Otis et al v. Mississippi Sand Solutions, LLC et al
ORDER denying 44 Motion to Amend/Correct; denying 54 Motion to Set Aside Judgment. Signed by District Judge Kristi H. Johnson on 6/7/21. (TW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
BESSIE B. OTIS, ET AL.,
CIVIL ACTION NO. 3:19-CV-779-KHJ-LGI
MISSISSIPPI SAND SOLUTIONS, LLC
This action is before the Court on Plaintiffs’ Motion to Amend  the Court’s
Order  and Motion to Set Aside Judgment . For these reasons, the Court
denies both motions.
Plaintiffs ask the Court to reconsider its Order  denying their Motion to
Remand  and granting Defendants Mississippi Sand Solutions, LLC (“MSS”)
and Chicago Title Insurance Company’s (“Chicago Title”) Motions to Dismiss ;
 under Federal Rules of Civil Procedure 59 and 60. Though Plaintiffs declined to
file any response to either of Defendants’ Motions to Dismiss (even after requesting
an extension of time to do so), 1 they now question the Court’s ruling on their claims
Plaintiffs seek to excuse their failure to respond by stating “undersigned counsel believed
these matters to be stayed[.]” But the Court’s Order Staying Discovery and Conference ,
entered upon Plaintiffs’ Motion to Remand  pursuant to Local Rule 16(b)(1)(B),
explicitly stayed only the attorney conference and disclosure requirements pending the
Court’s ruling on remand. Nothing in the Court’s Order  or Rule 16(b)(1)(B) suggests
dispositive motion practice would be stayed. In any event, the Court did not grant
Defendants’ motions ;  as unopposed—it considered the legal sufficiency of Plaintiffs’
Complaint and found it lacking.
for malicious prosecution, civil conspiracy, and abuse of process. The Court will not
reiterate all the factual allegations leading to this action here but will instead
provide a brief synopsis and incorporate by reference the factual and procedural
history as stated in its Order .
The Parties have been litigating about MSS’s access to its land in Warren
County, Mississippi for nearly six years. MSS bought the land in 2014 while its
previous owner was engaged in litigation with Plaintiffs, who are adjoining
landowners, to declare an easement over Plaintiffs’ property. The previous owner
dismissed his action without ever obtaining his easement, and Plaintiffs later
obtained a declaratory judgment from the Chancery Court of Warren County that
no one maintained an easement. MSS appealed and lost.
Plaintiffs allege, however, that MSS—at Kenneth Rector (MSS’s attorney)
and Chicago Title’s direction—ignored the previous ruling and allowed contractors
to haul tractor-trailers across their property. They therefore sued MSS for trespass
in the Chancery Court of Warren County, Mississippi, and obtained judgment in
their favor. MSS appealed and lost again.
While Plaintiffs did not name Rector or Chicago Title as defendants in their
trespass action, they allege “after being served with the trespass action, Defendants
conspired” together to file a “malicious Complaint” to Condemn Private Right of
Way against Plaintiffs in the County Court of Warren County, Mississippi. [1-1],
¶ 16. Plaintiffs obtained a directed verdict; MSS appealed; and the Mississippi
Supreme Court affirmed. That Defendants allegedly conspired to “deprive Plaintiffs
of their property rights” and acted unlawfully in initiating the action to Condemn
Private Right of Way form the basis of this lawsuit. Id., ¶ 19. Plaintiffs allege
Defendants’ conduct constituted malicious prosecution, civil conspiracy, gross
negligence and negligence, malicious bad-faith insurance practices as to Chicago
Title only, and abuse of process.
Defendants removed this action on diversity grounds and then moved to
dismiss. ; . This Court granted Defendants’ motions on all counts and
dismissed Plaintiffs’ claims with prejudice on January 26, 2021. . Plaintiffs now
ask the Court to reconsider its rulings with respect to three of their claims.
The Court may evaluate “a motion asking the court to reconsider a prior
ruling” under either Rule 59(e) or Rule 60(b). Demahy v. Schwarz Pharma, Inc., 702
F.3d 177, 182 n.2 (5th Cir. 2012). “The rule under which the motion is considered is
based on when the motion is filed. If [it] is filed within twenty-eight days after the
entry of judgment, the motion is treated as though it was filed under Rule 59, and if
it [is] filed outside of that time, it is analyzed under Rule 60.” Id. Plaintiffs filed
their Motion to Amend  twenty-seven days after this Court entered Final
Judgment , so it is analyzed under Rule 59(e). Plaintiffs filed their Motion to Set
Aside Judgment  two months later, so it is analyzed under Rule 60(b).
A. Rule 59(e)
“A Rule 59(e) motion calls into question the correctness of a judgment.”
Templet v. Hydrochem, Inc., 367 F.3d 473, 478 (5th Cir. 2004). There are three
possible grounds for altering a judgment under Rule 59(e): “(1) an intervening
change in controlling law, (2) the availability of new evidence not previously
available, or (3) the need to correct a clear error of law or prevent manifest
injustice.” Williamson Pounders Architects, P.C. v. Tunica Cnty, 681 F. Supp. 2d
766, 767 (N.D. Miss. 2008).
Rule 59(e) motions are “not the proper vehicle for rehashing evidence, legal
theories, or arguments that could have been offered or raised before the entry of
judgment,” Templet, 367 F.3d at 478, and they “should not be used to . . . re-urge
matters” that a party has “already advanced.” Nationalist Movement v. Town of
Jena, 321 F.App’x 359, 364 (5th Cir. 2009). Rule 59(e) serves the “narrow purpose”
of permitting a party to “correct manifest errors of law or fact” or “present newly
discovered evidence.” Templet, 367 F.3d at 478. Reconsideration is “an
extraordinary remedy that should be used sparingly.” Nationalist Movement, 321
F.App’x at 364. Before filing a Rule 59(e) motion, parties are cautioned to “evaluate
whether what may seem to be a clear error of law is in fact simply a point of
disagreement” with the Court. Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625,
626 (S.D. Miss. 1990).
B. Rule 60(b)
Rule 60(b) is even “more stringent” than Rule 59(e). Hayes v. Jani-King
Franchising, Inc., No. 3:10-CV-382-CWR-LRA, 2012 WL 6738241, at *2 (S.D. Miss.
Dec. 28, 2012). It permits a court to relieve a party from a final judgment, order, or
proceeding for these reasons: “(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b); (3) fraud
(whether previously called intrinsic or extrinsic), misrepresentation, or misconduct
by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied,
released or discharged; it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable; or (6) any other reason
that justifies relief.” Fed. R. Civ. P. 60(b)(1)-(6).
“Several factors shape the framework of the court’s consideration of a 60(b)
motion: ‘(1) That final judgments should not lightly be disturbed; (2) that the Rule
60(b) motion is not to be used as a substitute for appeal; (3) that the rule should be
liberally construed in order to do substantial justice; (4) whether the motion was
made within a reasonable time; (5) whether – if the judgment was a default or a
dismissal in which there was no consideration of the merits – the interest in
deciding cases on the merits outweighs, in the particular case, the interest in the
finality of judgments, and there is merit in the movant’s claim or defense; (6)
whether there are any intervening equities that would make it inequitable to grant
relief; and (7) any other factors relevant to the justice of the judgment under
attack.’” Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 356 (5th Cir.
1993) (quoting Seven Elves v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981)); see also
Crutcher v. Aetna Life Ins. Co., 746 F.2d 1076, 1082 (5th Cir. 1984).
Plaintiffs ask the Court to revisit its ruling with respect to three of their
claims. First, Plaintiffs contend both their malicious prosecution and civil
conspiracy claims “should have been dismissed without prejudice,” and request
reconsideration of those two claims under Rule 59(e). See  at 5 (emphasis in
original). Second, about three months after this Court dismissed Plaintiffs’ abuse of
process claim, the Mississippi Supreme Court clarified the applicable statute of
limitations is three years—not the one-year statute of limitations that this Court
applied.  at 2 (citing Geico Casualty Co. et al., v. Stapleton, No. 2019-IA-00478SCT). Plaintiffs therefore request reconsideration of their abuse of process claim
under Rule 60(b). The Court will consider each in turn.
A. Malicious Prosecution
Plaintiffs contend the Court erred in dismissing their malicious prosecution
claim with prejudice. To state a claim for malicious prosecution, Plaintiffs needed to
plead facts showing Defendants acted with “malice in instituting the proceedings.”
Allred v. Moore & Peterson, 117 F.3d 278, 283 (5th Cir. 1997) (citing Mississippi Rd.
Supply Co. v. Zurich– Am. Ins. Co., 501 So.2d 412, 414 (Miss. 1987)). This Court
held Plaintiffs failed to do so and dismissed their claim with prejudice.
Plaintiffs respond by reminding the Court that their claim rests on the
allegation that Defendants “intentionally, maliciously and willfully maintained the
[Condemnation] action knowing [they] would not and could not meet [their] burden
of proof”—under the mistaken belief that this Court must “accept [this] allegation . .
. as true” and “must conclude” Defendants acted “intentionally and maliciously” on
that basis.  at 7-8 (emphasis in original).
Plaintiffs are incorrect. This Court must accept as true all allegations in the
Complaint, except for those allegations that are mere legal conclusions. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Under this standard, a claim is not
facially plausible without “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“Conclusory allegations or legal conclusions masquerading as factual conclusions
will not prevent a motion to dismiss.” Taylor v. Books A Million, 296 F.3d 376, 378
(5th Cir. 2002).
Newberry v. Champion, No. 3:16-CV-143-DMB-RP, 2018 WL 1189398 (N.D.
Miss. Mar. 7, 2018), is instructive on which type of allegations cannot state a claim
for malicious prosecution. There, the Court explained:
Newberry alleges that the defendants “acted recklessly and with malice
in instituting the proceedings without probable cause.” . . . [I]n his
amended complaint, Newberry alleges malice in a conclusory fashion
without any factual allegations. Such conclusory allegations cannot
survive a motion to dismiss. See Turner v. Lieutenant Driver, 848 F.3d
678, 685 (5th Cir. 2017) (“Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.”).
Id. at *5 (emphasis supplied). Like this Court, the Newberry Court dismissed the
malicious prosecution claim with prejudice. Id.; see also Seibert v. Travelers Cas. &
Sur. Co. of Am., No. 1:14-CV-188-KS-MTP, 2018 WL 2770659, at *5 (S.D. Miss.
Mar. 29, 2018) (dismissing with prejudice plaintiff’s bad faith claim for failure to
plead sufficient facts to satisfy the malice element, holding, “Plaintiff has not
alleged any actions by Defendant which rise to the level of malice or gross
negligence in disregard of her rights. Instead, her pleading is rife with conclusory
allegations without supporting specific factual allegations.”). 2 This Court correctly
determined Plaintiffs’ conclusory allegation of malice could not survive Rule 12(b)(6)
And the Court’s decision to dismiss with prejudice, rather than allow
Plaintiffs the chance to “choose to refile their legal claims,” was not in error.  at
9. Because the district court is “best situated to determine when plaintiffs have had
sufficient opportunity to state their best case,” the Fifth Circuit reviews its “decision
to grant a motion to dismiss with or without prejudice only for abuse of discretion.”
Alsenz v. Aurora Bank, FSB, 641 F. App’x 359, 363 (5th Cir. 2016) (citing Club
Retro, L.L.C. v. Hilton, 568 F.3d 181, 215 n. 34 (5th Cir. 2009)). Along that line,
when a party “gives no indication that he did not plead his best case in his
complaint,” but “consistently ‘declares the adequacy of his complaint . . . even after
he was on notice it might not be sufficient to state a cause of action,’” and “fail[s] to
explain what facts he would have added or how he could have overcome the
Plaintiffs say this Court further erred in its “legal reasoning” by relying on Gatheright v.
Barbour, No. 3:16-CV-00003-GHD-RP, 2017 WL 507603, at *9 (N.D. Miss. Feb. 6, 2017),
aff'd, 706 F.App’x 193 (5th Cir. 2017), to dismiss their malicious prosecution claim—
claiming Gatheright “did not involve malicious prosecution” at all and “the factual
arguments are of no similar comparison to those alleged in the case at bar.”  at 9.
Parties are cautioned to conduct a careful review of case law prior to submitting their
briefing. Even a cursory glance over Gatheright reveals the plaintiff, like Plaintiffs here,
alleged “malicious prosecution” and “abuse of process.” Id. And in its analysis dismissing
plaintiff’s malicious prosecution claim, the Gatheright Court, like this Court, concluded,
“any claims . . . for malicious prosecution and malice in law fail on their merits, because
Plaintiff has not alleged facts demonstrating that any of the Defendants in this case acted
with malicious conduct or intentionally wrongfully against him, without just cause or
excuse.” Id. at *10.
deficiencies . . . if he had been granted an opportunity to amend,” the district court
properly dismisses with prejudice. Id. (quoting Brewster v. Dretke, 587 F.3d 764,
768 (5th Cir. 2009), Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986)).
That is exactly what happened here. Plaintiffs never amended their
Complaint as a matter of right; never asked for leave to amend even after both
Defendants moved to dismiss (and in fact, as stated above, did not respond to either
motion at all); and, even now, do not specify how they would amend their Complaint
if given the opportunity to overcome a without-prejudice dismissal. They have not
expressly stated a single fact they would add or sought to show how additional facts
could remedy the deficiencies that both Defendants and this Court have identified.
Instead, Plaintiffs repeatedly declare their original Complaint is adequate. See 
at 8 (“Plaintiffs alleged they intentionally and maliciously failed to undertake the
required legal action before engaging in actions of malicious prosecution. These
allegations alone require that the claims . . . should not have been dismissed with
prejudice.”). In so insisting, Plaintiffs themselves all but concede they have already
“state[d] their best case.” Club Retro, L.L.C., 568 F.3d at 215 n. 34.
Dismissing Plaintiffs’ malicious prosecution claim without prejudice would do
nothing but prolong the inevitable. This Court correctly dismissed it with prejudice.
B. Abuse of Process
Plaintiffs also ask the Court to set aside its dismissal of their abuse of process
claim under Rule 60(b) because, after this Court entered Final Judgment , the
Mississippi Supreme Court clarified that an abuse of process claim is subject to
Mississippi’s general three-year statute of limitations.  (citing GEICO Casualty
Co., et al. v. Stapleton, No. 2019-IA-00478-SCT). In its Order, this Court followed
Sullivan v. Boyd Tunica, Inc., No. 2:06CV016–B–A, 2007 WL 541619, *3 (N.D.Miss.
Feb. 16, 2007), applying a one-year statute of limitations to find Plaintiffs’ cause of
action accrued on September 20, 2017, and expired on September 20, 2018—a year
and 12 days before Plaintiffs filed their Complaint.  at 10.
Plaintiffs do not specify under which of Rule 60(b)’s six grounds they seek
relief. They broadly state, “there are grounds to set aside the Court’s Order under
Rule 60(b)(1), (2), (3), (4), (5), and (6),” but then argue only that the Mississippi
Supreme Court’s correction of the decisional law supports their relief.  at 2. The
Fifth Circuit has analyzed motions asserting a change in decisional law under the
catch-all clause of Rule 60(b)(6), which states that a court may “relieve a party . . .
from a final judgment . . . for . . . any other reason justifying relief from the
operation of the judgment.” See, e.g., Batts v. Tow-Motor Forklift Co., 66 F.3d 743,
747 (5th Cir. 1995).
Critically, the Fifth Circuit has “narrowly circumscribed” the availability of
Rule 60(b)(6) relief—granting it “only if extraordinary circumstances are present”
and holding the “general rule” is that “a change in decisional law will not ordinarily
warrant Rule 60(b)(6) relief.” Id. at 748 (citing Overbee v. Van Waters & Rogers,
765 F.2d 578, 580 (6th Cir. 1985) (“Numerous courts have held that the mere
showing of a change in the law is not enough to demonstrate such an extraordinary
situation when the judgment has become final.”)); see also Bailey v. Ryan
Stevedoring Co., 894 F.2d 157, 160 (5th Cir. 1990) (“A change in decisional law after
entry of judgment does not constitute exceptional circumstances and is not alone
grounds for relief from a final judgment.”) (citing cases).
Defendants argue, “Plaintiffs, who simply point to a change in decisional law
in support of their motion, cannot show ‘extraordinary circumstances’ are present.”
 at 4. Plaintiffs sought a 17-day extension of time to file their Reply  until
June 7, 2021, which the Court granted in part—extending Plaintiffs’ deadline until
May 27, 2021. See Text Only Order (5/20/21). Plaintiffs ignored the Court’s Order
and waited until June 7, 2021, the date they requested, to file their Reply . This
Court will not consider briefing filed eleven days late. Having made no timely
attempt to show “extraordinary circumstances” as the Rule requires, Plaintiffs fail
to convince the Court their case falls within the “narrow” availability of 60(b)(6)
Even assuming extraordinary circumstances exist, the Mississippi Supreme
Court’s clarification of decisional law on the statute of limitations does not save
Plaintiffs’ abuse of process claim from dismissal. To state a claim for abuse of
process, these elements must be present: “(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, 303 (Miss.
2005). In support of their claim, Plaintiffs allege because Defendants “brought their
Complaint to Condemn Private Right of Way . . . without having attempted to
negotiate the purchase of any easement from adjoining landowners,” they “made an
illegal, unwarranted, and unauthorized use of process.” [1-1], ¶ 45. They allege
Defendants “had an ulterior motive in bringing this claim in the manner it [sic] did
in an attempted [sic] violate these Plaintiffs’ property rights.” Id.
But Defendants correctly point out that where “an abuse of process claim is
based simply on the filing of a lawsuit,” as is the case here, “it cannot be said that
process of the court has been abused by accomplishing a result not commanded by it
or not lawfully obtainable under it.” Austin Firefighters Relief & Ret. Fund v.
Brown, 760 F. Supp. 2d 662, 676-77 (S.D. Miss. 2010). The mere institution of an
action—even when parties disagree over its factual or legal basis—is not itself an
illegal use of process. See Gatheright v. Clark, 680 F.App’x 297, 302 (5th Cir. 2017)
(“Where a claim is based solely on the filing of a suit, and not on any perversion of
the process once process issues, a claim for abuse of process will fail.”); Edmonds v.
Delta Democrat Publ’g Co., 93 So. 2d 171, 175 (Miss. 1957) (Where “the only process
involved was a simple summon to defend the suit,” a claim for abuse of process will
not lie. Rather, an illegal use of process occurs when a party seeks to “compel
[another] to give up possession to some thing or value, when such were not the legal
objects of the suit.”); see also Bracey v. City of Jackson, Mississippi, No. 3:16CV657DPJ-FKB, 2017 WL 1086117, at *2 (S.D. Miss. Mar. 20, 2017) (dismissing claim
with prejudice because it was “not based on any perversion of any process[;] rather,
it was based simply on the filing of the suit. . . . [T]he only process involved in this
case was the summons. There were no arrests made, and there was no seizure of
Plaintiffs’ Complaint fails to show Defendants were motivated by anything
but their desire to secure access over the subject property. While Plaintiffs view this
as an “attempt [to] violate [their] property rights,” it is not an illegal use of process.
[1-1], ¶ 45. Their “property rights” were themselves the “objects of the suit.”
Edmonds, 93 So. 3d at 175. Moreover, the misconduct Plaintiffs complain of in the
first place is Defendants’ failure to “negotiate the purchase of an easement from
adjoining landowners” before bringing their action to Condemn Private Right of
Way across Plaintiffs’ land. But only conduct that occurs after the action is
instituted supports a claim for abuse of process. See In re Johansen, No. 17-50738NPO, 2019 WL 2618066, at *4 (Bankr. S.D. Miss. June 26, 2019) (dismissing claim
because “the focus of the tort of abuse of process is on the improper use of process
after it has been issued.”) (citing Miles v. Paul Moak of Ridgeland, Inc., 113 So. 3d
580, 586-87 (Miss. Ct. App. 2012)). 3
This Court therefore finds that even if Plaintiffs’ abuse of process claim is
timely under the Mississippi Supreme Court’s revisited statute of limitations, it
fails on the merits. This Court properly dismissed their abuse of process claim.
C. Civil Conspiracy
Plaintiffs contend that because at least one of their other claims should have
survived dismissal, the derivative tort of civil conspiracy should be allowed to tag
along. But for the reasons stated above, the Court correctly dismissed Plaintiffs’
Defendants raised these arguments at the motion to dismiss stage and in response to
Plaintiffs’ Motion to Set Aside Judgment , and Plaintiffs failed to respond at either
malicious prosecution and abuse of process claims. Their derivative civil conspiracy
claim necessarily fails. See Homoki v. Conversion Servs., Inc., 717 F.3d 388, 402
(5th Cir. 2013) (liability for civil conspiracy “depends on participation in some
underlying tort for which the plaintiff seeks to hold at least one of the named
defendants liable.”); M St. Investments, Inc. v. Zurich Am. Ins. Co., No. 3:13-CV-878
DCB-MTP, 2014 WL 1326105, at *3 (S.D. Miss. Mar. 28, 2014) (when a plaintiff
fails to state a claim for the action underlying the alleged civil conspiracy, “the civil
conspiracy claim must also be dismissed.”). After reconsideration, this Court finds it
correctly dismissed Plaintiffs’ civil conspiracy claim.
The Court has considered all arguments. Those not addressed would not have
changed the outcome. For the reasons stated, Plaintiffs’ Motion to Amend  and
Motion to Set Aside Judgment  are DENIED. This case is dismissed with
SO ORDERED AND ADJUDGED this the 7th day of June, 2021.
s/ Kristi H. Johnson
UNITED STATES DISTRICT JUDGE
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