Ross et al v. Quality Homes of McComb, Inc. et al

Filing 48

ORDER dismissing this action with prejudice as to Defendants Joey Harbin and U.S. Bank, N.A. Signed by Honorable David C. Bramlette, III on January 11, 2018 (JBR)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
EARL ROSS and MAXCINE ROSS

PLAINTIFFS

V.

CAUSE NO. 5:17-CV-46-DCB-MTP

QUALITY HOMES OF McCOMB, INC.,
MISS LOU MOBILE HOME MOVERS, LLC,
PLATINUM HOMES, LLC, JOEY HARBIN,
and U.S. BANK, N.A.

DEFENDANTS

ORDER AND OPINION
This cause is before the Court on the Court’s Order [Doc. 41]
that Plaintiffs Earl and Maxcine Ross show cause why the remaining
counts of their Complaint should not be dismissed with prejudice.
Having considered the Rosses’ response to the Court’s Order, U.S.
Bank, N.A.’s opposition1 to the Rosses’ response, and applicable
statutory and case law, and being otherwise fully informed in the
premises, the Court finds as follows:
I.

BACKGROUND

Buyers of a manufactured home sued an employee of the home’s
manufacturer

and

the

bank

that

financed

the

purchase

after

inspecting the home and declaring it “uninhabitable.” The Court
dismissed

with

prejudice

the

portions

of

the

Complaint

that

advanced legal theories that could not impose liability on these
Defendants under any conceivable interpretation of the facts as

Defendant Joey Harbin did not file a response in opposition to the
Rosses’ response to the Court’s Order.
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pleaded. As to the other portions, the Court ruled that the buyers
had not properly pleaded any claims, but offered them the chance
to explain how the defects in their Complaint could be cured.
A.

The Rosses’ Manufactured Home Purchase
On October 17, 2014, Plaintiffs Earl and Maxcine Ross (the

“Rosses”) bought a manufactured home made by Platinum Homes, LLC
(“Platinum”) from Quality Homes of McComb, Inc. (“Quality”), a
McComb-based retail-seller. [Doc. No. 1, ¶VI]2 U.S. Bank, N.A.
(“U.S. Bank”) financed the purchase. [Doc. No. 1, ¶VI]
On

October

30,

2014,

the

mobile

home

was

delivered

to

Quality’s lot in McComb. [Doc. No. 1, ¶VIII] That same day, the
Rosses inspected the home and found it deficient: it contained “a
gap in the ceiling where the roof did not come together,” and
“sheetrock [that] had fallen from the wall in the living room.”
[Doc. No. 1, ¶IX] The inspection also revealed an unpleasant
chemical odor. [Doc. No. 1, ¶VIII]
B.

The Rosses Try to Exchange the Home and Rescind the Loan
Hoping to swap the home for another, the Rosses visited

Quality on November 15, 2014. [Doc. No. 1, ¶ XII] On the visit,

As a part of the purchase, the Rosses signed a “Platinum Homes, LLC.
Limited Warranty” containing a provision requiring the parties to mediate or
arbitrate. The Court found that the Rosses, Platinum, and Quality were
contractually obligated to resolve their dispute by arbitration. [Doc. No. 40]
The Court further found it unnecessary to stay the remainder of this suit
pending arbitration. [Doc. No. 40]
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2

the Rosses overheard a phone conversation during which Defendant
Harbin, a Platinum manager, said “I am not coming down there to
change

out

nothing

for

those

niggers.”

[Doc.

No.

1,

¶XII]

Ultimately, Quality refused to exchange the home for another. [Doc.
No. 1, ¶XIII]
Next, the Rosses called U.S. Bank hoping to rescind their
loan contract. [Doc. No. 1, ¶XV] In late December 2014, the Rosses
spoke with a U.S. Bank employee, explained the problems with the
home, and asked to rescind the contract. [Doc. No. 1, ¶XV] U.S.
Bank declined. [Doc. No. 1, ¶XV]
C.

The Rosses’ Suit
On April 20, 2017, the Rosses sued Harbin and U.S. Bank for

(1) breach of fiduciary duties; (2) breach of contract; (3) breach
of the implied covenant of good faith and fair dealing; (4)
fraudulent

misrepresentation;

(5)

“unconscionability”;

(6)

negligent misrepresentation; (7) violations of the Magnuson-Moss
Warranty Act (“MMWA”), 15 U.S.C. § 2301 et seq., the Truth in
Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., the Mississippi
Consumer Protection Act (“MCPA”), MISS. CODE ANN. § 75-24-5; (8)
slander; and (9) civil rights violations under 42 U.S.C. § 1983.
In response, Harbin and U.S. Bank moved to dismiss [Docs. 9,
27] the Complaint under Federal Rule of Civil Procedure 12(b)(6).

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The Court partially granted the motions, dismissing with prejudice
all counts except:


Count I – breach of contract;



Count II – breach of fiduciary duty;



Count III – breach of the covenant of good faith and
fair dealing;



Count IV – fraudulent misrepresentation;



Count VI – negligent misrepresentation; and



Count VII – MCPA violations.

At issue now is whether these counts too should be dismissed.
The Court accorded the Rosses the opportunity to explain why the
remaining counts should not be dismissed with prejudice [Doc. 41],
and twice granted the Rosses’ requests for additional time to file
such an explanation. [Docs. 43, 45]
The Rosses have not expressed a desire, whether by separate
pleading or memorandum brief, to amend their Complaint.
II. DISCUSSION
A.

Count I – Breach of Fiduciary Duty
The Court’s Order advised the Rosses that the Complaint failed

to allege a breach of fiduciary duty claim because it lacked the
factual allegations necessary to impose a fiduciary duty upon
either Harbin or U.S. Bank. [Doc. 41, p. 5]
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The Order also expressed concern that count I was not intended
to apply to Harbin and U.S. Bank. [Doc. 41, p. 5] Specifically,
the

Order

noted

that

count

I’s

allusion

to

the

“business

relationship . . . for the purchase of a manufactured mobile home,”
strongly suggested that it targeted only Platinum and Quality, the
only Defendants with which the Rosses could have had a “business
relationship.” [Doc. 41, p. 5]
The Rosses’ response does not address any of the concerns
raised in the Court’s Order. The Rosses recycle the argument,
applicable

only

to

U.S.

Bank,

that

the

mortgagee-mortgagor

relationship is fiduciary in nature —— an argument the Court
rejected in its Order. [Doc. 41, p. 5] Missing are any factual
allegations or legal arguments even beginning to suggest that the
Rosses could plead the facts necessary to impose a fiduciary duty
upon U.S. Bank or Harbin regarding the transactions at issue. See
Univ. Nursing Assocs., PLLC v. Phillips, 842 So. 2d 1270, 1275
(Miss. 2003) (en banc) (identifying the situations in which a
fiduciary duty may arise).
On count I, the Rosses fail to offer any facts or law showing
that the pleading defects detailed in the Court’s Order [Doc. 41,
pp. 4-5] can be cured by amendment. The Court therefore dismisses
count I with prejudice as to U.S. Bank and Harbin.

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B.

Count II – Breach of Contract
The Court’s Order advised the Rosses that the Complaint failed

to

allege

a

breach

of

contract

claim

because

it

lacked

any

allegation that either Plaintiff contracted with either Defendant
or that, even assuming a contractual relationship was properly
pleaded, either Defendant breached the contract. [Doc. 41, pp. 56]
In response, the Rosses appear to abandon any breach of
contract claim against U.S. Bank. And as to Harbin, the Rosses
attempt to substitute the pleaded breach of contract theory for a
tort

theory.

For

example,

the

Rosses

admit

that

they

never

contracted with Harbin yet insist that Harbin breached a “duty to
act reasonably toward the Rosses.” [Doc. 46, pp. 1-2]
But the Rosses have not hinted at a desire to amend their
Complaint. This suggests to the Court that the Rosses believe that
they cannot plead their Complaint in a manner that would avoid
dismissal. See Lakiesha v. Bank of New York Mellon, 3:15-CV-901,
2015 WL 5934439, at *13 (N.D. Tex. Oct. 9, 2015). And when
plaintiffs fail to amend as of right, like the Rosses here, the
Court is not required to give them the opportunity to amend predismissal. See Garrett v. Celanese Corp., 102 Fed. App’x 387, 388
(5th Cir. 2004) (per curiam); Lakiesha, 2015 WL 5934439, at *13.

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On count II, the Rosses fail to offer any facts or law showing
that they could plead a plausible breach of contract claim against
either Defendant. The Court therefore dismisses count II with
prejudice as to U.S. Bank and Harbin.
C.

Count III - Breach of the Covenant of Good Faith and Fair
Dealing
The Court’s Order advised the Rosses that the Complaint stated

no claims for breach of the covenant of good faith and fair dealing
because it failed to identify any contract from which the covenant
could arise. [Doc. 41, pp. 6-7]
In response, the Rosses’ simply recite black-letter quasicontract law. The response makes no effort to pinpoint a contract
from which any claim for breach of the covenant of good faith and
fair dealing could arise; nor does it attempt to explain how either
Defendant could be liable in the absence of a contract.
The

Rosses’

response

confirms

that

count

III’s

pleading

defects cannot be cured by amendment. This claim turns upon the
existence of a contract —— a contract that the Rosses now appear
to concede does not exist. The Court therefore dismisses count III
with prejudice as to U.S. Bank and Harbin.
D.

Counts IV and VI – Fraudulent and Negligent Misrepresentation
The Court’s Order advised the Rosses that the Complaint failed

to state fraudulent and negligent misrepresentation claims against
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either

Defendant

because

it

lacked

any

allegation

that

any

Defendant made a specific misrepresentation. [Doc. 41, p. 8] The
Complaint also omitted such allegations as the maker of the
unpleaded

misrepresentation,

misrepresentation,

the

substance

of

the

and its materiality. [Doc. 41, p. 11]

The Rosses’ response avoids the issues raised by the Court’s
Order. No misrepresentation is identified. To the contrary, the
response details only generalized grievances from which it is
difficult to discern whether any such statement would be uncovered
in discovery.
On counts IV and VI, the Rosses fail to offer any facts or
law showing that the pleading defects detailed in the Court’s Order
[Doc.

41,

pp.

7-11]

could

be

cured

by

amendment.

The

Court

therefore dismisses counts IV and VI with prejudice as to U.S.
Bank and Harbin.
E.

Count VII – Mississippi Consumer Protection Act Violations
The Court’s Order advised the Rosses that the Complaint failed

to state a claim under the Mississippi Consumer Protection Act
(“MCPA”) against Harbin and U.S. Bank because (1) no connection
existed between the allegations of the Complaint and the thirteen
statutory examples of “unfair” and “deceptive” practices; and (2)
the Complaint did not allege that the Rosses attempted to resolve

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their claims through an informal dispute resolution program before
filing suit, as the MCPA requires. [Doc. 41, p. 15]
The Rosses’ response makes no mention of the MCPA. Their
silence on the issue suggests that the defects detailed in the
Court’s Order [Doc. 41, pp. 14-15] cannot be cured by amendment.
The Court therefore dismisses count VII with prejudice as to U.S.
Bank and Harbin.
III. CONCLUSION
The Rosses’ response basically ignores the concerns the Court
identified in its Opinion and Show Cause Order. It is altogether
unclear which claims, if any, the Rosses believe they have and to
which Defendant(s) any such claims apply. The Rosses have not
expressed a desire to amend their Complaint; nor have they apprised
the Court of any facts or law —— relative to any theory, pleaded
or otherwise —— that they would have added to their Complaint to
sufficiently plead claims upon which relief could be granted
against either U.S. Bank or Harbin.

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ACCORDINGLY,
IT IS HEREBY ORDERED that this action is DISMISSED WITH
PREJUDICE as to Defendants Joey Harbin and U.S. Bank, N.A.
SO ORDERED, this the 11th day of January, 2018.

/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE

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