Full House Resorts, Inc. et al v. Boggs & Poole Contracting Group, Inc. et al

Filing 60

MEMORANDUM OPINION AND ORDER denying 7 Motion for Summary Judgment; denying 17 Motion to Strike - both without prejudice. Signed by District Judge Keith Starrett on 3/27/2015 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
FULL HOUSE RESORTS, INC. and SILVER
SLIPPER CASINO VENTURE, LLC
V.

PLAINTIFFS
CIVIL ACTION NO. 1:14cv223-KS-MTP

BOGGS & POOLE CONTRACTING GROUP,
INC. and RONALD LUSTIG

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion for Summary Judgment [7] of the
Defendant Boggs & Poole Contracting Group, Inc. (“Boggs”) and the Motion to Strike
[17] of the Plaintiffs Full House Resorts, Inc. and Silver Slipper Casino Venture, LLC.
Having considered the submissions of the parties, the record, and the applicable law,
the Court finds that both motions should be denied.
BACKGROUND
This action centers on certain alleged defects in the construction of the parking
garage at the Silver Slipper Casino in Bay St. Louis, Mississippi. Full House Resorts,
Inc. (“Full House”) and Silver Slipper Casino Venture, LLC (“Silver Slipper”) own and
operate the Silver Slipper Casino (the “Casino”). In November of 2004, Silver Slipper
contracted with Defendant Ronald Lustig for Lustig’s provision of certain architectural
services pertaining to the design and construction of the Casino and the attendant
parking garage (the “Garage”). (See Lustig Contract [14-1].) In May of 2006, Silver
Slipper contracted with Boggs for the construction of the Casino and Garage. (See
Boggs Contract [7-1].) The construction of the Garage was complete as of February 7,
2007. Full House became an owner of the Casino/Garage in September of 2012, when

it purchased 100% of the equity interests or securities of Silver Slipper.
Disputes between Silver Slipper and Boggs arose during the construction
process regarding payments, expenses associated with delays, and the quality of the
work performed to build the Garage. On June 14, 2007, Silver Slipper filed suit against
Boggs and F-S Prestress, LLC (“F-S”), a subcontractor suppling pre-cast sections of
concrete, in the Circuit Court of Hancock County, Mississippi (the “First Action”). (See
First Compl. [7-4].) Silver Slipper alleged that it incurred numerous expenses and lost
patron revenue due to delays in the construction process. Silver Slipper further alleged
that “the ‘finished’ garage is poorly constructed and meets neither the specifications nor
expectations of Silver Slipper.” (First Compl. [7-4] at ¶ 13.) Silver Slipper cited such
problems with the Garage as “visual imperfections,” improper and incomplete caulking
and sealing, unpainted and exposed structural elements, and uneven joints. (First
Compl. [7-4] at ¶ 13.) The First Complaint [7-4] asserted four counts in support of
liability: (i) breach of fiduciary duty against Boggs due to its failure to protect Silver
Slipper’s rights and interests regarding the subcontract performed by F-S; (ii) breach of
contract against F-S based on its delay in performing under the subcontract, defects in
the pre-cast concrete sections, and construction defects in the Garage; (iii) negligence
against Boggs based on its failure to supervise F-S and ensure the work was completed
within the specified schedule; and (iv) civil conspiracy against Boggs and F-S based on
their respective breaches and Boggs’ efforts to collect funds from Silver Slipper
purportedly owed to F-S. Silver Slipper’s claimed damages included the costs to repair
the defective elements of the Garage and the diminished value of the Garage due to
poor construction.
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Silver Slipper, Boggs, and F-S participated in an unsuccessful mediation shortly
after the filing of the First Action. These parties then submitted their dispute to
arbitration. The Court’s review of the arbitration materials submitted by Boggs reveals
that the primary issues before the arbitration panel (the “Panel” or “arbitrators”) were
Boggs’ request for payments from Silver Slipper for work performed by subcontractors
and Silver Slipper’s claim that any payments should be offset by the expenses it
incurred as a result of delays in construction. Silver Slipper also asserted “a warranty
claim against Boggs for the poor construction of the garage.” (Silver Slipper’s
Arbitration Statement [7-6 at ECF p. 5].) A multi-day arbitration hearing was held in late
January of 2008. The Panel issued its Findings of Fact, Conclusions of Law and
Awards (“Panel Findings”) [7-9] on March 21, 2008. The Panel found as follows with
respect to Silver Slipper’s warranty claim:
Silver Slipper claims that Boggs breached its warranty to construct the
parking garage in a good and workmanlike manner in accordance with the
plans and specifications, free from defects of workmanship and material. Mr.
Jack Granade and Mr. Randy Davis were called as witnesses to the defective
condition of the facility. Mr. Garande [sic] testified that he inspected the
premises for approximately two and one half hours, that he did not make any
calculation or perform any test and that his report was based solely on his
observations. Mr. Davis’ function was principally to corroborate Mr.
Granade’s report and provide a cost estimate for the repairs found to be
necessary. With the exception of Mr. Davis’s opinion that all of the corbels
under the double T’s should be replaced at a cost of $396,000.00 (660 @
$600), which the Panel finds is not credible, the substance of both witnesses’
testimony focused on matters which are basically cosmetic in nature (i.e.
painting the exterior walls, interior patching and cleanup, sidewalk repair,
etc.) which do not affect the structural integrity of the facility.
The Panel finds that Boggs warranted the delivery of a structurally
sound facility as well as one free from cosmetic deficiencies not caused by
ordinary wear resulting from use for the intended purpose. Although the
evidence does not even remotely indicate that the garage is structurally
unsound in any way, it does clearly establish that there are nonstructural
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deficiencies which constitute and are a breach of warranty requiring remedial
measures for which Boggs should be held responsible. These include the
stained and prematurely worn appearance of the three exterior walls not
covered by EFS; cleaning, painting and patching the unfinished and unsightly
aspects of the interior; and repairing the deteriorating sidewalks. Therefore,
Silver Slipper should be and is awarded the sum of $40,000.00 for the
exterior walls, $25,000.00 for the interior, and $20,000.00 for sidewalk repair,
for a total of $85,000.00.
(Panel Findings [7-9] at pp. 13-14.) The Panel also found that Boggs should be
awarded $880,548.57 from Silver Slipper for certain materials and services. As a result,
Boggs was “awarded $880,548.57 from Silver Slipper less the sum of $85,000.00
awarded to Silver Slipper against Boggs . . . .” (Panel Findings [7-9] at p. 14.) On May
6, 2008, the Panel issued its Final Awards [7-10] awarding Boggs “$795,548.57 from
Silver Slipper, together with interest at the rate of 8% per annum from March 21, 2008.”
(Final Awards [7-10] at p. 2.)
On May 29, 2008, Silver Slipper served its Motion to Modify the Arbitrators’
Award [7-13] in the First Action, alleging the existence of a miscalculation by the
arbitrators. Boggs filed a competing motion to confirm the award. On June 27, 2008,
the state court denied Silver Slipper’s request for modification, granted Boggs’ motion
for confirmation, and entered final judgment in favor of Boggs. (See State Court Order
[7-15].) In July of 2008, Boggs and Silver Slipper executed a Mutual Release [7-11].
The Mutual Release states in pertinent part:
Boggs . . . and Silver Slipper . . . hereby release and discharge the other
party and the other party’s respective assigns of and from any and all claims,
demands, liabilities, debts, obligations, actions, and causes of action of every
kind, nature, and description arising out of the contract of construction for the
Silver Slipper Casino and attached parking garage located in Hancock
County, Mississippi, with the sole exception of new warranty claims not
adjudicated in or determined by the arbitrators in the aforementioned
litigation and arbitration.
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(Mutual Release [7-11].)
On April 9, 2014, Full House and Silver Slipper (collectively referred to as
“Plaintiffs”) initiated this action against Boggs and Lustig in the Circuit Court of Hancock
County, Mississippi. (See Compl. [1-2].) The Complaint presents the following
averments and allegations in support of liability. In October of 2013, Plaintiffs retained
Reigstad and Associates, Inc. (“Reigstad”), an engineering firm, after noticing
deficiencies in the Garage, such as water leakage and panel movement. Reigstad
inspected the premises and prepared a corrective plan to alleviate the movement and
deterioration. During the implementation of the plan, Reigstad noticed that lateral
reinforced steel was missing in the pour-strip locations at each level of the Garage. The
“reinforced steel was necessary for the Garage to have proper structural support and
meet applicable building codes.” (Compl. [1-2] at ¶ 13.) Boggs and Lustig intentionally
concealed the absence of the steel by pouring concrete over the defective areas. The
Garage has suffered, and will continue to suffer, acute damage and accelerated
deterioration due to the missing reinforced steel. Plaintiffs were forced to expend
significant resources in order to remedy the defective condition and bring the Garage up
to code. Plaintiffs “seek to recover the cost of retrofitting the Garage with the missing
lateral reinforced steel and fixing the damage to the Garage’s structure as a result of
Defendants’ failure to design, install, properly supervise and/or properly monitor the
construction of the lateral reinforcement during construction.” (Compl. [1-2] at ¶ 20.)
The Complaint asserts ten counts based on these allegations: (i) breach of contract
against Boggs; (ii) intentional misrepresentation against Boggs; (iii) negligence and
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gross negligence against Boggs; (iv) breach of express warranty against Boggs; (v)
breach of implied warranty against Boggs; (vi) breach of contract against Lustig; (vii)
negligence and gross negligence against Lustig; (viii) intentional or negligent
misrepresentation against Lustig; (ix) indemnity as to both Defendants; and (x) equity as
to both Defendants.
On May 23, 2014, Boggs removed the proceeding to this Court on the basis of
diversity of citizenship subject matter jurisdiction under Title 28 U.S.C. § 1332. (See
Notice of Removal [1].) Shortly thereafter, Boggs filed its Motion for Summary
Judgment [7], urging dismissal based on the doctrines of res judicata and collateral
estoppel, and arguing that the Plaintiffs’ claims are time-barred. Lustig has joined in
Boggs’ summary judgment motion. (See Joinder [14].) Plaintiffs’ Motion to Strike [17] is
aimed at Exhibit “E” to Boggs’ summary judgment motion. This Exhibit is a position
paper prepared by Silver Slipper’s former legal counsel and submitted to the mediator in
connection with the aforementioned unsuccessful mediation between Boggs, Silver
Slipper, and F-S in August of 2007. (See Position Paper [7-5].) Copies of the Position
Paper were also furnished to opposing counsel at that time.
DISCUSSION
I.

Plaintiffs’ Motion to Strike [17]
Boggs relies on the Position Paper [7-5] in support of its contention that there is

an identity of facts and circumstances as between the First Action and this lawsuit for
purposes of res judicata. Boggs also cites to this document in arguing that Silver
Slipper failed to exercise due diligence in discovering the construction defects alleged in
this case. Plaintiffs argue that the Position Paper should be stricken and disregarded by
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the Court pursuant to Federal Rules of Civil Procedure 12(f)1 and 56(c)(2).2 Boggs
opposes Plaintiffs’ request and the parties present numerous arguments regarding the
admissibility vel non of the Position Paper under the Mississippi Court Annexed
Mediation Rules for Civil Litigation, this Court’s Local Uniform Civil Rules, Federal Rule
of Evidence 408 (compromise offers and negotiations), and Federal Rule of Evidence
801 (hearsay).
First, Federal Rule of Civil Procedure 12(f) fails to authorize the Plaintiffs’
requested relief. Neither the Position Paper [7-5] nor the Motion for Summary
Judgment [7] to which it is attached is a “pleading” falling under the scope of this Rule.3
Second, as discussed below, the Court does not rely upon the Position Paper for any
ruling adverse to the Plaintiffs in relation to Boggs’ summary judgment motion.
Therefore, it is unnecessary to delve into the various evidentiary arguments raised by
the parties, and the Plaintiffs’ objections are essentially moot. The Motion to Strike [17]
will be denied without prejudice to the Plaintiffs’ ability to object to the admissibility of
the Position Paper in future proceedings before the Court.
II.

Boggs’ Motion for Summary Judgment [7]
A.

Standard of Review

1

“The court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
2

“A party may object that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).
3

See, e.g., Estate of Anderson v. Denny’s Inc., 291 F.R.D. 622, 634-35 (D.N.M.
2013); Mecklenburg Farm, Inc. v. Anheuser-Busch, Inc., 250 F.R.D. 414, 420 n.7 (E.D.
Mo. 2008); 5C Charles Alan Wright et al., Federal Practice and Procedure § 1380 (3d
ed.).
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Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“Where the burden of production at trial ultimately rests on the nonmovant, ‘the movant
must merely demonstrate an absence of evidentiary support in the record for the
nonmovant’s case.’” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir.
2010) (quoting Shields v. Twiss, 389 F.3d 142, 149 (5th Cir. 2004)). However, “if the
movant bears the burden of proof on an issue, either because he is the plaintiff or as a
defendant he is asserting an affirmative defense, he must establish beyond
peradventure all of the essential elements of the claim or defense to warrant judgment
in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). If the
movant meets his burden, the nonmovant must go beyond the pleadings and point out
specific facts showing the existence of a genuine issue for trial. Cannata v. Catholic
Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012) (citation omitted). “An issue is
material if its resolution could affect the outcome of the action.” Sierra Club, Inc. v.
Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels
v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). “An issue is ‘genuine’ if
the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving
party.” Cuadra, 626 F.3d at 812 (citation omitted).
The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inferences to
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be drawn therefrom in the light most favorable to the nonmoving party.” Sierra Club,
Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and legalistic argumentation do not
adequately substitute for specific facts showing a genuine issue for trial.” Oliver v.
Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citing Sec. & Exch. Comm’n v. Recile, 10 F.3d
1093, 1097 (5th Cir. 1993)).
B.

Analysis

Boggs argues that all of the Plaintiffs’ claims are due to be dismissed pursuant to
the doctrines of res judicata and collateral estoppel in light of the judgment entered in
the First Action. Boggs further contends that the claims are untimely under the
applicable statute of limitations and statute of repose. Lustig has joined in Boggs’
request for summary judgment and also presented some limited arguments in support
of dismissal. Plaintiffs principally argue that Boggs’ summary judgment motion is
premature and should be denied pursuant to Federal Rule of Civil Procedure 56(d).
Plaintiffs also address the merits of the Defendants’ bases for dismissal.
1.

Collateral Estoppel and Res Judicata

“In determining the preclusive effect of a prior state court judgment, federal
courts must apply the law of the state from which the judgment emerged.” Amica Mut.
Ins. Co. v. Moak, 55 F.3d 1093, 1096-97 (5th Cir. 1995) (citing J.M. Muniz, Inc. v.
Mercantile Tex. Credit Corp., 833 F.2d 541, 543 (5th Cir. 1987)). The doctrines of
collateral estoppel and res judicata are closely related under Mississippi law. See
McCorkle v. LouMiss Timber Co., 760 So. 2d 845, 854 (¶ 38) (Miss. Ct. App. 2000).
Collateral estoppel, also known as issue preclusion, prevents parties “from relitigating a
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specific issue actually litigated, determined by, and essential to the judgment in a former
action, even though a different cause of action is the subject of the subsequent action.”
Id. (quoting Dunaway v. W.H. Hopper & Assocs., Inc., 422 So. 2d 749, 751 (Miss.
1982)). Res judicata, also referred to as claim preclusion, prevents parties from
relitigating claims that were decided or that could have been raised in the prior action.
Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224, 232 (¶ 22) (Miss. 2005)
(citation omitted). The following four identities must exist for res judicata to apply: “(1)
identity of the subject matter of the action, (2) identity of the cause of action, (3) identity
of the parties to the cause of action, and (4) identity of the quality or character of a
person against whom the claim is made.” Hotboxxx, LLC v. City of Gulfport, Miss., 154
So. 3d 21, 25 (¶ 10) (Miss. 2015) (quoting Dunaway, 422 So. 2d at 751).
Boggs argues that collateral estoppel applies since the issue of the defective
construction of the Garage was determined in the 2008 arbitration leading to a final
judgment in the First Action. Similarly, Lustig posits that the Plaintiffs are collaterally
estopped from relitigating the specific issue of defects or deficiencies in the Garage.
Plaintiffs contend that the doctrine of collateral estoppel has no application because the
warranty claim asserted and decided in the First Action concerned cosmetic defects in
the Garage, whereas the present litigation centers on a structural defect, viz., the
absence of more than three (3) miles of reinforcing steel, i.e., rebar, as well as Boggs’
fraudulent concealment of the missing rebar.
Plaintiffs’ position is supported by the Court’s review of the arbitration and
litigation materials pertaining to the First Action. The Court finds no prior complaint by
Silver Slipper of missing steel in the Garage structure or of Boggs attempting to conceal
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this condition. Further, any determination of those issues is absent from the arbitrators’
findings and awards. Generally, Boggs and Lustig are correct that defects or
deficiencies in the Garage were previously litigated or arbitrated in the First Action.
However, the Court’s concern is whether the “specific” defects previously litigated are
“identical” to those at issue in this suit for purposes of collateral estoppel. Baker &
McKenzie, LLP v. Evans, 123 So. 3d 387, 402 (¶¶ 49-50) (Miss. 2013) (citation omitted);
see also Marcum v. Miss. Valley Gas Co., 672 So. 2d 730, 733 (Miss. 1996) (holding
that collateral estoppel is inapplicable in the absence of “identical legal issues, and the
same facts required to reach a judgment”). Boggs and Lustig have not shown “beyond
peradventure”4 that the specific defect and concealment allegations presented in this
action were “actually litigated, determined by, and essential to the judgment in” the First
Action. McCorkle, 760 So. 2d at 854 (¶ 38). Therefore, their request for summary
judgment on the defense of collateral estoppel is denied. See Fed. R. Civ. P. 8(c)(1)
(listing estoppel and res judicata as affirmative defenses); Miss. R. Civ. P. 8(c) (same).

The preceding finding does not mandate a denial of summary judgment on the
defense of res judicata. This doctrine bars actually litigated claims and “any claims that
should have been litigated in a previous action.” Person v. Denbury Onshore, LLC, 122
So. 3d 810, 814 (¶ 16) (Miss. Ct. App. 2013) (citing Harrison, 891 So. 2d at 232 (¶ 22)).
However, the Court’s res judicata analysis will not involve Lustig. Neither Boggs’ Motion

4

Fontenot, 780 F.2d at 1194.
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for Summary Judgment [7] nor Lustig’s Joinder [14] explains how Lustig may be
resolved of all liability based on the existence of a previous action to which he was a
non-party. Defendants also fail to argue that Lustig was in privity with any of the parties
to the earlier suit for purposes of res judicata. See Rogers v. Rogers, 94 So. 3d 1258,
1266 n.2 (Miss. Ct. App. 2012) (providing that the identity of the parties element may be
satisfied where one litigant is in privity with a party to the earlier action) (citation
omitted). “[T]he absence of any one of the elements [of res judicata] is fatal to the
defense . . . .” Harrison, 891 So. 2d at 232 (¶ 24) (citing Estate of Anderson v. Deposit
Guar. Nat’l Bank, 674 So. 2d 1254, 1256 (Miss. 1996)).
With respect to the identity of the subject matter element, the Mississippi
Supreme Court has provided that the focus should be on “the ‘substance’ of the
lawsuit.” Hill v. Carroll County, 17 So. 3d 1081, 1085 (¶ 12) (Miss. 2009) (citation
omitted); cf. Black v. N. Panola Sch. Dist., 461 F.3d 584, 591 (5th Cir. 2006) (examining
Mississippi law and providing that “identity of subject matter turns on a general
characterization of the suit”). This lawsuit and the First Action clearly involve the same
subject matter: the construction of the Garage at the Silver Slipper Casino in Bay St.
Louis, Mississippi. Therefore, the first element of res judicata is met.
The Court also finds an identity of the cause action as between the First Action
and this litigation. This identity concerns whether two actions “involve the same claim
premised upon the same body of operative fact . . . .” Harrison, 891 So. 2d at 234 (¶
31). The Mississippi Supreme Court applies the transactional approach, as outlined by
the Restatement (Second) of Judgments and referenced in Nevada v. United States,

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463 U.S. 110, 103 S. Ct. 2906, 77 L. Ed. 2d 509 (1983), when this determination
touches upon multiple legal claims. Id. The test is as follows:
[C]auses of actions are the same if they arise from the same “transaction”;
whether they are products of the same “transaction” is to be determined by
“giving weight to such considerations as whether the facts are related in time,
space, origin, or motivation, whether they form a convenient trial unit, and
whether their treatment as a unit conforms to the parties' expectations or
business understanding or usage.
Hill, 17 So. 3d at 1086 (¶ 15) (quoting Nevada, 463 U.S. at 131).
The facts and allegations underlying this action and the First Action are
transactionally related and bear sufficient connection to form a single, convenient trial
unit. It is undisputed that the construction of the Garage was complete as of February
7, 2007. Both the First Action and this action were filed subsequent to that date and
assert liability against Boggs for defects in its construction. With respect to the First
Action, the Complaint alleged that “the ‘finished’ garage is poorly constructed and meets
neither the specifications nor expectations of Silver Slipper[;]”5 Silver Slipper’s PreHearing Statement of Claims, Issues and Authorities (“Arbitration Statement”) asserted
the existence of “a warranty claim against Boggs for the poor construction of the
garage[;]”6 and, the Panel specifically considered Silver Slipper’s claim “that Boggs
breached its warranty to construct the parking garage in a good and workmanlike
manner in accordance with the plans and specifications, free from defects of
workmanship and material.” (Panel Findings [7-9 at ECF p. 14].) Here, the Complaint
asserts various allegations of negligence, breach of contract, and breach of warranty

5

(First Compl. [7-4] ¶ 13.)

6

(Silver Slipper’s Arbitration Statement [7-6 at ECF p. 5].)
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against Boggs based on its purported failure to ensure that the Garage “would be
constructed in a good and workmanlike manner free of defects.” (Compl. [1] at ¶¶ 9, 22,
35-36, 44, 53.) Although the defects at issue in the First Action (visual imperfections,
improper caulking, uneven joints, etc.) and this suit (missing rebar) appear to be
disparate, “evidence necessary to . . . [establish the existence of the defects in one suit]
would authorize a recovery in the other.” McCorkle, 760 So. 2d at 856 (¶ 46) (citation
omitted); see also Harrison, 891 So. 2d at 236 (¶¶ 34-35) (finding but one transaction
where two suits involved the same body of evidence; and, citing the rule stated in the
Restatement (Second) of Judgments § 25 (1982) to the effect that res judicata bars a
second action even if a claimant is prepared to present evidence not offered in the prior
suit). Even the Plaintiffs’ claim of fraudulent concealment based on Boggs pouring
concrete over the missing rebar “relate[s] in time, space, origin, or motivation” to the
First Action since the First Complaint [7-4] alleged deficiencies in the concrete used in
the construction of the Garage. Hill, 17 So. 3d at 1086 (¶ 15). Moreover, all of the
claims against Boggs in the First Action and this litigation arise out of or relate to the
same construction contract. (See Boggs Contract [7-1].)
Strict identity of the parties is unnecessary to satisfy the third element of res
judicata. See Hill, 17 So. 3d at 1086 (¶ 17) (citing Harrison, 891 So. 2d at 236). The
“parties must be at least in privity with one another.” In re Estate of Bell, 976 So. 2d
965, 968 (¶ 7) (Miss. Ct. App. 2008) (citation omitted). Boggs argues that Full House is
barred from asserting any claims because it is in privity with Silver Slipper.7 Plaintiffs
7

Boggs also contends, as a preliminary matter, that Full House has no standing to
assert any claims against it because: (i) the construction contract was between Silver
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point out that Full House purchased Silver Slipper after the conclusion of the First
Action, and contend “the case law reveals that the ‘privity’ of the parties applies only
when it existed during the initial action.” (Pls.’ Mem. in Supp. of Resp. in Opp. to Mot.
for SJ [20] at p. 21.) The Court finds no such limiting proposition in the cases cited by
the Plaintiffs, which held that the identity of the parties element was met based on the
existence of privity. See Little v. V & G. Welding Supply, Inc., 704 So. 2d 1336, 1339
(¶¶ 15-19) (Miss. 1997); Williams v. Vintage Petroleum, Inc., 825 So. 2d 685, 689 (¶ 17)
(Miss. Ct. App. 2002). Furthermore, Mississippi’s appellate courts have ruled that a
party’s status as a successor in interest supports an application of res judicata. See
EMC Mortgage Corp. v. Carmichael, 17 So. 3d 1087, 1091 (¶ 14), 1092 (¶ 20) (Miss.
2009) (holding that the plaintiff’s claims against EMC, who purchased the plaintiff’s deed
of trust from the original defendant, were barred); Jenkins v. Terry Invs., LLC, 947 So.
2d 972, 978 (¶ 22) (Miss. Ct. App. 2006) (“Successors in interest are in privity for
purposes of res judicata.”) (citation omitted). “[P]rivity is . . . a broad concept, which
requires us to look to the surrounding circumstances to determine whether claim

Slipper and Boggs; (ii) Boggs undertook no duty as to Full House; and (iii) Full House
did not become an owner of the Garage until after its completion. This argument is
without merit under Mississippi statutory and case law. See Miss. Code Ann. § 11-7-20
(“In all causes of action for personal injury or property damage or economic loss brought
on account of negligence, strict liability or breach of warranty, including actions brought
under the provisions of the Uniform Commercial Code, privity shall not be a requirement
to maintain said action.”); May v. Ralph L. Dickerson Constr. Corp., 560 So. 2d 729,
730-31 (Miss. 1990) (reversing the trial court’s grant of summary judgment in favor of a
builder in a suit alleging negligent construction and breach of implied warranties brought
by subsequent purchasers of an office building); Keyes v. Guy Bailey Homes, Inc., 439
So. 2d 670, 673 (Miss. 1983) (reversing the trial court’s dismissal of negligence and
breach of implied warranty claims asserted against a home builder by the second
purchaser of a home).
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preclusion is justified.” Carmichael, 17 So. 3d at 1091 (¶ 13) (citation and internal
quotation marks omitted). Full House and Silver Slipper are in privity for purposes of
this Court’s claim preclusion analysis. Full House is essentially standing in the shoes of
Silver Slipper based on its purchase of Silver Slipper’s equities or securities. But for
that purchase, Full House would have no claims against Boggs. The Court thus finds
an identity of the parties with respect to Full House and Silver Slipper’s claims at issue
in this cause.
As to the fourth identity under res judicata, a defendant’s quality or character is
not the same in two actions if he is sued in a limited or representative capacity in one
and personally in another. See In re Estate of Bell, 976 So. 2d at 968 (¶ 8) (citing
McCorkle, 760 So. 2d at 856 (¶ 47)).8 The Court finds no legally cognizable distinction
between the capacity in which Boggs was sued in the First Action and the capacity in
which Plaintiffs assert liability against it in this case. Therefore, all four res judicata
prongs are present in this action.
Perhaps sensing a negative outcome under the preceding four elements,
Plaintiffs assert that the “Court should still deny the res judicata argument because
implementation of the doctrine does not further, but rather undermines, the doctrine’s
announced policy considerations.” (Pls.’ Mem. in Supp. of Resp. in Opp. to Mot. for SJ
[20] at p. 20.) Plaintiffs argue that an important consideration is whether a reasonable
premises owner would have investigated the structural soundness of the Garage prior to

8

The Mississippi Supreme Court has not specifically explained what must be shown
to meet this part of the res judicata analysis. See Carmichael, 17 So. 3d at 1091 (¶ 15);
Hill, 17 So. 3d at 1087 (¶ 18).
-16-

the arbitration. Furthermore, whether Silver Slipper knew or should have known of the
subject defect by exercising reasonable diligence is alleged to be a fact issue
inappropriate for summary judgment. There are authorities favoring Plaintiffs’
argument.9
In considering the prohibition against claim-splitting, which is sometimes
indistinguishable from res judicata under Mississippi law,10 the Mississippi Supreme
Court has taken notice of the following exception: “[A] former recovery does not bar
claims of which the plaintiff was ignorant at the time of the institution of the former suit,
provided the plaintiff's ignorance of the existence of the claim on which the second
action was based did not result from negligence on his part.” McVay v. Castenara, 152
Miss. 106, 119 So. 155, 156 (Miss. 1928) (citation omitted). McVay concerned two
actions brought by the plaintiff relating to the defendant’s failure to convey land pursuant
to a written contract. See id. at 155. The plaintiff sought specific performance in the
first action. See id. After the plaintiff obtained a decree in his favor in the first suit, he

9

Plaintiffs also make the unsupported argument that res judicata is inapplicable
because the Mutual Release [7-11] executed by Boggs and Silver Slipper in July of
2008 excepts “new warranty claims not adjudicated in or determined by the arbitrators .
. . .” Boggs’ summary judgment motion does not raise the defense of release or accord
and satisfaction, which would implicate the terms of the Mutual Release [7-11]. Boggs’
res judicata defense depends upon the effect of the Panel Findings [7-9] and Final
Awards [7-10] and the State Court Order [7-15] confirming the arbitration award. These
instruments neither specify an exception for new warranty claims nor mention the yet-tobe executed Mutual Release. As a result, the existence of the Mutual Release fails to
necessitate a denial of summary judgment.
10

“In order for res judicata and the ban on claim-splitting to take effect, the litigation
must involve the same claim premised upon the same body of operative fact as was
previously adjudicated.” Harrison, 891 So. 2d at 234 (¶ 31). “Prevention of claim
splitting is one goal of res judicata . . . .” Gray v. Univ. of Miss. Sch. of Med., 996 So. 2d
75, 81 (¶ 17) (Miss. Ct. App. 2008).
-17-

initiated the second action to recover damages purportedly caused by the defendant’s
delay in conveying the property. See id. The trial court summarily dismissed the
second action and the plaintiff appealed. See id. The Mississippi Supreme Court
reversed, finding that the plaintiff should be allowed to plead facts supporting the abovequoted exception on remand. See id. at 156.
Although McVay is dated, it has not been overruled. Further, the Mississippi
Supreme Court has referenced a comparable qualification to the barring of claims in
more modern cases. “[T]his principle prohibiting [re-litigation] requires that the plaintiff
bring in the first forum every point which properly belongs to the subject of litigation, and
which the parties, by exercising reasonable diligence, might have brought forward at the
time.” Channel v. Loyacono, 954 So. 2d 415, 424 (¶ 32) (Miss. 2007) (emphasis added)
(quoting Harrison, 891 So. 2d at 234). The Fifth Circuit, whose holdings the Mississippi
Supreme Court has found persuasive at times,11 has similarly provided that res judicata
bars a party from litigating “matters that, with the use of diligence, should have been
litigated in the prior suit. Stevens v. Bank of Am., N.A., 587 Fed. Appx. 130, 132 (5th
Cir. 2014) (citation omitted); cf. Borrego Springs Bank, N.A. v. Town of Bruce, Miss.,
No. 3:11cv85, 2012 WL 39533, at *6-7 (N.D. Miss. Jan. 9, 2012) (deferring ruling on a
request for dismissal based on res judicata pending the receipt of briefing from the
parties regarding whether the plaintiff could have discovered the subject claim through
due diligence). The Hawaii Supreme Court has cited McVay as supporting the following
majority rule: “[A] former recovery will not bar claims of which the plaintiff was ignorant,

11

See Harrison, 891 So. 2d at 236-37 (¶¶ 36-37); Little, 704 So. 2d at 1339 (¶ 15).
-18-

even if those claims existed at the time suit was commenced in the former recovery and
could have been joined, unless plaintiff’s ignorance was due to his own negligence.”
Bolte v. AITS, Inc., 60 Haw. 58, 587 P.2d 810, 813-15 (Haw. 1978) (reversing summary
judgment in part due to the unresolved issue of whether the plaintiff’s lack of knowledge
of a second breach of contract was the result of his negligence or the fault of the
defendant).
In a construction defect case highly analogous to the subject dispute, the South
Dakota Supreme Court referenced the rule from Bolte, which is substantively identical to
the exception provided in McVay, in holding that the trial court erred in granting
summary judgment based on res judicata. See Du-Al Mfg. Co. v. Sioux Falls Constr.
Co., 487 N.W.2d 29 (S.D. 1992).12 Du-Al Manufacturing Company (“Du-Al”) contracted
with Sioux Falls Construction Company (“SFC”) for the construction of a commercial
building. See Du-Al Mfg. Co., 487 N.W.2d at 30. The roof of the building began to leak
shortly after the completion of construction. See id. Du-Al subsequently sued SFC due
to the leaking roof (the “roof lawsuit”). See id. The roof lawsuit was eventually
dismissed for failure to prosecute. See id. Subsequent to this dismissal, Du-Al claimed
that a contractor performing repair work discovered additional construction irregularities
pertaining to the walls of the building, such as improper joint reinforcement and

12

Mississippi’s appellate courts are not averse to considering out-of-state authorities
in resolving issues of claim preclusion. See, e.g., Coleman v. Miss. Farm Bureau Ins.
Co., 708 So. 2d 6, 9-10 (¶¶ 11-14) (Miss. 1998) (citing cases from various states,
including, but not limited to, Indiana, Nebraska, New Jersey, and Arkansas); Rest. of
Hattiesburg, LLC v. Hotel & Rest. Supply, Inc., 84 So. 3d 32, 44-45 (¶ 46) (Miss. Ct.
App. 2012) (citing an Alabama Supreme Court opinion rejecting a res judicata
argument).
-19-

improper rebar installation. See id. at 30-31. Du-Al next initiated a second action
against SFC concerning the wall defects (the “wall defects lawsuit”). See id. at 31. The
trial judge granted summary judgment in favor of SFC, holding that the wall defects
lawsuit was barred in light of the dismissal of the prior roof lawsuit. See id. On appeal,
the South Dakota Supreme Court provided that res judicata bars claims actually litigated
and claims that could have been raised in a prior action. See id. (citation omitted). The
court also took notice of the exception pertaining to claims that may have existed at the
time of a prior action and of which a claimant, due to no fault of his own, lacked
knowledge. See id. at 32 (citations omitted). The court then ruled as follows:
In moving for summary judgment, SFC had the burden of showing that Du-Al
knew, or could have known by the exercise of ordinary care, of the hidden or
latent construction wall defects before the roof lawsuit was dismissed. Du-Al
claims it did not have knowledge of these wall defects until the spring of 1989
when Swift began its repair work. By way of deposition, the engineers
involved asserted that these conditions were hidden and could not be
observed until the repair work was in progress and the fascia was removed
to expose the condition. In resisting the motion for summary judgment, Du-Al
did present specific facts which demonstrate a genuine, material issue for
trial.
As non-moving party, the evidence must be viewed most favorably to Du-Al,
and reasonable doubts should be resolved in its favor. A question of fact
exists whether Du-Al by the exercise of ordinary care knew or should have
known that there were construction wall defects and thus could have sought
such damages in the roof lawsuit.
Before res judicata as a matter of law could apply to bar Du-Al's construction
wall defects lawsuit, the factual question as to when Du-Al knew or could
have known with the exercise of ordinary care of the existence of the wall
defects needs to be determined. This is an issue for the finder of fact to
decide.
Id.

-20-

In their arguments regarding fraudulent concealment and the timeliness of the
Plaintiffs’ claims, the parties extensively dispute whether Silver Slipper exercised
reasonable diligence in discovering the missing rebar. The Court also finds that issue
pertinent to Boggs’ res judicata defense in light of the foregoing authorities. Boggs
contends that the aforementioned Position Paper [7-5], submitted to the mediator in
August of 2007 by Silver Slipper’s former counsel, “leaves no doubt that Silver Slipper
did not exercise due diligence to discover what it now claims is a ‘new defect’ that it
could not have discovered before October 2013.” (Boggs’ Mem. in Supp. of Mot. for SJ
[8] at pp. 24-25.) Boggs principally focuses on the following portion of the Position
Paper, which references an engineering report identifying deficiencies in the Garage
based solely on visual observations:
Clearly, the attached report notes many aspects of the parking garage which
contain defects that do not conform to the requirements of the Contract
Documents. More troubling, the defects observed by the naked eye by
Thompson Engineering show an accelerated deterioration of the garage.
Clearly, a more comprehensive examination, including testing, might indicate
more serious underlying problems.
(Position Paper [7-5 at ECF p. 13].)
Plaintiffs argue that the above-quoted section of the Position Paper concerns
problems relating to the characteristics of the pre-cast concrete, not major structural
defects. Plaintiffs also contend that while further testing may have revealed more
serious issues with respect to the components of the concrete, it is nonsensical to
assume the testing would have shown Boggs failed to place miles of rebar in the
Garage. Plaintiffs go on to make various arguments to the effect that no reasonable
owner would have performed destructive testing on the Garage to determine if it was
-21-

missing a major structural component. Some of Plaintiffs’ arguments seem sensible.
More important, the summary judgment record contains documents other than the
Position Paper [7-5] bearing upon Silver Slipper’s due diligence.
In January of 2008, one of Silver Slipper’s witnesses in the arbitration, Randall L.
Davis, P.E., submitted a report listing the repairs needed to make the Garage safe
following his inspection of the premises. (See Davis Report [7-8].) The Davis Report,
which lists numerous alleged defects in the Garage, says nothing about missing rebar
and even references exposed steel framing in some areas of the facility. Viewed in
Plaintiffs’ favor,13 the Davis Report can be considered evidence of Silver Slipper
exercising due diligence and undertaking “a more comprehensive examination” that
failed to reveal the defect at issue in this lawsuit. (Position Paper [7-5 at ECF p. 13].)
Furthermore, the Panel considered testimony from Davis and the engineer responsible
for preparing the earlier report, and found that “the evidence does not even remotely
indicate that the garage is structurally unsound in any way[;] it does clearly establish
that there are nonstructural deficiencies . . . .” (Panel Findings [7-9] at p. 14.) It is
possible but not necessarily probable that a reasonable premises owner would have
been spurred to conduct testing to detect the absence of reinforcing steel based on this
arbitration determination.
Plaintiffs have also submitted an affidavit from Gordan Reigstad, a professional
engineer, in opposition to summary judgment. (See Reigstad Aff. [19-2].) Reigstad was
13

“[I]n ruling on a motion for summary judgment, [t]he evidence of the nonmovant is
to be believed, and all justifiable inferences are to be drawn in his favor.” Tolan v.
Cotton, 134 S. Ct. 1861, 1863, 188 L. Ed. 2d 895 (2014) (citation and internal quotation
marks omitted).
-22-

retained by Plaintiffs at some point in 2013 to inspect the Garage and formulate a
corrective plan. The Court finds the following segments of Reigstad’s affidavit pertinent
to the subject motion:
On October 17, 2013, as part of the implementation of the initial corrective
plan, Reigstad and Associates began minor demolition work to remove a
portion of delaminated concrete at the top floor of the garage.
During this work, we observed for the first time that the garage was missing
lateral reinforcing steel at a single pour strip location on the roof. As the work
continued it became apparent that lateral reinforcing steel was omitted from
every pour-strip location within the three-story garage during construction.
We verbally notified Full House of these significant findings on the same day
or the next day.
....
In total, it was observed that 19,000 linear feet of No. 5 rebar and 14,400
square feet of 6 x 6 welded wire fabric were missing from construction
although this steel was drawn by the Engineer of Record.
It was also observed that concrete was poured over all the pour-strip areas
where rebar was missing during construction so that the missing rebar areas
would not be visible.
....
Upon our discovery of the missing lateral rebar, it was apparent to me why
the garage was in such a deteriorated condition. The garage was
experiencing uncontrolled movement that was never contemplated by design.
This uncontrolled movement is what led to widespread failures in concrete
connections throughout the garage. Without this lateral steel tying the
garage structure together allowing it to move as one structure, it was tearing
itself apart at all joint locations. 90% of the tee to tee flange connections
were failed along the center portion of the garage and 30-40% of these
flanges were failed on the periphery of the garage.
(Reigstad Aff. [19-2] at ¶¶ 11-12, 14-15, 19-20.) These averments are comparable to
the engineering testimony regarding hidden defects that the South Dakota Supreme

-23-

Court found to support a denial of summary judgment in Du-Al Manufacturing, 487
N.W.2d at 32.
The Court must resolve all reasonable inferences in the Plaintiffs’ favor at the
summary judgment stage. See, e.g., Tolan, 134 S. Ct. at 1863; Sierra Club, Inc., 627
F.3d at 138. Under this standard, the Court declines to hold as a matter of law that
Silver Slipper’s alleged lack of knowledge of the missing rebar at the time of the First
Action was the result of its own negligence or a lack of due diligence. The existence of
a fact issue regarding whether Silver Slipper knew or should have known of this defect
prior to the dismissal of the First Action necessitates a denial of Boggs’ request for
summary judgment based on res judicata. Cf. Borrego Springs Bank, N.A., 2012 WL
39533, at *6-7; Du-Al Mfg., 487 N.W.2d at 32-33; Bolte, 587 P.2d at 815; McVay, 119
So. at 156. This ruling is made without prejudice to Boggs’ ability to again seek
dismissal pursuant to the res judicata doctrine either at trial or via a renewed motion for
summary judgment after the facts have been developed through discovery.
2.

Statute of Limitations/Statute of Repose/Fraudulent
Concealment/Federal Rule of Civil Procedure 56(d)

Approximately seven (7) years passed between the completion of the Garage in
February of 2007 and the filing of this lawsuit in April of 2014. Based on that passage of
time, Boggs argues that Plaintiffs’ claims are barred under the three-year period of
limitation prescribed by section 15-1-49 of the Mississippi Code (applying to actions for
which no other period of limitation is specified) and the six-year period supplied by
section 15-1-41 (the statute of repose applying to actions arising from construction
defects). Lustig contends that Plaintiffs’ claims are untimely under section 15-1-41 and
-24-

Tennessee’s four-year statute of repose (Tenn. Code Ann. § 28-3-202).14 Plaintiffs
argue that any applicable period of limitation was tolled by Boggs and Lustig’s
fraudulent concealment. A plaintiff alleging fraudulent concealment must show two
elements: “(1) an affirmative act or conduct by the defendant done to prevent discovery
of a claim; and (2) due diligence by the plaintiff to discover it.” Townes v. Rusty Ellis
Builder, Inc., 98 So. 3d 1046, 1056 (¶ 28) (Miss. 2012) (citing Windham v. Latco of
Miss., Inc., 972 So. 2d 608, 614 n.8 (Miss. 2008)).15
In the previous section of this opinion, the Court found the existence of a genuine
issue of material fact concerning Silver Slipper’s due diligence in discovering the defects
at issue in this lawsuit. This does not mandate a denial of summary judgment on the
issue of fraudulent concealment, however, because Plaintiffs must also show some
affirmative act by the Defendants designed to prevent discovery of the defects. See
Person, 122 So. 3d at 816 (¶ 24) (citation omitted). Plaintiffs contend that Boggs

14

Lustig partially relies on Tennessee law pursuant to a choice of law provision in his
contract with Silver Slipper. “This Agreement shall be governed by the law of the
principal place of business of the Architect . . . .” (Lustig Contract [14-1] at § 9.1) It is
not necessary to undertake a choice of law analysis because there is no outcome
determinative difference between the application of Mississippi’s six-year statute of
repose and Tennessee’s four-year statute. See Covington v. Aban Offshore Ltd., 650
F.3d 556, 558-59 (5th Cir. 2011) (providing that a choice of law analysis is unnecessary
where the application of two bodies of law leads to the same result) (citation omitted).
As noted above, this action was filed more than seven years after the completion of the
Garage.
15

In Tennessee, a claim of fraudulent concealment encompasses four similar
elements: “(1) an affirmative act by the defendant to conceal the cause of action or the
failure to disclose material facts despite a duty to speak; (2) that the plaintiff ‘could not
have discovered the cause of action despite exercising reasonable care and diligence’;
(3) the defendant must be aware of the wrong; [and] (4) the ‘concealment of material
information from the plaintiff.’” Estate of Morris v. Morris, 329 S.W.3d 779, 784 (Tenn.
Ct. App. 2009) (quoting Shadrick v. Coker, 963 S.W.2d 726, 735 (Tenn.1998)).
-25-

intentionally poured concrete over the areas of the Garage where rebar was missing in
order to conceal the absence of the reinforcing steel. The Court is unconvinced that
pouring concrete, which appears to be a necessary component of the Garage
construction process, can be considered an act of fraudulent concealment. See Reich
v. Jesco, Inc., 526 So. 2d 550, 553 (Miss. 1988) (holding that components of the
defendant’s construction of the plaintiff’s chicken house, which purportedly concealed
certain defects in the structure, did not constitute fraudulent concealment); accord
Henry v. Cherokee Constr. & Supply Co., 301 S.W.3d 263, 267 (Tenn. Ct. App. 2009)
(“The concealment referred to in the statute is not concealment in the original
construction, but rather a concealment by defendant of plaintiff’s cause of action once it
arises.”) (citation omitted). Nonetheless, the Court declines to address the parties’
remaining arguments regarding fraudulent concealment or to issue any ultimate ruling
on this matter in light of Plaintiffs’ request for relief under Federal Rule of Civil
Procedure 56(d).
Rule 56(d) provides as follows:
If a nonmovant shows by affidavit or declaration that, for specified reasons,
it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.

-26-

Fed. R. Civ. P. 56(d).16 Plaintiffs’ counsel has submitted an affidavit expressing a need
for certain discovery. (See Lassiter Aff. [19-1].) Further, Plaintiffs’ summary judgment
briefing contains extensive argument to the effect that Boggs’ motion is premature in
light of the limited to nonexistent discovery record. These efforts are sufficient for the
Court to consider the merits of Plaintiffs’ Rule 56(d) request. See, e.g., Wichita Falls
Office Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir. 1992); Int’l Shortstop,
Inc. v. Rally’s, Inc., 939 F.2d 1257, 1266-67 (5th Cir. 1991).
Rule 56(d) discovery “motions are broadly favored and should be liberally
granted.” Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006) (citing Int’l
Shortstop, Inc., 939 F.2d at 1267). The purpose of the Rule “is to provide non-movants
with a much needed tool to keep open the doors of discovery in order to adequately
combat a summary judgment motion.” Six Flags, Inc. v. Westchester Surplus Lines Ins.
Co., 565 F.3d 948, 963 (5th Cir. 2009) (quoting Wichita Falls Office Assocs., 978 F.2d
at 919). “Although a continuance of a motion for summary judgment for purposes of
discovery should be granted almost as a matter of course, the party seeking additional
discovery must first demonstrate how that discovery will create a genuine issue of
material fact.” Id. (citations and internal quotation marks omitted). Vague assertions
that discovery will reveal unspecified facts are insufficient. See Am. Family Life Assur.
Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir. 2013) (citation omitted). The

16

Rule 56 was amended in 2010, and the advisory committee notes to the
amendments state that “[s]ubdivision (d) carries forward without substantial change the
provisions of former subdivision (f).” Fed. R. Civ. P. 56 advisory committee’s note to
2010 Amendments (emphasis added). Thus, legal authorities applying former Rule
56(f) may be referenced in this opinion.
-27-

party seeking a continuance is required to “set forth a plausible basis for believing that
specified facts, susceptible of collection within a reasonable time frame, probably exist
and indicate how the emergent facts, if adduced, will influence the outcome of the
pending summary judgment motion.” Id. The decision to grant or deny a request for a
continuance to conduct discovery is committed to the sound discretion of the trial court.
See Saavedra v. Murphy Oil U.S.A., Inc., 930 F.2d 1104, 1107 (5th Cir. 1991) (citing
Walters v. City of Ocean Springs, 626 F.2d 1317, 1321 (5th Cir. Unit A 1980)).
Both Boggs and Lustig’s time-bar arguments depend on the absence of evidence
supporting Plaintiffs’ fraudulent concealment claim. “There is no significant probative
evidence of an act designed to prevent and which does prevent discovery of a claim.”
(Boggs’ Mem. in Supp. of Mot. for SJ [8] at p. 24.) “[T]here is no evidence of any
affirmative act or conduct that was done by Lustig to conceal, from the Plaintiffs, their
alleged cause of action . . . .” (Lustig’s Joinder in Mot. for SJ [14] at p. 7.) It is
undisputed that Boggs’ Motion for Summary Judgment [7] and Lustig’s Joinder [14]
were filed prior to the initiation of discovery, the case management conference, and the
time for the parties’ initial disclosures. Although it appears that the parties have now
exchanged some written discovery, no depositions have been taken and the written
discovery was served after the completion of briefing on Boggs’ request for summary
judgment. Also, the United States Magistrate Judge recently denied Boggs’ request to
stay all discovery pending a ruling on its request for summary judgment. (See Order
[52].) Plaintiffs’ plea to develop the evidentiary record through normal discovery
procedures is not unreasonable in light of the Defendants’ lack-of-evidence assertions
and the limited nature of discovery proceedings to date. In several cases, the Court has
-28-

granted requests to conduct discovery prior to the resolution of summary judgments
motions when the motions were filed in the early stages of litigation and/or substantial
time remained to conduct discovery.17
Boggs contends that Silver Slipper already engaged in extensive discovery in
the First Action and that all discoverable documents relating to the construction of the
Garage were produced in that cause. Plaintiffs’ position on discovery is in conflict with
this contention. “Plaintiffs have no access to Boggs’ project correspondence, no access
to Boggs’ and others’ construction documents and no testimony from non-internal
personnel with first-hand knowledge of the construction work.” (Pls.’ Mem. in Supp. of
Resp. in Opp. to Mot. for SJ [20] at p. 11.) The record before the Court does not enable
it to resolve this conflict. The liberal treatment commonly afforded to Rule 56(d) motions
favors erring on the side of caution and permitting discovery to proceed. See Culwell,
468 F.3d at 871.
Plaintiffs have also provided enough specificity regarding their purported need for
discovery for the Court to determine that a summary judgment ruling on the issue of
fraudulent concealment would be premature at this point in time. Rule 56 presupposes
that a litigant opposing “summary judgment has had an adequate time for discovery of
evidence of contradictory facts.” QBE Ins. Corp., 2009 WL 1844496, at *2 (citation

17

See Stark v. Univ. of S. Miss., No. 2:13cv31, 2013 WL 5563767, at *6 (S.D. Miss.
Oct. 8, 2013); Wesley Health Sys., LLC v. Forrest County Bd. of Supervisors, No.
2:12cv59, 2013 WL 2244319, at *2 (S.D. Miss. May 21, 2013); McCollum v. Jacobs
Eng'g Group, Inc., No. 5:11cv177, 2012 WL 3811750, at *4 (S.D. Miss. Sept. 4, 2012);
QBE Ins. Corp. v. Legacy Condos. at Gulfport Home Owners Ass'n, Inc., No.
1:09cv128, 2009 WL 1844496, at *2 (S.D. Miss. June 23, 2009).

-29-

omitted). At no point in the summary judgment briefing does Boggs or Lustig dispute
Plaintiffs’ contention that the Garage is missing more than three (3) miles of reinforcing
steel. Therefore, any of Boggs or Lustig’s payment applications, lien waivers, and shop
drawings showing the existence of the steel may very well create a fact issue regarding
Plaintiffs’ allegations of concealment.18
Ultimately, the Court finds that the not so high bar for obtaining Rule 56(d) relief
has been reached in this case. Boggs’ Motion for Summary Judgment will be denied
without prejudice so that discovery can proceed and Plaintiffs can marshal evidence in
support of their claims and in opposition to Defendants’ bases for dismissal. Plaintiffs
are cautioned, however, that this ruling may constitute a two-edged sword. Just as
discovery could reveal facts supporting Plaintiffs’ fraudulent concealment allegations, it
could also uncover evidence leading the Court to conclude that no reasonable jury
would find that Silver Slipper exercised due diligence in discovering the subject claims.
CONCLUSION
For the foregoing reasons:
IT IS ORDERED AND ADJUDGED that the Motion for Summary Judgment [7] is
denied without prejudice.
IT IS FURTHER ORDERED AND ADJUDGED that the Motion to Strike [17] is
denied without prejudice.
SO ORDERED AND ADJUDGED this the 27th day of March, 2015.
18

The Court expresses no ultimate determination regarding the discoverability,
relevance, or admissibility of these or any other documents or information sought by
Plaintiffs in discovery. Disputes regarding the scope of discovery are to be presented to
the U.S. Magistrate in their ordinary course.
-30-

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

-31-