opinion and
Order.
2 Plaintiffs allege that Defendant GPCH-GP, Inc., participated in the same conspiracy and
RICO violations in which Bordages and Hawkins are alleged to have participated. Compl. 19-21 [1].
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16. Because Plaintiffs seek to obtain a default judgment against Bordages and
Hawkins based upon these same claims, which the Court has previously found
lacking, there is not a “sufficient basis in the pleadings” upon which the Court can
properly enter a default judgment. Nishimatsu Constr., 515 F.2d at 1206; see also
Wooten, 775 F.3d at 693 (same). As a result, Plaintiffs are not entitled to default
judgment as to Bordages and Hawkins.
“[A] district court may dismiss a complaint on its own motion for failure to
state a claim.” Shawnee Int’l, N.V. v. Hondo Drilling Co., 742 F.2d 234, 236 (5th
Cir. 1984) (citations omitted); see also Wooten, 775 F.3d at 703 (noting that when
faced with a request for default judgment founded upon a complaint that is “fatally
deficient[,]” district courts, in addition to denying the requested default judgment,
may “dismiss the complaint sua sponte under Rule 12(b)(6) without prejudice”). The
Fifth Circuit has observed that a district court inclined to dismiss a claim sua
sponte under Rule 12(b)(6) typically should “require[] ‘both notice of the court’s
intention and an opportunity to respond.’” Carroll v. Fort James Corp., 470 F.3d
1171, 1177 (5th Cir. 2006) (quoting Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.
1998)).
Although the Court finds that Plaintiffs have been on notice since January 6,
2014,3 of the fact that their conspiracy and RICO claims may be barred by the
applicable statutes of limitations, and Plaintiffs have twice responded to and
Defendant GPCH-GP, Inc., sought dismissal of Plaintiffs’ claims on statute of limitations
grounds on January 6, 2014. GPCH-GP, Inc.’s Mem. Br. in Supp. of Mot. to Dismiss 4-6 [23].
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addressed the statute of limitations issue,4 the Court will afford Plaintiffs an
opportunity to respond with respect to their claims against Bordages and Hawkins.
Accordingly, Plaintiffs must show cause on or before March 13, 2015, why their
claims against Bordages and Hawkins should not be dismissed as being barred by
the applicable statutes of limitations.
III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiffs’
Motion for Default Judgment as to John Bordages Jr. [71] is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that the Clerk’s Entry of
Default as to John Bordages Jr. [47] shall be SET ASIDE.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiffs’ Motion
for Default Judgment as to Luis Hawkins [73] is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that the Clerk’s Entry of
Default as to Luis Hawkins [48] shall be SET ASIDE.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiffs shall
show cause in writing why the claims against Bordages and Hawkins should not be
dismissed on statute of limitations grounds. On or before March 13, 2015, Plaintiffs
shall file a brief addressing the single and narrow issue of whether their claims
against Bordages and Hawkins for conspiracy and RICO violations are barred by
the statute of limitations applicable to those claims, and show cause why the Court
See Pls.’ Objections to Def. GPCH-GP, Inc.’s Mot. to Dismiss 3-10 [31]; Mot. for
Reconsideration of Order [76] Pursuant to Fed. R. Civ. P. 56(e) and Pursuant to Justice 4-5 [81].
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should not dismiss Plaintiffs’ claims for conspiracy and RICO violations against
Bordages and Hawkins as being time barred.
SO ORDERED AND ADJUDGED, this the 27th day of February, 2015.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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