McDonnell et al v. Burch et al
ORDER taking under advisement 4 Motion to Dismiss; granting 14 Motion to Set Aside Default for the reasons set out in the Order. Plaintiffs are given ten (10) days to file a proper motion to amend. Signed by District Judge Daniel P. Jordan III on September 7, 2017. (SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
THOMAS P. MCDONNELL, III AND
CLM RENTALS, INC.
CIVIL ACTION NO. 3:17-CV-138-DPJ-KFB
WILLIAM C. BURCH, III,
MERIT ASSOCIATES, INC.,
AND W. SCOTT BRANDON
There are two motions pending in this contract dispute: Defendant W. Scott Brandon’s
Motion to Dismiss  and Defendant William C. Burch, III’s Motion to Set Aside Default .
Plaintiffs have also made a request to amend their Complaint, though not in a formal motion.
For the reasons that follow, the Court takes Brandon’s motion to dismiss under advisement, and
Plaintiffs are instructed to file a proper motion seeking leave to amend. Burch’s motion to set
aside is granted.
Plaintiffs Thomas P. McDonnell and CLM seeks to enforce various financial agreements
regarding the asset sale of CLM Rentals, Inc., a company for which he was the president and sole
shareholder. On March 1, 2008, Defendant William C. Burch, III, purchased CLM’s assets and
signed a Promissory Note [1-1] pledging to repay McDonnell, who financed the purchase.
Plaintiffs say the Promissory Note was secured by four additional agreements signed that same
day: (1) Brandon’s Stock Pledge Agreement [1-3] with CLM giving CLM a security interest in
Defendant Merit Associates, Inc., stock should Burch default on the Promissory Note; (2)
Burch’s Stock Pledge Agreement [1-2] with CLM making similar promises in CLM’s favor; (3)
Brandon’s Continuing Guaranty [1-5] guaranteeing payment of Burch’s debt to CLM; and (4)
Merit’s Continuing Guaranty [1-4] also guaranteeing payment of Burch’s debt to CLM.
At the heart of this dispute is a disconnect between the terms of Burch’s Promissory Note
and the agreements allegedly securing it—primarily Brandon’s Continuing Guaranty. Burch’s
Promissory Note establishes a debt Burch owed McDonnell. Yet Brandon’s Continuing
Guaranty states that it secures only Burch’s debt to CLM, with no mention of the McDonnell
debt. Brandon therefore says his guaranty gives CLM no right to demand payment for any debts
Burch owed McDonnell. Def.’s Mem.  at 1. And because “[t]here is no alleged indebtedness
of Burch to CLM”—the debt addressed in his guaranty—Brandon seeks dismissal. Id. at 2.
Before addressing that motion, the Court concludes that it should clean up the record and
address Plaintiffs’ desire to amend their complaint and Burch’s motion to set aside the Clerk’s
entry of default.
Leave to Amend
Plaintiffs responded to Brandon’s motion in a legal memorandum. In it, they seek leave
to amend the Complaint so they can allege mutual mistake and seek reformation of Brandon’s
Continuing Guaranty. See Pls.’ Memo.  at 7. Simply put, they say the guaranty misidentified
CLM as the creditor rather than McDonnell.
“The Court should freely give leave [to amend a complaint] when justice so requires.”
Fed. R. Civ. P. 15(a)(2). But parties must follow the Court’s rules. In particular, “[a] response
to a motion may not include a counter-motion in the same document” as was done here. L.U.
Civ. R. 7(b)(3)(C). And even assuming Plaintiffs had followed this rule, they otherwise failed to
attached a proposed amended pleading. See L.U. Civ. R. 7(b)(2) (“If leave of court is required
under Fed. R. Civ. P. 15, a proposed amended pleading must be an exhibit to a motion for leave
to file the pleading.”).
That said, both parties address this issue to some extent in their briefs, and it appears that
there might be a plausible basis for a mutual-mistake claim. Without going into detail, the other
agreements that unambiguously secure the Burch-to-McDonnell Promissory Note seem to
misidentify CLM as Burch’s creditor, making it plausible that the disputed guaranty contains the
same mistake. In addition, the Court believes it would be more prudent to consider the mutualmistake amendment before exploring Brandon’s Motion to Dismiss. The former could impact
the latter. Accordingly, Plaintiffs may file a motion to amend—attaching a proposed amended
complaint—within ten (10) days of the entry of this order.
Motion to Set Aside Default
Defendant Burch seeks an order setting aside the Clerk’s Entry of Default  entered
against him on July 11, 2017. Plaintiffs have not timely responded in opposition, and under
Local Rule 7(b)(3)(E), the Court may grant non-dispositive motions as unopposed. Accordingly,
the Court finds that Burch’s motion  should be granted. See United States v. One Parcel of
Real Prop., 763 F.2d 181, 183 (5th Cir. 1985) (“The decision to set aside a default decree lies
within the sound discretion of the district court.”). The Clerk’s Entry of Default  is hereby
set aside, and Burch’s Answer  is now properly before the Court.
The Court has considered all the parties’ arguments. Those not specifically addressed do
not change the outcome. For the foregoing reasons, Brandon’s Motion to Dismiss  is taken
under advisement; Plaintiffs are given ten (10) days to file a proper motion to amend; and
Burch’s Motion to Set Aside  is granted.
SO ORDERED AND ADJUDGED this the 7th day of September, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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