Higgins v. Honea et al
Filing
20
ORDER granting 13 Motion to Dismiss; granting 14 Motion to Dismiss Signed by Honorable David C. Bramlette, III on 11/15/2016 (EB)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
PATRICK HIGGINS
PLAINTIFF
v.
CAUSE NO. 5:16-cv-26-DCB-JCG
GARY L. HONEA, DAVID MARTIN, AND
MARTHA SUE MARTIN A/K/A SUE MARTIN
DEFENDANTS
OPINION AND ORDER
This cause is before the Court on defendant Gary L. Honea
(“Honea”)’s Motion to Dismiss (docket entry 14) and defendants
David Martin and Sue Martin (“the Martins”)’s Answer, Defenses, and
Motion to Dismiss (docket entry 13). Having considered the motions
and applicable statutory and case law, and being otherwise fully
informed in the premises, the Court finds as follows:
I. Facts and Procedural History
This case arises out of a judgment debtor’s alleged attempt at
escaping an unsatisfied judgment. In January 2000, this Court
awarded
Patrick
Higgins
(“Higgins”)
a
default
judgment
(“the
Judgment”) against Sue Martin in the amount of $175,575.00. Compl.
¶¶ 5-13.
Higgins enrolled the Judgment in the judgment rolls of
Pike County, Mississippi on November 3, 2000. Id. at ¶ 15.
It
appears that the judgment was neither satisfied, nor re-enrolled
after its initial enrollment in 2000.
On December 14, 2015, a warranty deed (“the Deed”) conveying
two acres from “David Martin and Sue Martin” to “David Martin” was
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filed in the land records of the Chancery Clerk of Pike County. Id.
at Ex.1. Honea, a Mississippi licensed attorney, drafted the Deed.
Compl. ¶ 16.
On March 29, 2016, Higgins filed his pro se Complaint with
this Court against Honea and the Martins, alleging that all three
defendants conspired to transfer the property from Sue Martin in
order to hide assets and escape the Judgment. Id. at ¶ 20.
Higgins
further alleges that Honea purposefully failed to conduct a title
search prior to drafting the Deed, and that, as an attorney, his
obligation was to counsel the Martins against disposing of their
property.
Id. at ¶¶ 20, 21.
Defendants now move for dismissal pursuant to Federal Rules of
Civil Procedure 12(b)(5) and 12(b)(6).
II. The Martins’ Rule 12(b)(5) Motion
The Martins filed their Answer, Defenses, and Motion to
Dismiss pro se, contending that Higgins failed to timely serve the
defendants in accordance with Rule 4.
The Martins submit that
service was insufficient because they were not served within ninety
days after the filing of the Complaint, which occurred on March 29,
2016.
In response, Higgins argues that the Complaint was not
officially filed with the Court until his Motion to Proceed In
Forma Pauperis was granted on April 21, 2016; thus, service on July
6, 2016 was timely.
Neither Higgins nor the Martins have provided
this Court with any legal authority in support of their arguments
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as required by the Local Rules. See L.U. Civ. R. 7(b)(4)(2016).
Nevertheless, the Court finds that based on the record before it,
service upon the defendants was timely.
Rule 4 requires a plaintiff to serve defendants with a copy of
the summons and complaint within ninety days of filing suit. Fed.
R. Civ. P. 4(m).
The time limit for service under the Rule is
tolled while a motion to proceed in forma pauperis is pending
before the court. Ellis v. Principi, 223 F.R.D. 446, 448 (S.D.
Miss. 2004).
Higgins filed his initial Complaint and Motion to
Proceed In Forma Pauperis on March 29, 2016.
The Court denied
Higgins’s motion without prejudice on April 4, 2016.
On April 18,
2016, Higgins re-filed his in forma pauperis motion, and the Court
granted that motion on April 21, 2016.
with process on July 6, 2016.
The Martins were served
Because the time limit for service
was tolled while the Court considered Higgins’s in forma pauperis
motions, the Court finds that service of process was timely under
the Rules and declines to dismiss on the basis of Rule 12(b)(5).
III. Rule 12(b)(6) Motions
A. Standard of Review
When ruling on a motion to dismiss pursuant to Rule 12(b)(6),
the district court “accepts all well-pleaded facts as true, viewing
them in the light most favorable to the plaintiff.” In re Katrina
Canal Breaches Litig., 495 F.3d 191, 204 (5th Cir. 2007). To
survive a defendant’s Rule 12(b)(6) motion, the plaintiff must
3
plead “enough facts to state a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007).
Despite the relaxed pleading standard under the Federal
Rules, the Court will “not accept as true conclusory allegations,
unwarranted factual inferences, or legal conclusions.” Arias-Benn
v. State Farm Fire & Cas. Ins. Co., 495 F.3d 228, 230 (5th Cir.
2007).
Plaintiff’s factual allegations “must be enough to raise a
right of relief above the speculative level, on the assumption that
all of the allegations in the complaint are true (even if doubtful
in fact).” Twombly, 550 U.S. at 555.
B. Discussion
In their Answer, Defenses, and Motion to Dismiss, the Martins
summarily assert that Higgins’s Complaint should be dismissed for
failure to state a claim.
Honea also moves for dismissal pursuant
to Rule 12(b)(6) in a separate motion.
Although the Martins have
failed to provide any memorandum in support of their motion, the
Court finds that the arguments advanced by Honea are instructive as
to Plaintiff’s claims against all defendants.
In his motion, Honea maintains that dismissal is proper
because Higgins is unable to prove damages, which is an essential
element to any claim for civil conspiracy.
Honea argues that
because Higgins failed to re-enroll the underlying Judgment after
the year 2000, the Judgment and lien expired years before the Deed
was filed.
Alternatively, Defendant posits that if the Judgment
4
lien
is
still
enforceable,
Higgins’s
right
to
levy
remains
unimpaired.
Higgins failed to respond to Honea’s motion as required by the
Local Rules of this Court, and his Response to the Martins’ motion
is void of any discussion as to Rule 12(b)(6). See L.U. Civ. R.
7(b)(4)(2016) (“Counsel for respondent must, within fourteen days
after service of movant’s motion and memorandum brief, file a
response and memorandum brief in support of the response.”).
Although the Court will extend leniency to plaintiffs bringing suit
pro se, “we do expect litigants to meet court deadlines and observe
the rules of civil procedure.” Jones v. FJC Sec. Services, Inc.,
612 Fed. App’x 201, 203 (5th Cir. 2015); see Lee v. State Atty.
Gen, 2006 WL 1674305, *1 (S.D. Miss. 2006)(granting defendant’s
motion to dismiss where pro se plaintiff completely failed to
respond to the pleadings).
Notwithstanding Plaintiff’s failure to respond, however, the
Court finds that dismissal is warranted on the merits.
Under
Mississippi law, a conspiracy is “a combination of persons for the
purpose of accomplishing an unlawful purpose unlawfully.” Gallagher
Bassett Services, Inc. v. Jeffcoat, 887 So.2d 777, 786 (Miss.
2004)(quoting Levens v. Campbell, 733 So.2d 753, 761 (Miss. 1999)).
To succeed on a claim of civil conspiracy, plaintiffs must show:
“(1) the existence of a conspiracy; (2) an overt act in furtherance
of that conspiracy; and (3) damages arising therefrom.” Wells v.
5
Shelter General Ins. Co., 217 F.Supp.2d 744, 753 (S.D. Miss. 2002).
Considering Higgins’s allegations in light of these elements, the
Court finds that the Complaint fails to state a plausible claim for
relief.
The facts and dates alleged in Plaintiff’s Complaint suggest
that the Judgment against Ms. Martin expired years before the Deed
was executed.
A private civil judgment expires in accordance with
the time limits set by the state in which the district court is
situated.
Andrews v. Roadway Exp. Inc., 473 F.3d 565, 568 (5th
Cir. 2006); Fed. R. Civ. P. 69(a)(1).
In Mississippi, judgment
liens rendered in courts of the state expire seven years from the
date of rendition or renewal, while foreign judgments expire after
three years. See Miss. Code Ann. §§ 15-1-43, 15-1-45, 15-1-47.
Honea argues that the Judgment is “foreign” for purposes of
Mississippi law because it was rendered in federal court; but
whether the Judgment is subject to an expiration date of three or
seven years is of no moment.
The Deed was filed approximately
fifteen years after Higgins enrolled his Judgment in Pike County,
which is well beyond the time set by both statutory limitations
periods.
From the Complaint, there is no indication that Higgins
attempted to renew the Judgment after its initial enrollment.
If
Higgins took no further steps to enforce or preserve his Judgment
after the year 2000, then the Judgment lien, and Higgins rights
associated therewith, expired long before the alleged conspiracy
occurred.
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Regardless of whether the Judgment lien expired prior to the
Deed’s
execution,
however,
Mississippi
Code
Section
11-7-191
provides in relevant part:
A judgment [properly] enrolled shall be a lien upon and
bind all the property of the defendant within the county
where so enrolled, from the rendition thereof, and shall
have priority according to the order of such enrollment,
in favor of the judgment creditor, his representatives or
assigns, against the judgment debtor and all persons
claiming the property under him after the rendition of
the judgment.
Miss. Code Ann. § 11-7-191 (emphasis added).
The Mississippi
Supreme Court has further determined that “one who purchases
property on which there is an enrolled judgment lien holds it
subject to the right of the judgment creditor to have it seized
under a writ of execution for the satisfaction of the judgment.”
Motors Securities Co. v. B.M. Stevens Co., 83 So.2d 177, 179 (Miss.
1955). Assuming Higgins had a viable judgment lien upon the Martin
property prior to the execution of the Deed, the lien continues to
exist after the conveyance. Because transfer of ownership does not
extinguish a properly enrolled judgment lien, Higgins cannot prove
that his rights, if any, have been impaired by Defendants’ alleged
conduct.
Accepting all allegations in the Complaint as true, the Court
finds that Higgins has failed to state any plausible claim for
relief.
Thus, all claims are dismissed with prejudice.
Accordingly,
IT IS HEREBY ORDERED that defendant Honea’s Motion to Dismiss
7
[docket entry 14] is GRANTED.
IT IS HEREBY ORDERED that the Martins’ Motion to Dismiss
[docket entry 13] is GRANTED.
A Final Judgment dismissing this cause with prejudice shall be
entered of even date herewith.
SO ORDERED, this the 15th day of November, 2016.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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