Harried et al v. Forman Perry Watkins Krutz & Tardy LLP et al

Filing 19

Memorandum Opinion and Order granting re 4 MOTION to Dismiss Plaintiffs' Claims against Mulholland and Forman Perry; denying 11 MOTION to Remand Signed by District Judge Tom S. Lee on 7/12/11 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
WILLIE R. HARRIED AND WIFE,
JOYCE M. HARRIED
VS.

PLAINTIFFS
CIVIL ACTION NO. 3:11CV102TSL-MTP

FORMAN PERRY WATKINS KRUTZ
& TARDY RONALD KING, ET AL.

RESPONDENTS

MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of plaintiffs
Willie R. Harried and Joyce M. Harried to remand, and of
defendants Forman Perry Watkins Krutz & Tardy (Forman Perry) and
Daniel Mulholland to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.

The motions have been fully

briefed, and the court, having considered the memoranda of
authorities submitted by the parties, concludes that on the basis
of plaintiffs’ complaint, they have no reasonable possibility of
recovery against Mulholland and Forman Perry, and therefore, the
motion to remand will be denied and these defendants’ motion to
dismiss will be granted.
In 2001, Willie Harried became a plaintiff with approximately
175 other plaintiffs, in a lawsuit filed in the Circuit Court of
Jefferson County against Illinois Central, styled Elbert Eakens v.
Illinois Central Railroad Co., Civil Action No. 2001-65, in which
the plaintiffs, including Harried, asserted claims under the

Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., based on
allegations they suffered from asbestos-related disease as a
result of exposure to asbestos while employed by Illinois Central.
In August 2002, a settlement agreement was reached between the
parties in the Eaton case, pursuant to which Illinois Central
agreed to a payment schedule tied to each respective plaintiff’s
county of residence and specific medical diagnosis.

As part of

the agreement, each plaintiff was required to complete a Pulmonary
Questionnaire which requested information about the respective
plaintiff’s diagnosis and exposure.

Harried completed a

questionnaire and on July 28, 2003, his attorneys, William Guy and
Thomas Brock, forwarded his completed questionaire to Illinois
Central.

On November 26, 2003, after receiving the questionnaire,

Illinois Central tendered to Harried and his attorneys a check in
the amount of $90,000 in settlement of his claim.
Subsequently, in November 2006, Illinois Central filed suit
in this court against Willie Harried, charging him with fraud in
connection with the settlement.

Illinois Central alleged that

following the settlement, it had discovered that certain of
Harried’s responses on the Pulmonary Questionnaire were materially
false.

In particular, Illinois Central alleged that in response

to specific questions seeking information about the timing of his
diagnosis and any prior asbestos claims, Harried had failed to
disclose that he had been a plaintiff in a 1995 lawsuit against
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asbestos manufacturers in which he sought recovery for asbestosrelated disease;1 and Illinois Central asserted that had Harried’s
responses been truthful, it would not have settled his claim
because it would have known that his claim accrued in or prior to
1995 and that his 2001 complaint against Illinois Central was
consequently barred by FELA’s three-year statute of limitations.
In December 2007, after Harried was deposed and testified
that he had disclosed his participation in the Cosey case to Guy
and Brock on an intake form, and after copies of the intake form
produced in discovery by Guy and Brock did not match the
description of the form Harried testified he had completed,
Illinois Central filed an amended complaint to add Guy and Brock
as defendants on claims for fraud and breach of the duty of good
faith and fair dealing.2

The case was ultimately tried, and on

1

In July 1995, Willie Harried became a plaintiff in
Cosey, et al. v. E.D. Bullard, et al., Civil Action 95-0069, a
mass tort suit filed in the Circuit Court of Jefferson County,
Mississippi, involving over two hundred plaintiffs and numerous
asbestos manufacturers, in which the plaintiffs, including
Harried, alleged they had been exposed to asbestos and suffered
from asbestos-related disease. In August 2002, after initiation
of the Eaton case, he also became a plaintiff in another case mass
tort lawsuit against asbestos manufacturers filed in the Jefferson
County Circuit Court, Lee Anderson, et al. v. Garlock, Inc., et
al., No. 2002-255, in which he and his co-plaintiffs alleged
injury from exposure to asbestos. The questionnaire provided to
Illinois Central disclosed Harried’s participation in Anderson but
not his participation in the earlier Cosey case.
2

Illinois Central had moved to amend to also add a claim
against Harried for negligent misrepresentation, but its motion
was denied.
3

March 11, 2010, the jury returned a verdict against Brock and Guy
but in favor of Harried on Illinois Central’s fraud claim against
him.
On January 19, 2011, Willie Harried and his wife, Joyce,
filed the present action in the Circuit Court of Hinds County
against Illinois Central, and against Daniel Mulholland and the
Forman Perry law firm, which had represented Illinois Central in
its lawsuit against Harried, alleging claims for abuse of process,
malicious prosecution, conspiracy, negligent and intentional
infliction of emotional distress, and punitive damages based on
allegations that Illinois Central, through its counsel, filed and
pursued the lawsuit against Willie Harried knowing that the claim
against him was time-barred and yet proceeding anyway, with an
ulterior motive of gathering information in order to initiate and
pursue litigation against the attorneys Brock and Guy.
Defendants timely removed the case to this court pursuant to
28 U.S.C. § 1446 on the basis of diversity jurisdiction, asserting
improper joinder of Mulholland and Forman Perry, whose Mississippi
citizenship is the same as plaintiffs.

Following removal,

Mulholland and Forman Perry promptly filed their Rule 12(b)(6)
motion to dismiss.

The Harrieds thereafter filed their motion to

remand.
In support of their motion to dismiss, and in opposition to
plaintiffs’ remand motion, Mulholland/Forman Perry submit that as
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to each of plaintiffs’ asserted claims against them, there are
various bases for concluding plaintiffs have failed to state a
cognizable claim and hence have no reasonable possibility of
recovery against them.
To establish a claim for improper joinder, the party seeking
removal must demonstrate either “(1) actual fraud in the pleading
of jurisdictional facts, or (2) inability of the plaintiff to
establish a cause of action against the non-diverse party in state
court.”

Travis v. Irby, 326 F.3d 644, 647 (5th Cir. 2003) (citing

Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir. 1999)).
Under the second prong, which is what is at issue here, the court
must evaluate “whether the defendant has demonstrated that there
is no possibility of recovery by the plaintiff against an in-state
defendant, which stated differently means that there is no
reasonable basis for the district court to predict that the
plaintiff might be able to recover against an in-state defendant.”
McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005) (quoting
Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir.
2004) (en banc).

“If no reasonable basis of recovery exists, a

conclusion can be drawn that the plaintiff's decision to join the
local defendant was indeed fraudulent, unless that showing compels
dismissal of all defendants.”

Id.3

3

Improper joinder issues are

The “common defense” exception, identified in Smallwood
v. Illinois Central Railroad Co., 385 F.3d 568, 573 (5th Cir.
2004), recognizes that there is no improper joinder when the
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ordinarily resolved by conducting a Rule 12(b)(6)-type analysis,
though in cases where the plaintiff has stated a claim, but
“misstated or omitted discrete facts,” the court has the
discretion to pierce the pleadings and conduct a summary inquiry.
Id. at 183 n.6 (citing Smallwood, 385 F.3d at 573).
A plaintiff fails to state a claim for relief under Rule
12(b)(6) when the complaint does not contain “enough facts to
state a claim to relief that is plausible on its face.”

Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed.
2d 929 (2007).

“Factual allegations must be enough to raise a

right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).”

Id. at 555, 127 S. Ct. 1955.

To overcome a

motion to dismiss, a complaint should “contain either direct
allegations on every material point necessary to sustain a
recovery ... or contain allegations from which an inference may
fairly be drawn that evidence on these material points will be
introduced at trial.”

Campbell v. City of San Antonio, 43 F.3d

nonresident defendant's “showing that compels a holding that there
is no reasonable basis for predicting that state law would allow
the plaintiff to recover against the in-state defendant
necessarily compels the same result for the nonresident
defendant[.]” Id. at 574. This rule is not applicable here, as
it applies only where the defenses asserted by the resident
defendants “‘equally’ and ‘necessarily’ ‘compel[]’ dismissal of
all claims against all the diverse defendants.” Boone v.
Citigroup, Inc., 416 F.3d 382, 390 (5th Cir. 2005) (citing
Smallwood).
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973, 975 (5th Cir. 1995).

Such analysis must be done in the

context of Rule 8's notice pleading standard, which requires only
“‘a short and plain statement of the claim showing that the
pleader is entitled to relief in order to ‘give defendant fair
notice of what the ... claim is and the grounds upon which it
rests.’”

Bell Atl. Corp., 550 U.S. at 554-55 (quoting Rule 8).

“Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge,
there is no improper joinder.”

Smallwood, 385 F.3d at 573.

“As a

practical matter, the negative corollary of this statement will
often hold true:

if a plaintiff's claims against in-state

defendants cannot survive a Rule 12(b)(6) analysis, the finding of
improper joinder follows.”

Druker v. Fortis Health, Civil Action

No. 5:06-cv-00052, 2007 WL 38322, 7 (S.D. Tex. Jan. 4, 2007).
In the case at bar, among other bases, Mulholland/Forman
Perry argue that there is no reasonable possibility of recovery
against them on plaintiffs’ putative claims for abuse of process,
intentional infliction of emotional distress and conspiracy
because these claims are all barred by the applicable statutes of
limitations.

Neither in their own motion to remand nor in their

response to the pending motion to dismiss do plaintiffs contend
otherwise.

In fact, in their pending submissions, plaintiffs do

not even mention any of these claims; rather, the only claim they
address and contend gives them a reasonable possibility of

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recovery against Mulholland/Forman Perry is their claim for
malicious prosecution.
The abuse of process claims, which are subject to a one-year
limitations period, see Sullivan v. Boyd Tunica, Inc., Civil
Action No. 2:06CV016-B-A, 2007 WL 541619, 3 (N.D. Miss. Feb. 16,
2007) (citing Suthoff v. Yazoo County Indus. Dev. Corp., 722 F.2d
133, 136 (5th Cir. 1983)), are clearly time-barred.

“Abuse of

process occurs when (1) a party makes an illegal use of a legal
process, (2) the party has an ulterior motive, and (3) damage
results from the perverted use of process.”

Ayles ex rel. Allen

v. Allen, 907 So. 2d 300, 2003 (Miss. 2005).

“‘Unlike an action

for malicious prosecution where a legal termination of the
prosecution complained of is essential, in an action for abuse of
process it is not necessary, ordinarily, to establish that the
action in which the process is issued has terminated
unsuccessfully.”

Sullivan, 2007 WL 541619 at 3 (quoting Hyde

Constr. Co. v. Koehring Co., 321 F. Supp. 1193, 1207 (S.D. Miss.
1969)).

“A cause of action for abuse of process, therefore,

accrues at ‘the termination of the acts which constitute the abuse
complained of, and not from the completion of the action which the
process issued....’”
1207).

Id. (quoting Hyde Constr., 321 F. Supp. at

In this case, plaintiffs’ abuse of process claims are

grounded on their allegations that in November 2006, defendants
knew any claim against Willie Harried would be time-barred but
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they nevertheless filed suit against him for fraud, and that they
thereafter deposed Willie Harried in 2007, all for the ulterior
purpose of gathering information for filing and pursuing
litigation against Brock and Guy for their fraudulent conduct.
The prior litigation terminated in March 2010, less than a year
prior to the Harrieds’ commencement of the present action.

But as

Mulholland/Forman Perry correctly point out, the termination date
is not determinative; rather the pertinent dates are the dates of
the acts which constitute the abuse of process complained of by
the Harrieds; those acts (filing suit and deposing Willie Harried)
were committed in 2006 and 2007, well more than a year before this
suit was filed.4

Accordingly, the abuse of process claims are

time-barred.
Civil conspiracy claims are also subject to a one-year
limitations period.

See McGuffie v. Herrington, 966 So. 2d 1274,

4

The Harrieds’ complaint undertakes to plead three abuse
of process counts, directed, respectively, to defendants’ alleged
acts of filing a complaint which they knew was time-barred;
noticing and taking Willie Harried’s deposition in 2007 when they
knew the claim was time-barred with an ulterior motive of
gathering information for a suit against Guy and Brock; and
continuing to pursue the civil litigation against Harried after
the April 7, 2009 deposition of John Murphy (which according to
the Harrieds’ confirmed their claim was time-barred) when their
true motivation was to litigate against Brock and Guy. Although
the Harrieds make allegations relating to defendants’ continuing
to pursue time-barred claims against Harried with an illegitimate
motive, the acts which are alleged to have constituted the abuse
of process are defendants’ alleged filing of a time-barred
complaint and their deposing Willied Harried for an improper
purpose.
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1278 (Miss. Ct. App. 2007).

Plaintiffs’ allegation in support of

their conspiracy count is brief:

“In planning, filing and

continuing the federal suit against Harried ... the Defendants
acted in combination, engaging in a conspiracy to make fraudulent
use of a legal proceeding....”

Mulholland/Forman Perry argue, and

plaintiffs do not dispute, that plaintiffs were aware of all the
facts that support their conspiracy claim at least two years
before this lawsuit was filed.

Accordingly, their conspiracy

claim is thus time-barred.
Likewise, plaintiffs’ claim for intentional infliction of
emotional distress, which is also apparently based on defendants’
filing and continuation of the lawsuit, is barred by the
applicable one-year limitations period of Mississippi Code
Annotated § 15-1-35.

See Randolph v. Lambert, 926 So. 2d 941, 945

(Miss. Ct. App. 2006) (intentional infliction of emotional
distress premised on filing of frivolous lawsuit was not a
continuing tort and thus claim accrued and limitations period
began to run when case was filed).
As for plaintiffs’ claim for negligent infliction of
emotional distress, Mulholland/Forman Perry point out that an
essential element of this cause of action is a duty owed by them
to plaintiffs, see Blake v. Wilson,

962 So. 2d 705, 715 (Miss.

Ct. App. 2007) (listing elements of tort to include duty, breach,
causation, and harm); and they submit that no cause of action is
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cognizable against them here because no duty exists between an
attorney and his client’s adversary, see James v. Chase Manhattan
Bank, 173 F. Supp. 2d 544, 550 (N.D. Miss. 2001) (stating, “This
Court is unaware of any authority, however, not only in
Mississippi, but anywhere in the country, which suggests that an
attorney owes a duty, fiduciary or otherwise, to the adverse party
in a case he is litigating.”); Roussel v. Robbins, 688 So. 2d 714,
725 n.4 (Miss. 1996) (stating, “an attorney has no duty to an
adverse party.”).

Accordingly, plaintiffs have no possibility of

recovery against Mulholland/Forman Perry on this claim.
That brings the court to the only claim plaintiffs have
actually addressed on the present motions, their claim for
malicious prosecution.

Plaintiffs’ complaint for malicious

prosecution is based entirely on their allegation that defendants
knew at the time they filed the federal lawsuit against Willie
Harried that the sole claim therein, for fraud, was time-barred.
In the motion to dismiss, and in response to plaintiffs’ motion to
remand, Mulholland/Forman Perry note that plaintiffs have
expressly alleged that “[a]t all times mentioned in this action,
the Defendants Forman Perry and Mulholland acted as agent and
legal counsel for Illinois Central”; and, citing Rose v. Tullos,
994 So. 2d 734 (Miss. 2008), these defendants argue that they
cannot be liable to plaintiffs on a claim for malicious
prosecution since in connection with the previous lawsuit, they
11

are not alleged to have acted other than in their capacity as
counsel for Illinois Central.

See Rose v. Tullos, 994 So. 2d at

739 (holding that an attorney is “not the proper party against
whom to bring [a civil malicious prosecution] action”); cf. James,
173 F. Supp. 2d at 551 (holding that “an action for wrongful
eviction is properly brought against the party who instituted the
action ... not the attorney who represented that party in the
eviction proceeding”).

For their part, plaintiffs do not even

acknowledge this argument or these authorities, and have offered
no authority to the contrary.

The court thus concludes that

plaintiffs have no reasonable possibility of recovery against
Mulholland/Forman Perry on the claim for malicious prosecution.5

5

There are other reasons plaintiffs cannot recover
against these defendants, among which is the fact that plaintiffs
cannot establish that the previous claim against them resulted in
a favorable termination on the merits, an essential element of a
cause of action for malicious prosecution. See Bearden v.
BellSouth Telecommunications, Inc., 29 So. 3d 761, 765-66 (Miss.
2010). The jury in the trial of Illinois Central’s case against
Willie Harried resulted in a favorable verdict for Harried; but
that verdict was a general verdict and thus there is no way to
determine whether the jury found in Harried’s favor on the merits,
or on Harried’s statute of limitations defense. While the former
would obviously constitute a favorable termination on the merits,
the latter would not. See id. (recognizing and adopting the
“almost universal rule” that “a dismissal on procedural grounds
does not reflect on the merits and, therefore, cannot constitute a
favorable termination for malicious-prosecution purposes”) (citing
Parrish v. Marquis, 172 S.W.3d 526, 532 (Tenn. 2005)).
12

Based on the foregoing, it is ordered that plaintiffs’ motion
to remand is denied; and it is further ordered that the motion of
defendants Mulholland and Forman Perry to dismiss is granted.
SO ORDERED this 12th day of July, 2011.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

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