Southland Health Services, Inc. et al v. Bank Plus et al

Filing 52

ORDER dismissing 44 Motion to Strike ; granting 45 Motion to Dismiss; granting 46 Motion to Dismiss; granting 48 Motion to Dismiss. Signed by Honorable David C. Bramlette, III on 02/04/2013 (PL)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
SOUTHLAND HEALTH
SERVICES, INC., et al.

PLAINTIFFS

VERSUS

CIVIL ACTION NO. 5:12cv56-DCB-RHW

BANK PLUS, et al.

DEFENDANTS
ORDER

Before the Court are the Defendants’ Joint Motion to Strike
the Amended Complaint [docket no. 44], Defendant Bank Plus’s Motion
to Dismiss Plaintiffs’ First Amended Complaint [docket no. 45],
Defendant Sonny Burdine’s Motion to Dismiss First Amended Complaint
[docket no. 46], and the remaining Defendants’ Motion to Dismiss
First Amended Complaint [docket no. 48]. Therein, the Defendants
argue, inter alia, that dismissal of the Plaintiffs’ case is proper
pursuant to Rule 12(b)(6). The Plaintiffs have not responded to
these Motions.
On December 20, 2012, the Court issued a Show Cause Order
providing the Plaintiffs extra time to respond to the Defendants’
motions. In that Order, the Court warned “that it intends to rule
on the pending Motions shortly and/or dismiss this case with
prejudice for lack of prosecution if they do not obtain counsel.”
Of particular concern to the Court was that the Plaintiffs, which
are

mostly

corporations,

are

listed

on

the

docket

sheet

as

proceeding “pro se”, but as corporations they are not allowed to
proceed pro se. E.g., Memon v. Allied Domecq QSR, 385 F.3d 871, 873

(5th Cir. 2004). Despite the Court’s warning, the Plaintiffs have
failed to

respond

to

this

Order,

either

directly

or

through

counsel, and thus have only confirmed the Court’s suspicion that
they have abandoned their case.
Shortly after the case was transferred to this Court from the
Eastern

District

of

Tennessee,

the

Plaintiffs’

attorney

was

instructed twice by Magistrate Judge Walker to file a motion to
appear pro hac vice if he is to represent the Plaintiffs. Instead,
he filed the Amended Complaint, without permission to do so, and
that same day withdrew from the case. Since then, the Plaintiffs
have had over six months to obtain new counsel and respond to the
Defendants’ Motions but have not done so. In addition, they failed
to respond to the Show Cause Order, which gave them over thirty
days to respond. For these reasons, the Court has the discretionary
authority

to

dismiss

the

Plaintiffs’

claims

for

failure

to

prosecute certainly without prejudice and perhaps with prejudice.
See, e.g., Lewis v. Sheriff’s Dept. Bossier Parish, 478 Fed. App’x
809, 816 (5th Cir. 2012); Fed. R. Civ. P. 41(b).
However, the Court finds that the Defendants are entitled to
an adjudication of the case on the merits. The Defendants have
defended the case, filed their Motions, and put forth a persuasive
argument that the Plaintiffs have no claim against them. These
efforts should not be nullified because of the Plaintiffs’ failure
to respond. The Court has given the Plaintiffs’ ample opportunity

2

to address the Defendants’ Motions.
Having

read

the

three

Motions

separately

filed

by

the

Defendants, the Court agrees that, even if the facts in the Amended
Complaint are taken as true, each of the Plaintiffs’ causes of
action are time-barred because all the events that form the basis
for their causes of action occurred in 2008 or earlier, more than
three years before the Plaintiffs filed the Complaint. See Miss.
Code Ann. § 15-1-49 (barring the negligence claim); Miss. Code Ann.
§ 75-3-118(g) (barring the conversion claim); CitiFinancial Mortg.
Co., Inc. v. Washington, 967 So. 2d 16, 19 (Miss. 2007) (barring
the breach of fiduciary duty and breach of contract claims); Carter
v. Citigroup Inc., 938 So. 2d 809, 817 (Miss. 2006) (barring the
civil conspiracy claim).
The Court has considered whether the applicable statutes of
limitations could be tolled by some fact alleged in the Amended
Complaint. Am. Compl. ¶ 72. But the Court agrees with Defendant
Bank Plus that the Amended Complaint indicates that Plaintiff Lunan
learned of the Defendants’ alleged embezzlement in late 2008, if
not earlier. Am. Compl. ¶ 46. Thus, the Plaintiffs’ causes of
action would have begun to accrue at that time. See Bullard v.
Guardian Life Ins. Co. of Am., 941 So. 2d 812, 815 (Miss. 2006)
(stating that a cause of action accrues when a plaintiff learns of
the breach and suffers damage). Because the Plaintiffs have not
disputed

the

Defendants’

statute

3

of

limitations

arguments,

particularly

because

they

have

not

shown

how

the

applicable

statutes of limitations could be tolled to save their claims, each
of the Plaintiffs’ claims must be dismissed with prejudice because
they are time-barred.
Accordingly,
IT IS HEREBY ORDERED THAT Defendant Bank Plus’s Motion to
Dismiss Plaintiffs’ First Amended Complaint [docket no. 45],
Defendant Sonny Burdine’s Motion to Dismiss Plaintiffs’ First
Amended

Complaint

[docket

no.

46],

and

the

remaining

Defendants’ Motion to Dismiss the First Amended Complaint
[docket no. 48] are GRANTED. The Defendants’ Joint Motion to
Strike the Amended Complaint [docket no. 44] will be DISMISSED
AS MOOT. A separate document will issue forthwith dismissing
the Plaintiffs’ claims against the Defendants with prejudice
because the claims are time-barred.
So ORDERED, this the 4th day of February, 2013.1

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

1

Once again, because there is no attorney of record for the
Plaintiffs, and because the docket sheet indicates that none of the
“pro se” Plaintiffs are designated to be noticed, the Court has
mailed a copy of this Order to Southland, Paladin, and Larry Lunan
at Southland’s principal place of business as provided in the
Amended Complaint [docket no. 38 ¶ 4, 5, 6.]—the only address
provided to the Court by the Plaintiffs. The final judgment will
also be mailed to this address.
4