Clinton et al v. Johnson et al
Filing
100
ORDER denying without prejudice 36 Motion to Dismiss, and allowing Counterclaimants 14 days to amend Counterclaim. Signed by Honorable David C. Bramlette, III on 2/11/2014 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
J. PAUL CLINTON and
STOKES & CLINTON, P.C.
VS.
PLAINTIFFS
CIVIL ACTION NO. 3:13-cv-871(DCB)(MTP)
W. RICHARD JOHNSON, SR., DAVID
M. SESSUMS, VARNER, PARKER &
SESSUMS, P.A., AND TAMRA WARNOCK
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the plaintiffs J. Paul
Clinton and Stokes and Clinton, P.C.’s motion to dismiss (docket
entry 36) the Counterclaim filed by defendants David M. Sessums and
Varner, Parker & Sessums, P.A.
Having carefully considered the
motion and response, the memoranda and the applicable law, and
being fully advised in the premises, the Court finds as follows:
This malicious prosecution action1 was brought by plaintiffs
Clinton and Stokes & Clinton (“the plaintiffs”) against defendants
Sessums and Varner, Parker & Sessums (“the Sessums defendants”), W.
Richard Johnson, Sr., and Tamra Warnock,2 arising from a RICO
action filed by the Sessums defendants and others against the
1
The claims asserted in the plaintiffs’ Complaint are:
malicious prosecution, intentional and/or negligent infliction of
emotional distress, libel per se, libel per quod, invasion of
privacy (false light), invasion of privacy (appropriation of
plaintiffs’ names), and abuse of process. For the sake of
brevity, the plaintiffs’ claims are collectively referred to as
an action for “malicious prosecution.”
2
Defendants Morgan & Morgan, P.A., Morgan & Morgan, PLLC,
and Omar L. Nelson have been dismissed from this action.
plaintiff.
a
As part of their Answer, the Sessums defendants bring
counterclaim
against
the
plaintiffs.
The
plaintiffs
seek
dismissal of the counterclaim pursuant to Federal Rule of Civil
Procedure 12(b)(6).
In considering a motion under Rule 12(b)(6), the “court
accepts ‘all well-pleaded facts as true, viewing them in the light
most favorable to the [counter-]plaintiff.’” Martin K. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)
(quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).
However, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.
Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)).
To overcome a Rule 12(b)(6) motion, a plaintiff must plead
“enough facts to state a claim to relief that is plausible on its
face.”
Twombly, 550 U.S. at 570.
“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).”
omitted).
Id. at 555 (citations and footnote
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
2
Iqbal, 556 U.S. at 678.
In the present motion, the plaintiffs contend:
The Sessums Defendants have failed to plead sufficient
facts from which a malicious prosecution claim or a claim
for abuse of legal process can be inferred.
The
Counterclaims do not plead any relevant facts that give
rise to their asserted claims. The Counterclaims do not
contain a “short and plain statement of the claim showing
that the pleader is entitle[d] to relief.” Nor do they
“give the defendant fair notice of what the ... claim is
and the ground upon which it rests.” Conley [v. Gibson,
355 U.S. 41, 47 (1957)]. The Counterclaims contain mere
“labels and conclusion[s], and a recitation of some of
the elements of a couple of causes of action” which fail
to comply with the Twombly pleading standard.
The
Counterclaims fail to provide factual allegations that
are “enough to raise a right to relief above the
speculative level.” Twombly at 555.
Motion to Dismiss, p. 2.
In the Fifth Circuit, motions to dismiss under Rule 12(b)(6)
are viewed with disfavor and are rarely granted.
Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). The Supreme Court
has
held
that
a
complaint
does
not
need
detailed
factual
allegations to survive a Rule 12(b)(6) motion to dismiss, but the
pleader’s obligation to state the grounds of entitlement to relief
requires “more than labels and conclusions.”
Twombly, 550 U.S. at
555.
The
Counter-Complaint
alleges
that
the
plaintiffs
“have
demonstrated malice in instituting their Complaint against these
Defendants,” that the plaintiffs “instituted this action for a
purpose other than that of bringing these Defendants to justice,”
and that the defendants “have suffered injury or damage as a result
3
of said Complaint and said claim.”
Counter-Complaint, ¶ 6.
The
Sessums defendants also allege that the plaintiffs “have misused or
misapplied a legal process in a wrongful manner to accomplish a
purpose not warranted or authorized by the legal process,” and that
the plaintiffs “maliciously perverted the regular use of civil
process for a purpose and to obtain a result not lawfully warranted
Id., ¶ 7.
or properly obtainable thereby.”
Finally, the Sessums
defendants allege that the plaintiffs “had an ulterior motive for
filing [their] Complaint against these Defendants and committed
wilful acts not authorized by the process and not in the regular
conduct of these proceedings for which these Defendants have
suffered damage as a result of the perverted use of legal process
and said damage is a proximate result of such misuse of the legal
process.”
Id., ¶ 8.
Nowhere in the Counter-Complaint do the defendants set forth
their claims or causes of action, but it appears from their
allegations that they are bringing claims for malicious prosecution
and
abuse
of
process.
Moreover,
the
Court
finds
that
the
counterclaim does not contain sufficient information to allow a
responsive pleading to be framed, nor to allow the Court to rule on
the present motion to dismiss. In such cases, the proper remedy is
a motion for a more definite statement under Rule 12(e), and/or an
order allowing the defendants/counter-plaintiffs to amend.
The
Court shall therefore permit the Sessums defendants to amend their
4
counterclaim to state more specifically for each claim they allege:
(1) the nature of the claim, (2) the elements of the claim, and (3)
the factual basis for each of the elements of the claim.
See
Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 163 (5th Cir.
1999)(approving the district court’s sua sponte allowance of an
amendment under Rule 12(e) where the plaintiff originally failed to
plead with sufficient clarity).
Accordingly,
IT IS HEREBY ORDERED that the plaintiffs J. Paul Clinton and
Stokes and Clinton, P.C.’s motion to dismiss (docket entry 36) the
Counterclaim filed by defendants David M. Sessums and Varner,
Parker & Sessums, P.A., is DENIED WITHOUT PREJUDICE;
FURTHER ORDERED that defendants David M. Sessums and Varner,
Parker & Sessums, P.A., shall have fourteen (14) days from the date
of entry of this Memorandum Opinion and Order to amend their
counterclaim in compliance with Rule 8.
SO ORDERED, this the 11th day of February, 2014.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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