Issaquena and Warren Counties Land Company, LLC et al v. Warren County, Mississippi Board of Supervisors et al
ORDER denying without prejudice 352 Motion ; granting in part and denying in part 364 Motion for Reconsideration ; denying 383 Motion to Review of Magistrate Judge Order; granting in part and denying in part 397 Motion to Review of Magistrate Judge Order; denying 399 Motion for Protective Order; granting 404 Motion for Protective Order; granting 423 Motion to Amend/Correct; denying 438 Motion to Compel; denying 439 Motion to Compel; denying 440 Motion to Compel; denying 441 Motion to Compel; denying 442 Motion to Compel; denying 443 Motion to Compel; denying 444 Motion to Compel; denying 445 Motion to Compel; denying 446 Motion to Compel; finding as moot 468 Motion to Strike ; granting 493 Motion to Amend/Correct; granting 534 Motion to Amend/Correct; denying 230 Motion to Compel Signed by Honorable David C. Bramlette, III on 12/7/2011 (dtj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
ISSAQUENA AND WARREN COUNTIES
LAND COMPANY, LLC.,ET AL
CIVIL ACTION NO. 5:07-cv-106-DCB-JMR
WARREN COUNTY , MISSISSIPPI
BOARD OF SUPERVISORS, et al
This matter is before the Court upon Motions of Defendants, Warren County, Mississippi
Board of Supervisors, David Mc Donald, William Banks, Jr, Charles Selmon, Carl Flanders, Richard
George, W. Richard Johnson, Paul Winfield (hereinafter referred to as the “Warren County
Defendants”) and Paw Paw Island Land Co., Inc. to Disqualify Counsel for the Plaintiffs ; to
Supplement and Amend Pleadings [493, 534]; Motion for Leave to Amend Answer ; for
Reconsideration of Order of Miscellaneous Relief ; for Review of Magistrate Judge Order ;
for Review of Magistrate Judge’s Text Order ; Second Motion for Protective Order ; and
to Strike Motion  to Compel ; Motion for Protective Order ; Motion to Compel
Responses to Discovery ; and the Plaintiff’s Motions to Compel [ 438-446].
This action was filed by Plaintiffs on May 18, 2007. In their Complaint , Plaintiffs allege
that actions taken by the Defendants violated their rights under the Fourth, Fifth and Fourteenth
Amendments. Plaintiffs also assert a civil RICO claim, a civil conspiracy claim, abuse of process and
malicious prosecution against all Defendants. In Count 10, Plaintiffs allege Misuse of Public Funds
against Defendants McDonald, Banks, Selmon, Flanders, George and Johnson.
These allegations stem from a prior action filed in Chancery Court of Warren County,
Mississippi. In that action, Paw Paw Defendants in this case asserted ownership of a prescriptive
easement over a road, a parking area and a boat launch located on the property owned by Plaintiff
Issaquena and Warren County Land Company, LLC (“IWCLC”) and allegedly used by Paw Paw’s
predecessors in title. In that same action, the Warren County Defendants asserted that the same road
was a public road. On September 12, 2008, the Chancery Court determined that the Paw Paw
Defendants did not have a prescriptive easement and that the portion of the road on IWCLC property
was not public.
On September 15, 2009, this Court stayed this matter by Order  in deference to a
determination by the Mississippi Supreme Court on the appeals filed by Paw Paw and Warren County
Defendants. In a unanimous decision dated November 10, 2010, the Mississippi Supreme Court
affirmed the Chancellor’s findings. Paw Paw Island Land, Co. v. Issaquena & Warren Cntys. Land
Co., 917 So. 3d 916 (Miss. 2010), reh’g denied, Feb. 3, 2011.
A hearing was held on September 7, 2011 before Judges Bramlette and Roper, wherein the
parties were asked to present and argue their relative positions regarding pending discovery motion
and dispositive motions.
With regard to the non-dispositive pending motions, Warren County Defendants filed a
Motion  to Disqualify Counsel on June 9, 2009 which is joined by Defendant Joseph Strickland
June 10, 2009. At the hearing held September 7, 2011, Plaintiffs indicated that the attorney in
question, Mark D. Hebert, was not going to participate at trial rendering the Defendants’ Motion
 to Disqualify moot. As a result, the motion is denied without prejudice to be re-urged if
The Court finds Defendant Paw Paw Island Land Co.’s Motion  to Supplement or
Amend Pleadings and Second Motion  to Supplement or Amend Pleadings should be granted.
In its motion, the Defendant seeks to supplement or amend its pleadings to include two claims: (1)
a right to easement by necessity; or, in the alternative, (2) a right to private condemnation of a
permanent easement over a private road.
A supplemental pleading may bring in new claims when the subsequent allegations stem from
the original cause of action. When determining whether to allow supplementation under Rule 15(d),
a court must weigh several factors: (1) undue delay, bad faith or dilatory motive on part of the
movant; (2) undue prejudice to the opposing party; and (3) futility. See Chemetron Corp. V. Bus.
Funds, Inc., 682 F.2d 1149, 1194 (5th Cir. 1982), vacated on unrelated grounds by 460 U.S. 1007
The Court finds that the change in the Defendant’s position as a result of the events of the past
year- the final decision by the Mississippi Supreme Court, the expiration of the agreement between
the parties allowing access to the island, the Mississippi Supreme Court’s finding that the island is
land and water locked, and the recent purchase of additional land from Anderson Tulley Land Co.are sufficient to justify allowing the Defendant to supplement their pleadings. As these recent events
led to the accrual of this claim, there is no undue delay. Neither has any evidence been put before the
Court that this motion was the result of bad faith or a dilatory motive. As this matter is not currently
set for trial, the Plaintiffs are not prejudiced by the supplement. Last, and importantly, the Court finds
that the Defendant has made a sufficient showing that the claim is not futile to allow supplementation.
Accordingly, the Defendant’s Motion to Supplement Pleadings is granted. The Court notes
that this finding in no way precludes the Plaintiffs from asserting their claims regarding jurisdiction,
res judicata, statue of limitations, comity or any other issue through appropriate dispositive motions.
The Defendant is given seven (7) days from entry of this Order to file the Supplemental Pleading with
the Clerk of Court.
In Defendant Paw Paw Island Land Co.’s Motion  for Leave to Amend Answer, the
Defendant seeks to amend its Answer so as to assert an additional affirmative defense grounded in
the Noerr-Pennington doctrine and the First Amendment.
When seeking to amend pleadings after a scheduling order’s deadline to amend has expired,
a party must first meet Rule 16(b)’s good cause requirement before the Court may allow amendment
under the more liberal standards of Rule 15(a). Good cause showings are evaluated using four factors:
(1) the explanation for the failure to timely move for leave to amend; (2) the importance of the
amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a
continuance to cure such prejudice. Fahim v. Marriott Hotel Services, 551 F.3d 344, 348 (5th Cir.
2008). In making its determination on “good cause” this Court has “broad discretion to preserve the
integrity and purpose of the pretrial order.” Id. (citing Southwestern Bell Tel. Co. v. City of El Paso,
346 F.3d 541, 547 (5th Cir. 2003).
Having considered all these factors, the Court concludes that the Defendant has shown good
cause for allowing amendment of its Answer. The first factor does weigh in favor of the Plaintiffs;
though the Defendant does not admit the delay was due to oversight or delay, the explanation is not
a very strong one. Despite the Defendant’s weakness in the first factor, the remaining three weigh
distinctly in its favor. The Defendant’s proposed amendment is an important claim; it is an affirmative
defense grounded in First Amendment rights that could potentially dispose of the Plaintiff’s claims
against them. Any prejudice, if there be any at all, would be minimal. There has been extensive
discovery in this matter, and this particular defense is predicated upon the same facts as those
underlying Plaintiff’s claims: that some parties allegedly informed officials of another’s actions that
violated the law. As the case is not currently set for trial, the Plaintiffs will have ample time to prepare
for this defense. Last, because there is no trial date, there is no issue with a continuance.
As the Defendant has established good cause satisfying Rule 16(b), the Court will move on
to a Rule 15(a) analysis. Leave to amend under Rule 15(a) is usually granted liberally unless the
movant has acted in bad faith, if granting the motion would cause prejudice, or the amendment would
be futile. Jebaco, Inc. v. Harrah’s Operating Co., 587 F.3d 314, 322 (5th Cir. 2009). Courts may also
consider judicial efficiency and effective case management. Id. Here, there is no evidence of improper
motive by the Defendant. The Defendant has also made a sufficient showing of its defense to surpass
a bar of futility. The Court finds that no prejudice will befall the Plaintiffs upon granting leave to
amend. It is important to note, that even though the Defendant’s claim is not futile, Plaintiffs may
certainly respond to this defense again through proper motion,
Accordingly, Defendants Paw Paw Island Land Co.’s Motion for Leave to Amend Answer is
The next matter that comes before the Court is Plaintiffs’ Motion for Reconsideration of the
Order for Miscellaneous Relief  and the Motion for Review of Magistrate Judge Order  .
At the hearing, the Court found that these motions should be granted in part and denied in part.
Plaintiffs seek to have the Court reconsider its Order of June 9,2009 with regard to the Warren County
Defendants Motion to Permit for Entry on the Land  and Motion to Compel Entry on the Land
[ 310 ] .
On April 30,2009, the Warren County Defendants filed a Request to Permit Entry Upon the
Land pursuant to Rule 34(a)(2). The request was filed with the Court as a Motion  on April 30,
2009. Plaintiffs did not file an objection to the Motion  to Permit Entry on the Land or seek to
have the motion withdrawn. Thus, the Court granted this as unopposed motion pursuant to Rule
7.2(C)(2) of the Uniform Rules of this Court. Unbeknownst to the Court, Defendants received an
indication from the Plaintiffs that they objected to the request. Defendants filed a Motion  to
Compel on May 29,2009. The Court viewed the second request as repetitive and in a Text Order
granted the motion and found that the inspection must occur prior to July 3,2009. The Court finds that
the Defendants may inspect the portions of the property at issue in this suit for the purpose of
allowing experts to complete their reports and to allow Defendants to measure, survey and photograph
as necessary on or prior to January 16, 2012.
The Court finds that Defendant Warren County’s Second Motion for Protective Order 
and Motion for Review of Magistrate Judge TEXT ORDER  should be denied.
On May 13, 2009, Plaintiffs served notice of the 30 (b)(6) deposition of the Defendant Warren
County. . In response, Warren County filed a Motion for Protective Order . On June 9,
2009, the Court entered an Order allowing the 30 (B)(6) deposition to proceed. Defendant, Warren
County filed an Objection to the Order and Filed an Appeal of the Order. . On June 16, 2009,
Plaintiffs re-noticed the aforementioned deposition for Sunday, June 28,2009 at 9:00a.m. Defendant
filed a Second Motion for Protective Order with regard to the re-notice of the deposition.
Defendant alleges that Plaintiffs have already taken the depositions of three members of the
Warren County Board of Supervisors , the board attorney and the county prosecuting attorney.
Defendant asserts that the other two supervisors depositions are also noticed. Defendants submits that
the only people knowledgeable about the issues presented in the 30 (B)(6) deposition notice have
already been deposed so this deposition is cumulative of depositions already taken. The Court found
that Plaintiffs have a right to take the 30 (B)(6) deposition of the Defendant, Warren County even if
these individual’s depositions would be repetitive, their testimony was not in the same capacity with
regard to the 30(B)(6) deposition.
Defendant Paw Paw Island Land Co., Inc.’s Motion for Protective Order requests the Court to
prohibit the Plaintiffs from taking the deposition of R.E. Parker, Jr., counsel for the Defendant. [ 404].
Courts in the Fifth Circuit generally disfavor deposing opposing counsel. Theriot v. Parish of
Jefferson, 185 F.3d 477, 491 (5th Cir. 1999); Nat’l Union Fire Ins. Co. v. Blasio, 2007 WL 2406983
*2 (N.D. Miss. 2007). As a result, depositions of opposing counsel are permitted in only the most
limited of circumstances. Nguyen v. Excel Corp., 197 F.3d 200, 208-09 (5th Cir. 1999). Though this
Circuit has not formally adopted the Eighth Circuit’s Shelton guidelines for determining when
depositions of opposing counsel are appropriate, they are commonly used as a guideline in such an
analysis. See Id.; Theriot, 185 F.3d at 491; Nat’l Union Fire Ins. Co., 2007 WL *2. A Shelton analysis
examines three factors: (1) whether other means exist to obtain the information; (2) if the information
sought is relevant and non-privileged; and (3) if the information is crucial to the preparation of the
case. Nguyen, 197 F.3d at 208 (citing Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986). If
a party can satisfy all three factors, a deposition of the opposing counsel may be appropriate.
The Plaintiffs contend that “whether R.E. Parker instructed Defendant Winfield to pursue and
prosecute the Plaintiffs on criminal charges is central” to their claims. In order to gather evidence to
support this claim, the Plaintiffs seek to depose of R.E. Parker. Therefore this Court considers whether,
despite the expressed disfavor of deposing opposite counsel and limited situations in which it may be
granted, Plaintiffs should be permitted to depose R.E. Parker, counsel for Defendant.
The evidence sought is certainly relevant. However, there clearly are other means by which
Plaintiffs can gather information underlying their claim. The information sought, whether a
communication was made from party to another, is inherently not limited to one person or party. To
this date, Plaintiffs have deposed Defendant Winfield, the party alleged to have received the influential
instruction of R.E. Parker. In addition, Plaintiffs have deposed the county prosecuting attorney Richard
Johnson and three co-defendant members of the Warren County Board of Supervisors, David
McDonald, Richard George, and Carl Flanders. Plaintiffs have been free to seek information with
regard to this claim from other defendants and parties, including Co-Defendant members of the Board
of Supervisors as well as other county and board officials, under methods available in the Federal
Rules of Civil Procedure.
As this information is available through other means, this Court does not find that information
from R.E. Parker is crucial to the preparation of the case. Certainly, it would aid in preparation and
would benefit the Plaintiffs’ case, but there is no evidence that the information sought is crucial to
preparation of the case. Additionally, the Plaintiffs stake their right to dispose opposing counsel on the
mere fact that R.E. Parker is an important part of their allegations and is a potential witness in this
case. Plaintiffs have provided nothing but these conclusory assertions that they are entitled to depose
opposing counsel, a practice the Fifth Circuit disfavors. Thus, the Court finds the Motion for Protective
Order is granted.
As to the Motion to Compel Responses to Discovery filed by Defendants Warren County,
Warren county, Mississippi Board of Supervisors, Winfield, McDonald, Banks, Selmon, Flanders,
George and Jonson, the Court finds that the Motion should be denied. Issues of discovery “are
entrusted to the sound discretion” of the lower courts. See Sirls v. Poppell, 212 F.3d 596 (5th Cir.
2000)(citing Richardson v. Henry, 902 F.2d 414, 417 (5th Cir. 1990)). Local Rule 7.2(B)(2), applicable
at the time Defendants filed the motion at hand, dictates that “discovery motions must be filed
sufficiently in advance of the discovery deadline so as to not affect the deadline.” Furthermore, Rule
26.1(B)(2) states that “counsel must initiate discovery requests . . . sufficiently in advance of the
discovery cut-off date . . .” The Warren County Defendants served their First Consolidated Discovery
Requests on April 9, 2008. Plaintiffs’ Response to First Consolidated Discovery Requests Propounded
by Warren County were served on June 2, 2008. On October 22, 2008, counsel for the Warren County
Defendants sent to counsel for Plaintiffs a letter and a Proposed Motion to Compel Responses to
Discovery. In response to that letter, counsel for Plaintiffs stated an intention to supplement Plaintiffs’
discovery responses; Plaintiffs served the supplemental responses on February 5, 2009. This motion
to compel was not filed until April 24, 2009, near the end of the discovery deadline. With these rules
as a guide, the Court, in its discretion, finds that Defendants’ motion to compel was not filed
sufficiently in advance to allow adequate response, rebuttal, careful disposition by this Court and
action thereon before the June 1, 2009 deadline. Accordingly, Defendants’ Motion to Compel
Responses to Discovery is denied.
The last matter comes before the court on Plaintiff’s Motions [438-446] to Compel filed July
14, 2011 and Defendants’ Motion  to Strike Plaintiffs’ Motions to Compel. The Court finds that
Plaintiffs motions should be denied as untimely thereby rendering the Defendants’ motion moot. The
Court once more notes that issues of discovery “are entrusted to the sound discretion” of the lower
courts. Sirls, 212 F.3d at 596. Local Rule 7(b)(2)(B) states, “A party must file a discovery motion
sufficiently in advance of the discovery deadline to allow response to the motion, ruling by the court
and time to effectuate the court’s order before the discovery deadline.”
Though the discovery deadline was extended by text only order dated June 9, 2009, it was
extended only for the purpose to allow for depositions set prior to the discovery deadline and of any
expert designated before June 15, 2009. As the discovery deadline expired June 1, 2009, the Court
finds these Motions to Compel filed July 14, 2009 should be denied as untimely. See Applewhite v.
United States, 2008 WL 4539625 *2 (S.D. Miss. 2008). Accordingly, Defendants’ Motion  to
Strike is moot. It is therefore,
ORDERED that the Motion  to Disqualify is denied without prejudice. It is further,
ORDERED that the Motion  to Supplement or Amend Pleadings and Second Motion
 to Supplement and Amend pleadings is granted. The Defendant Paw Paw Land Co., Inc. shall
file its supplemental pleading within seven (7) days of entry of this Order with the Clerk of Court. It
ORDERED that the Motion  for Leave to Amend Answer is granted. It is further,
ORDERED that the Motion  for Reconsideration of the Order for Miscellaneous
Relief and Motion  for Review of Magistrate Order are granted in part and denied in part. The
Court finds that the Defendants may inspect portions of the property at issue in this suit for the
purpose of allowing experts to complete their reports and allow Defendants to measure, survey and
photograph as necessary on or prior to January 16, 2012. It is further,
ORDERED that the Second Motion  for Protective Order and Motion  for
Review of Magistrate Judge TEXT ORDER are denied. It is further,
ORDERED that the Motion  for Protective Order is granted. It is further,
ORDERED that the Motion  to Compel Responses to Discovery is denied. It is
ORDERED that the Motions [438, 39, 40, 41, 42, 43, 44, 45, 46] to Compel are denied and
the Motion  to Strike is moot.
SO ORDERED this the 7th
day of December, 2011.
s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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