United States of America v. Dawn Properties, Inc. et al

Filing 166

ORDER granting 70 Motion to Dismiss; granting 76 Motion to Dismiss; granting 80 Motion to Dismiss; finding as moot 83 Motion to Stay Proceedings; granting 85 Motion to Dismiss; granting 94 Motion to Dismiss; granting 110 Motion to Dismi ss; denying 126 Motion for Joinder; granting 134 Motion to Dismiss. All claims against Greg Stewart and Nosidam, LLC; City of Ridgeland; Harrison County; Jackson County; Drace Construction Corp.; City of Hattiesburg; and Harry Baker Smith Archite cts, II, LLC are dismissed with prejudice and are terminated from this action. All claims against Gerald James Hopkins and City of Long Beach are dismissed with prejudice and are terminated from this action. The Third-Party Complaint against Gerald James Hopkins and the City of Ridgeland filed by Ridgeland Construction One, LLC is dismissed with prejudice. Signed by Chief District Judge Louis Guirola, Jr. on 11/26/14 (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
UNITED STATES OF AMERICA
v.
DAWN PROPERTIES, INC.;
SOUTHERN CROSS CONSTRUCTION
COMPANY, INC.; RIDGELAND
CONSTRUCTION ONE, LLC;
THE BEACH CLUB, LLC;
THE BEACH CLUB II, LLC;
THE BELMONT OF LAMAR, LLC;
GRAND BISCAYNE APTS., LLC;
SEAINN, LLC

PLAINTIFF
CAUSE NO. 1:14CV224-LG-JCG

DEFENDANTS/
THIRD-PARTY PLAINTIFFS

AND
SUMMER MISS, LLC;
14510 LEMONYE BOULEVARD, LLC;
LEXINGTON MILL MISSISSIPPI OWNER,
LLC; INN BY THE SEA HOME OWNERS
ASSOCIATION, INC.

RULE 19 DEFENDANTS

v.
GREG STEWART; NOSIDAM, LLC, D/B/A
MADISON HOMES; GERALD JAMES
HOPKINS; HARRY BAKER SMITH
ARCHITECTS II, LLC; DRACE CONSTRUCTION
CORP.; CITY OF RIDGELAND,
MISSISSIPPI; CITY OF LONG BEACH
MISSISSIPPI; CITY OF HATTIESBURG,
MISSISSIPPI; JACKSON COUNTY, MISSISSIPPI;
HARRISON COUNTY, MISSISSIPPI;
and JOHN DOES 1-100
THIRD-PARTY DEFENDANTS
ORDER (1) GRANTING MOTIONS TO DISMISS THIRD-PARTY
COMPLAINT FILED BY THIRD-PARTY DEFENDANTS AND DISMISSING
ALL THIRD-PARTY DEFENDANTS; (2) DENYING MOTION FOR JOINDER
FILED BY THIRD-PARTY PLAINTIFFS; AND (3) DENYING AS MOOT
JOINT MOTION TO STAY PROCEEDINGS

BEFORE THE COURT are the following Motions to Dismiss filed by Thirdparty Defendants pursuant to Federal Rule of Civil Procedure 12(b)(6): [70] Motion
to Dismiss filed by Greg Stewart and Nosidam, LLC; [76] Motion to Dismiss filed by
City of Ridgeland, Mississippi; [80] Motion to Dismiss filed by Harrison County,
Mississippi; [85] Motion to Dismiss filed by Jackson County, Mississippi; [94]
Motion to Dismiss filed by Drace Construction Corp.; [110] Motion to Dismiss filed
by City of Hattiesburg, Mississippi; and [134] Motion to Dismiss filed by Harry
Baker Smith Architects, II, LLC. These Third-party Defendants ask the Court to
dismiss the Third-party Complaint filed against them by Defendants/Third-party
Plaintiffs Dawn Properties, Inc.; Southern Cross Construction Company, Inc.; The
Beach Club, LLC; the Beach Club II, LLC; The Belmont of Lamar, LLC; Grand
Biscayne Apts., LLC; and SeaInn, LLC (“Defendants” or “Third-party Plaintiffs”).
Also before the Court is the [126] Motion for Joinder in which the
Defendants/Third-party Plaintiffs, anticipating that the Court may grant the
Motions to Dismiss, seek to join the Third-party Defendants pursuant to Federal
Rule of Civil Procedure 19, or, alternatively, Rule 20.
The Court has considered the submissions of the parties and the applicable
law and finds that the Motions to Dismiss should be granted because (1) there is no
right to indemnity or contribution under the federal laws at issue; (2) any state law
indemnity claim is preempted by federal law; (3) Mississippi law does not allow for
contribution claims against the Third-party Defendants; and, (4) regardless, any
state law claim for contribution is preempted by federal law. The claims against
2

the cities and counties should be dismissed for the additional reason that they owed
no duty to the Third-party Plaintiffs. The Court finds that the claims against the
remaining Third-party Defendants, Gerald James Hopkins and the City of Long
Beach, should be dismissed sua sponte.1 The Court likewise dismisses sua sponte
the claims against Gerald James Hopkins and the City of Ridgeland asserted by
Third-party Plaintiff Ridgeland Construction One, LLC (“Ridgeland Construction”)
in its [154] Third-party Complaint filed on November 21, 2014.2
Furthermore, the Court is of the opinion that joinder pursuant to Rule 19 is
unwarranted because the Court can accord complete relief among the United States
and the current Defendants without the presence of the Third-party Defendants.
The current Defendants cannot use Rule 20 to join additional parties as defendants.
The Court denies as moot the [83] Joint Motion to Stay Proceedings filed by
Third-party Defendants Greg Stewart, Nosidam, LLC, and City of Ridgeland.
BACKGROUND
The United States filed this action against Defendants Dawn Properties, Inc.;
Southern Cross Construction Company, Inc.; Ridgeland Construction One, LLC;
The Beach Club, LLC; the Beach Club II, LLC; The Belmont of Lamar, LLC; Grand

1

The City of Long Beach and Hopkins each filed Motions to Dismiss on
November 21 and 25, respectively, to which the time for the Third-party Plaintiffs
to respond has not yet expired.
2

The City of Ridgeland filed a Motion to Dismiss Ridgeland Construction’s
Third-Party Complaint on November 25, 2014. The time for Ridgeland
Construction to respond to that Motion has not yet expired.
3

Biscayne Apts., LLC; and SeaInn, LLC. The United States alleges that the
Defendants were the owners, developers, and builders of several local residential
apartment complexes and seeks to hold them liable for purported violations of the
Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA).
The Defendants (except for Ridgeland Construction, which filed a Motion to
Dismiss) filed a Third-Party Complaint pursuant to Federal Rule of Civil Procedure
14 against Greg Stewart; Nosidam, LLC; Gerald James Hopkins; Harry Baker
Smith Architects, II, LLC; Drace Construction Corp.; City of Ridgeland; City of
Long Beach; Jackson County; City of Pass Christian (which has since been
voluntarily dismissed); and John Does 1-100. They thereafter amended their Thirdparty Complaint to add Harrison County. These Third-party Plaintiffs claim that if
they are found liable in this action, then the Third-party Defendants “should also be
held liable and/or should otherwise contribute for all or part of the United States’
claims found to have merit . . . .” (1st Am. Compl. 2, ECF No. 48).
After this Court denied Third-party Plaintiff Ridgeland Construction’s
Motion to Dismiss the United States’ Complaint against it, Ridgeland Construction
filed its Answer and Third-party Complaint against Gerald James Hopkins and the
City of Ridgeland on November 21, 2014. The substance of Ridgeland
Construction’s claims against Hopkins and the City of Ridgeland are no different
than the claims against those parties brought by the other Third-party Plaintiffs.
Multiple Third-party Defendants have moved to dismiss the claims against
them for failure to state a claim upon which relief can be granted. They argue that
4

there is no right to indemnity or contribution under the FHA and ADA, and,
further, that any state law indemnity or contribution claim is preempted by federal
law. The cities and counties also argue that they cannot be liable because they did
not have any duty to the Third-party Plaintiffs to ensure compliance with the FHA
and ADA.
The Third-party Plaintiffs argue that even if the Court dismisses their Rule
14 claims against the Third-party Defendants, the Court must still join those
entities in this action under Federal Rule of Civil Procedure 19(a)(1)(A), or,
alternatively, may join those entities under Rule 20(a)(2).
DISCUSSION
Motions to Dismiss
“Under the Rule 12(b)(6) standard of review, th[e] court accepts ‘all wellpleaded facts as true and construes the complaint in the light most favorable to the
plaintiff.’” Jaso v. Coca Cola Co., 435 F. App’x 346, 351 (5th Cir. 2011) (citation
omitted). “A claim may not be dismissed under Rule 12(b)(6) ‘unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.’” Nottingham v. Richardson, 499 F. App’x 368,
372 (5th Cir. 2012) (citation omitted). Applying this standard, the Court finds that
all claims against the Third-party Defendants should be dismissed.
The Third-party Defendants correctly argue that there is no right to
indemnity or contribution under the FHA or the ADA. See United States v. Bryan
Co., No. 3:11-cv-302-CWR-LRA, 2012 WL 2051861, at *5 (S.D. Miss. June 6, 2012).
5

Therefore, any claim by the Third-party Plaintiffs pursuant to those federal
statutes fails to state a claim on which relief can be granted.
The Third-party Plaintiffs argue that they can still assert claims for
contribution under Mississippi state law. They do not argue that they can assert
claims for state law indemnity, and, regardless, any claim for state law indemnity
would be preempted by federal law. See id. at *3-6. Therefore, this Court must
determine whether the Third-party Plaintiffs can assert claims for state law
contribution against the Third-party Defendants.
Greg Stewart and Nosidam, LLC (collectively, “Stewart”), Drace
Construction Corp. (“Drace”), and Harry Baker Smith Architects
(“HBSA”)
The Third-party Plaintiffs allege that Stewart was the construction manager
and/or general contractor for several of the apartment complexes at issue. (1st Am.
Compl. 6, 8, 10 (¶¶ 20-21, 31, 36-37), ECF No. 48). They claim that if those
complexes are “found to be non-compliant with the FHA and/or ADA codes and
regulations and the Defendants are held liable,” then Stewart should also be held
liable and otherwise contribute for all or part of the awarded damages. (Id.). They
make similar claims against Drace and HBSA as construction manager and
architect of some of the apartment complexes. (See id. 6, 9-10 (¶¶ 22, 35, 38)).
The Court agrees with Stewart that these allegations fail to state a claim.
Under Federal Rule of Civil Procedure 14, “a third-party claim must be for some
form of derivative or secondary liability of the third-party defendant to the thirdparty plaintiff.” Neal v. 21st Mortg. Corp., 601 F. Supp. 2d 828, 830 (S.D. Miss.
6

2009). “Because Rule 14 does not create any substantive rights but rather merely
governs the procedure for impleading third parties, the court must look to state law
to determine whether there is a substantive right to the relief sought[,]” which, in
this case, is contribution under Mississippi state law. Id.
“Under Mississippi law, a defendant has no right to implead a third-party
defendant in order to seek contribution from a joint tortfeasor who has not been
sued by the plaintiff.” Id. This is because “the long-standing rule in this state [is]
that contribution among joint tortfeasors is unavailable absent a joint judgment
against the tortfeasors, and, unlike in most states, contribution (and thus impleader
based upon contribution) among joint tortfeasors is seriously limited under
Mississippi law.” Estate of Hunter v. Gen. Motors Corp., 729 So. 2d 1264, 1275
(Miss. 1999); see also Hill v. Gen. Ins. Co. of Am., 456 F. Supp. 2d 757, 759 (N.D.
Miss. 2006) (“it is well established” that a cause of action for contribution “simply
does not exist under Mississippi law absent a joint judgment among the parties”).
“[W]hile this traditional Mississippi rule barring contribution is arguably unfair, it
nevertheless remains the law in this state . . . .” Hill, 456 F. Supp. at 759.
Even if impleader was appropriate, the Court agrees with those federal
courts to have addressed this issue that the FHA and the ADA preempt state law
claims for both indemnity and contribution. See, e.g., Miami Vall. Fair Hous. Ctr.,
Inc. v. Campus Vill. Wright State, LLC, No. 3:10cv00230, 2012 WL 4473236, at *7
(S.D. Ohio Sept. 26, 2012); United States v. Murphy Dev., LLC, No. 3:08-0960, 2009

7

WL 3614829, at *2 (M.D. Tenn. Oct. 27, 2009).
The Third-party Plaintiffs attempt to get around this law by arguing that
while they “did not specifically set forth state-law causes of action against Stewart
or the other Third-Party Defendants[,]” those claims “should be readily apparent.”
(Third-party Pls.’ Mem. 8, ECF No. 88). According to them, “Stewart was in a
contractual relationship with several of the Third-Party Plaintiffs because they
hired him to be the general contractor/construction manager on three of the projects
identified by the United States.” (Id.). Thus, they claim that “Stewart owed
contractual duties as well as professional duties and a standard of care to those
entities in terms of the design and construction of the complexes.” (Id.). In support,
the Third-party Plaintiffs cite United States v. Quality Built Construction, Inc., 309
F. Supp. 2d 767 (E.D.N.C. 2003), an FHA case in which the federal district court
denied summary judgment and allowed a corporation’s cross-claim against its
architect with respect to the corporation’s “distinct state law claims” for breach of
contract and breach of the standard of care under state law. Id. at 779.
Quality Built was distinguished in Miami Valley Fair Housing Center, Inc. v.
Campus Village Wright State, LLC, No. 3:10cv00230, 2012 WL 4473236 (S.D. Ohio
Sept. 26, 2012). There, an apartment complex owner and the company that
provided architectural services for the complex were sued for FHA violations. The
owner cross-claimed against the architect under theories of indemnification and
contribution. The court found that such claims were preempted by the FHA. Id. at

8

*7. However, the court went on to address the owner’s state law claims for breach
of contract and negligence, including a discussion of Quality Built:
There is a distinction between (1) a state-law claim seeking
indemnification or contribution stemming from proven FHA violations
and (2) a state-law contract claim arising from breach of a duty
imposed by the particular terms of a contract, rather than duties
imposed by the FHA; or a state law negligence claim based on a
standard of care not imposed by the FHA. This distinction hinges on
whether the breach of contract or negligence claims are in substance
reiterations of claims seeking indemnification or contribution for
proven FHA violations. For example, the District Court in Quality
Built Constr. determined that the FHA did not support the
defendant/builder’s claim for indemnification from a co-defendant (an
architectural design firm) to the extent the need for indemnification
arose from the defendant/builder’s FHA violations. Yet the District
Court also determined that defendant/builder raised ‘distinct state law
claims ...,’ for breach of contract and breach of standard of care, ‘which
may allow for some form of contribution from [the codefendant
architectural firm].’
Id. at *9 (internal citations omitted).
Accordingly, the court said that the owner’s state law claims could proceed,
“but only to the extent that those claims are not de facto indemnification or
contribution claims arising from [alleged] FHA violation(s), if any violation is
proven.” Id. Since the owner’s claims merely restated the FHA violations, the court
dismissed the state law claims as de facto claims for indemnification and/or
contribution arising from FHA violations. Id. at *9-10.
The purported breach of contract and negligence claims against Stewart are
akin to the de facto claims for indemnification and/or contribution in Miami Valley,
rather than the distinct state law claims in Quality Built. The Third-party

9

Plaintiffs “do not distinguish between a state law breach of contract or negligence
claim and a claim for indemnification or contribution arising from FHA violations.”
Miami Vall., 2012 WL 4473236, at *10. Rather, their purported state law claims
are all based on their allegations that the Third-party Defendants were “player[s] in
the ‘scheme’ alleged by the United States” and “should be made to contribute to
losses suffered by the Third-Party Plaintiffs if [their] conduct caused [the ThirdParty Plaintiffs] damages.” (Third-party Pls.’ Mem. 8, ECF No. 88). They argue
that their state laws claims are valid because the Third-party Defendants “could be
liable to them for part of the relief alleged by the United States due to [the alleged]
participation [by the Third-party Defendants] in the subject projects.” (Id. at 8-9).
Such de facto contribution claims are prohibited.
For all these reasons, the Court grants Stewart’s Motion to Dismiss.3 The
claims against Drace and HBSA will be dismissed for the same reasons.
City of Ridgeland (“Ridgeland”), City of Hattiesburg (“Hattiesburg”),
Harrison County, and Jackson County
The Third-party Plaintiffs claim that Ridgeland should be held liable if they
are held liable because
Ridgeland, by and through the Building Permits and Inspections
Divisions of its Community Development Department, is responsible
for ensuring that structures such as the Lexington are in compliance
with the applicable Building Codes adopted by the City and for issuing
Certificates of Occupancy when a structure is found to be in

3

For the same reasons, the Court finds that it would be futile to allow any
amendment, even if the Third-party Plaintiffs had properly requested one pursuant
to Federal Rule of Civil Procedure 15. (See Third-party Pls.’ Mem. 8, ECF No. 88).
10

compliance. The Building Code adopted by Ridgeland at the time that
the Lexington was completed required that the complex be FHA and
ADA compliant.
(1st Am. Compl. 4 (¶13), ECF No. 48). They state that Ridgeland should “be held
liable or otherwise contribute for all or part of the damages suffered due to its
actions in issuing a building permit and Certificate of Occupancy on a structure
that was not FHA and/or ADA compliant.” (Id. (¶14)). Their claims against
Hattiesburg, Harrison County, and Jackson County are nearly identical to their
claims against Ridgeland. (See id. at 6-9 (¶¶ 24-25, 28-29, 33-34)).
The Court finds that the Third-party Plaintiffs’ claims for state law
contribution against Ridgeland, Hattiesburg, Harrison County, and Jackson County
should be dismissed for the same reasons discussed above. Namely, Mississippi law
does not permit the Third-party Plaintiffs’ contribution claim, such claim would be
precluded by federal law in any event, and any state law claim for negligence
against these entities is a de facto contribution claim. (See, e.g., Third-party Pls.’
Mem. 5, ECF No. 103) (“If Dawn [one of the Third-party Defendants] is found liable,
then it seeks contribution because Ridgeland owed duties to Dawn to ensure
compliance with the ADA and the FHA . . . .”).
Additionally, it was the responsibility of the Third-party Plaintiffs, not the
cities or counties, to ensure compliance with the FHA and the ADA. This duty was
non-delegable. See Bryan, 2012 WL 2051861, at *4-5 (compliance with the ADA and
FHA is nondelegable); Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 602
(4th Cir. 2010) (developer of apartment housing “has a non-delegable duty to comply
11

with the ADA and FHA”); see also 42 U.S.C. § 3604(f)(6)(B) (“[d]eterminations by . . .
a unit of local government . . . shall not be conclusive in [FHA] enforcement
proceedings”). Since the cities and counties owed no duty to any Third-party
Plaintiff to ensure compliance with the FHA or the ADA, the Third-party Plaintiffs’
claims against those parties based on their alleged failure to do so do not state a
claim upon which relief can be granted.
Finally, since Ridgeland Construction’s claims against Ridgeland are the
same as those brought by the other Third-party Plaintiffs, (see Compl. 13 (¶¶ 5556), ECF No. 154), the Court dismisses those claims sua sponte under Federal Rule
of Civil Procedure 12(b)(6). See First Gibraltar Bank, FSB v. Smith, 62 F.3d 133,
135 (5th Cir. 1995); Guthrie v. Tifco Indus., 941 F.2d 374, 379 (5th Cir. 1991).
Gerald James Hopkins (“Hopkins”) and City of Long Beach (“Long
Beach”)
The claims against Hopkins and Long Beach are no different in substance
from the claims against the Movants. (See 1st Am. Compl. 5, 7-9 (¶¶ 15, 17-18, 26,
30, 35)). Accordingly, the Court sua sponte dismisses those claims under Rule
12(b)(6). See First Gibraltar Bank, 62 F.3d at 135; Guthrie, 941 F.2d at 379. The
Court likewise sua sponte dismisses Ridgeland Construction’s claims against
Hopkins. (See Compl. 13 (¶ 57), ECF No. 154).
Motion for Joinder
The Court next considers the argument of the Third-party Plaintiffs that the
Third-party Defendants should be joined as defendants in this action under Federal
12

Rule of Civil Procedure 19, or, alternatively, Rule 20.
Federal Rule of Civil Procedure 19
Under Rule 19(a)(1)(A), a court is required to join a “person who is subject to
service of process and whose joinder will not deprive the court of subject-matter
jurisdiction . . . if . . . in that person’s absence, the court cannot accord complete
relief among existing parties . . . .” Rule 19 is not a substitute for third-party
practice and “‘does not empower the court to order joinder of a third-party
defendant, because that is what Rule 14 is for.’” United States ex rel. Branch
Consultants, L.L.C. v. Allstate Ins. Co., 265 F.R.D. 266, 270 (E.D. La. 2010) (citation
omitted).
The Third-party Plaintiffs argue that they are not seeking contribution
against the Third-party Defendants under Rule 19, but, rather, that they “seek
joinder of the other parties that participated in the alleged scheme by the United
States so that those parties may bear the fault attributable to them if violations did
occur.” (Defs.’ Reply 5, ECF No. 161; see also Defs.’ Mem. 2, 5-6, ECF No. 127). The
Court construes this as an argument that the Third-party Defendants should be
joined because they are necessary parties to this action separate and apart from any
contribution claims (which claims would be improper under Rule 19).
The Third-party Plaintiffs bear the initial burden to show that a missing
party is necessary. Hood ex rel. Miss. v. City of Memphis, 570 F.3d 625, 628 (5th
Cir. 2009). However, if “an initial appraisal of the facts indicates that a possibly
necessary party is absent, the burden of disputing this initial appraisal falls on the
13

party who opposes joinder.” Id. (citation and quotation marks omitted). The Court
finds that the Third-party Plaintiffs cannot meet their initial burden. Regardless,
the Third-party Defendants have shown that they are not necessary parties.
A missing party is necessary if in the absence of that party, the Court cannot
accord complete relief among the existing parties. See Orff v. United States, 545
U.S. 596, 602-03 (2005). Therefore, the Third-party Defendants must be joined
under Rule 19 if the Court cannot accord complete relief between the United States
and the Defendants/Third-party Plaintiffs without the joinder of the Third-party
Defendants. See Lichterman v. Pickwick Pines, Marina, Inc., No. 1:07cv256-SA-JA,
2010 WL 807439, at *2 (N.D. Miss. Mar. 2, 2010).
The Defendants/Third-party Plaintiffs argue that the Third-party Defendants
must be joined because “Defendants’ interest would not be protected as they would
bear sole responsibility for the shared liability between the parties not named in the
lawsuit.” (Defs.’ Mem. 6, ECF No. 127). First, “[i]t is well-established that Rule 19
does not require the joinder of joint tortfeasors.” Nottingham v. Gen. Am. Commc’ns
Corp., 811 F.2d 873, 880 (5th Cir. 1987); Temple v. Synthes Corp., Ltd., 498 U.S. 5,
7 (1990) (“It has long been the rule that it is not necessary for all joint tortfeasors to
be named as defendants in a single lawsuit.”). Requiring compulsory joinder of the
Third-party Defendants “would constitute an abuse of this Court’s discretion.”
United States v. Townhomes of Kings Lake HOA, Inc., No. 8:12cv2298-T-33TGW,
2013 WL 807152, at *4 (M.D. Fla. Mar. 5, 2013) (citing Temple, 498 U.S. at 7).

14

Second, even accepting the Third-party Plaintiffs’ new argument that the
parties were not necessarily joint tortfeasors,4 the Third-party Plaintiffs have not
established that the United States cannot get complete relief against them without
the presence of the Third-party Defendants. As discussed above, each Defendant
had a non-delegable duty to ensure compliance with the ADA and FHA, separate
and apart from any party sought to be joined. See Bryan, 2012 WL 2051861, at *45; Niles Bolton, 602 F.3d at 602. If the United States can show a breach of that
duty by a Defendant, it will be entitled to a recovery and can obtain complete relief
against that Defendant. The United States did not have to include the Third-party
Defendants in this action in order for complete relief to be accorded among it and
the current Defendants. See, e.g., Townhomes of Kings Lake, 2013 WL 807152, at
*4. The case of Baltimore Neighborhoods, Inc. v. Rommel Builders, Inc., 3 F. Supp.
2d 661 (D. Md. 1998), cited by the Third-party Plaintiffs, does not change this result
since, inter alia, that case did not deal with who is an indispensable party to an
action under the FHA.
Finally, because the Court finds that the Third-party Defendants are not
necessary parties under Rule 19(a), it has no need to consider the four factors in
Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102 (1968), whether,
under Rule 19(b), “in equity and conscience, the court should proceed without a

4

The Third-party Plaintiffs cite no law for this argument. Even so, the
absence of joint and several liability is not the standard for joining parties under
Rule 19.
15

party whose absence from the litigation is compelled.” See id. at 109-10; see also
Temple, 498 U.S. at 8 (“Here, no inquiry under Rule 19(b) is necessary, because the
threshold requirements of Rule 19(a) have not been satisfied.”).
Federal Rule of Civil Procedure 20
Rule 20(a)(2) allows for permissive joinder of defendants if “any right to relief
is asserted against them jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of transactions or
occurrences; and . . . any question of law or fact common to all defendants will arise
in the action.” However, “a defendant can not use rule 20 to join a person as an
additional defendant.” Hefley v. Textron, Inc., 713 F.2d 1487, 1499 (10th Cir. 1983);
Conceal City, L.L.C. v. Looper L. Enforcement, LLC, 917 F. Supp. 2d 611, 623 (N.D.
Tex. 2013) (“A defendant has no right to demand permissive joinder of an absent
person as a defendant.”); Moore v. Cooper, 127 F.R.D. 422, 422 (D.D.C. 1989) (“Rule
20(a) is a rule by which plaintiffs decide who to join as parties and is not a means
for defendants to structure the lawsuit.”). The Third-party Plaintiffs cite no
contrary law. Accordingly, the Court also denies the request for joinder pursuant to
Rule 20.
CONCLUSION
For all the reasons discussed herein, it is beyond doubt that the Third-party
Plaintiffs, including Ridgeland Construction in its recently filed Third-party
Complaint, can prove no set of facts in support of any claim against the Third-party
Defendants. Furthermore, the Third-party Plaintiffs have not shown that joinder of
16

the Third-party Defendants is necessary pursuant to Federal Rule of Civil
Procedure 19, and they are not entitled to the requested relief pursuant to Federal
Rule of Civil Procedure 20.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the [70, 76, 80,
85, 94, 110, 134] Motions to Dismiss filed by Greg Stewart and Nosidam, LLC; City
of Ridgeland; Harrison County; Jackson County; Drace Construction Corp.; City of
Hattiesburg; and Harry Baker Smith Architects, II, LLC are GRANTED and all
claims against those parties are DISMISSED WITH PREJUDICE. Those parties
are therefore terminated from this action.
IT IS FURTHER ORDERED AND ADJUDGED that all claims against
Gerald James Hopkins and City of Long Beach are DISMISSED WITH
PREJUDICE and those parties are therefore terminated from this action.
IT IS FURTHER ORDERED AND ADJUDGED that the [154] Thirdparty Complaint against Gerald James Hopkins and the City of Ridgeland filed by
Ridgeland Construction One, LLC is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED AND ADJUDGED that the [126] Motion for
Joinder is DENIED, and that the [83] Joint Motion to Stay Proceedings is
DENIED AS MOOT.
SO ORDERED AND ADJUDGED this the 26th day of November, 2014.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
17