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

Filing 56

ORDER denying 55 Motion for Default Judgment. Signed by Honorable David C. Bramlette, III on July 26, 2018 (JBR)

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

V.

PLAINTIFFS

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

QUALITY HOMES OF MCCOMB, INC.,
MISS/LOU MOBILE HOME MOVERS, LLC,
PLATINUM HOMES, LLC, and
JOEY HARBIN

DEFENDANTS

ORDER AND OPINION

Earl and Maxcine Ross move the Court to enter a default
judgment against Miss/Lou Mobile Home Movers, LLC (“Miss/Lou”).
For the reasons that follow, the motion is DENIED.1
I.

Background
This dispute arises from Earl and Maxcine Ross’s purchase of

a mobile home that they describe as “uninhabitable.”
The Rosses originally sued five defendants involved in the
manufacture, sale, or transportation of the mobile home. See Doc.

The Court assumes familiarity with its November 16, 2017 Opinion and
Show Cause Order, which describes the Rosses’ claims and allegations in greater
detail. See Doc. 41.
1

1, ¶¶ B-F. Only one defendant —— Miss/Lou —— remains. The Court
compelled the Rosses to arbitrate their claims against Quality
Homes of McComb, Inc., the home’s retail-seller, and Platinum
Homes, LLC, the home’s manufacturer. See Doc. 40. And the Court
dismissed with prejudice the Rosses’ claims against Joey Harbin,
a Platinum Homes employee, and U.S. Bank, N.A., the bank that
financed the Rosses’ mobile home purchase. See Doc. 48.
Miss/Lou was charged with transporting and installing the
Rosses’ mobile home. See Doc. 1, ¶ C. But how and to what extent
it is involved in this dispute is unclear; its name is mentioned
just once in the complaint, in the section identifying the parties.
See Doc. 1, ¶ C. And Miss/Lou is not the focus of any of the
complaint’s nine counts.2 See Doc. 1, Counts I-IX.
Miss/Lou’s registered agent, David Nichols, was served with
process

on

May

8,

2017

at

7907

Huckleberry

Lane,

Summit,

Mississippi 39666. See Doc. 4, p. 2. Despite proper service,
Miss/Lou failed to plead or otherwise defend the Rosses’ suit. The
Clerk of Court thus entered a Federal Rule of Civil Procedure 55(a)
default against Miss/Lou on June 18, 2018. See Doc. 54.

The Rosses’ complaint complicates the Court’s task by failing to identify
the defendant(s) against whom each claim is asserted. See Doc. 1, Counts I-IX.
2

2

Pointing to the Clerk of Court’s entry of default, the Rosses
now ask the Court to enter a default judgment against Miss/Lou.
See Doc. 55.
II.

Legal Standard
After applying for and obtaining an entry of default, the

Rosses moved for entry of a default judgment.3 FED. R. CIV. P. 55(a)(b). The Rosses are commended for following the proper Rule 55
sequence, but that, by itself, is no guarantee that a default
judgment will be entered against Miss/Lou. Nishimatsu Const. Co.
v. Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (Wisdom,
J.).
A defendant in default admits only those facts that are wellpleaded —— it does not admit legal conclusions. Trout Point Lodge,
Ltd. v. Handshoe, 729 F.3d 481, 491 (5th Cir. 2013). And the Fifth
Circuit “h[as] adopted a policy in favor of resolving cases on
their merits and against the use of default judgments.” In re
Chinese Manufactured Drywall Prods. Liability Litig., 742 F.3d
576, 594 (5th Cir. 2014) (citing Rogers v. Hartford Life & Accident
Ins. Co., 167 F.3d 933, 936 (5th Cir. 1999)).

Judge DeMoss distinguished, with lucidity, the concepts of “default,”
“entry of default,” and “default judgment” in New York Life Ins. Co. v. Brown,
84 F.3d 137, 141 (5th Cir. 1996).
3

3

The Court cannot enter a default judgment against Miss/Lou
unless the Rosses’ complaint contains well-pleaded allegations
that provide the Court with a “sufficient basis” for doing so.
Wooten V. McDonald Transit Assocs., Inc., 788 F.3d 490, 498 (5th
Cir. 2015). And to provide the Court with a “sufficient basis,”
the

Rosses’

complaint

must

allege

a

plausible

claim

against

Miss/Lou. Handshoe, 729 F.3d at 491 (citing DynaSteel Corp. v.
Aztec Indus., Inc., 611 So. 2d 977, 988 (Miss. 1992); Lewis v.
Lynn, 236 F.3d 766, 767 (5th Cir. 2001) (per curiam) (affirming
denial of default judgment when allegations of complaint, even if
assumed true, failed to allege a claim against the defendant in
default).
The Rosses’ complaint must contain a short and plain statement
of the claim showing that the Rosses are entitled to relief. FED.
R. CIV. P. 8(a)(2). To show that they are entitled to relief, the
Rosses must plead a plausible claim: A claim supported by factual
allegations that allow the Court to reasonably infer that Miss/Lou
is liable for the misconduct alleged. Edionwe v. Bailey, 860 F.3d
287, 291 (5th Cir. 2017) (citing Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009))
III. Default Judgment Against Miss/Lou
The

Rosses’

shotgun-style

complaint

attempts

to

allege,

against all defendants, claims for (1) breach of fiduciary duty,
4

(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) violation
of federal and state consumer protection statutes, (8) slander,
and (9) violations of 42 U.S.C. § 1983. The Court addresses each
in turn.
A. Breach of Fiduciary Duty
Count I alleges that an unspecified defendant breached an
unspecified fiduciary duty. Doc. 1, pp. 10-11. To plead a claim
for breach of fiduciary duty, the Rosses must allege that Miss/Lou
(1) owed the Rosses a fiduciary duty and (2) breached that duty.
Merchants & Planters Bank of Raymond v. Williamson, 691 So. 2d
398, 403 (Miss. 1997). They fail to do so.
Count I does not mention Miss/Lou. And it is unclear how
Miss/Lou —— the transporter and installer of the Rosses’ mobile
home —— could owe the Rosses a fiduciary duty. It is not the
Court’s role to surmise a set of facts which, if pleaded, could
create a fiduciary relationship between a mobile home’s installer
and the mobile home’s buyers. Further, the focus of Count I appears
to be the “business relationship . . . for the purchase of a
manufactured mobile home.” That “business relationship” was with
either Quality Homes of McComb, the retail-seller, or Platinum
Homes, the manufacturer. It was not with Miss/Lou. According to
5

the Rosses’ complaint, Miss/Lou transports and installs mobile
homes —— it does not sell them.
The Rosses’ complaint fails to allege a plausible breach of
fiduciary duty claim against Miss/Lou. And because the Rosses fail
to plead a plausible

breach of fiduciary duty

claim

against

Miss/Lou, the Court lacks a “sufficient basis” to enter a default
judgment against Miss/Lou on the claim. Nishimatsu, 515 F.2d at
1206; Scott v. Carpanzano, 556 F. App’x 288, 297 (5th Cir. 2014)
(per curiam) (reversing district court’s entry of default judgment
against

defendant

where

complaint

lacked

specific

factual

allegations to support claims against defendant).
B. Breach of Contract
Count II is styled breach of contract, but it contains the
same allegations as Count I. To plead a claim for breach of
contract, the Rosses must allege that they contracted with Miss/Lou
and that Miss/Lou breached the contract. Business Communications,
Inc. v. Banks, 90 So. 3d 1221, 1225 (Miss. 2012).
Count II, like Count I, does not mention Miss/Lou. And the
thrust of Count II, like Count I, is the “business relationship .
. . for the purchase of [the] home.” Again, the only parties with
which the Rosses could have had any “business relationship” for
the purchase of the mobile home are Quality Homes of McComb and
Platinum Homes.
6

The Rosses’ complaint fails to allege a plausible claim for
breach of contract against Miss/Lou because the complaint does not
allege that the Rosses contracted with Miss/Lou. Because the
Rosses’ complaint fails to allege a plausible breach of contract
claim against Miss/Lou, the Court lacks a “sufficient basis” to
enter a default judgment against Miss/Lou on the claim. Nishimatsu,
515 F.2d at 1206.
C. Breach of the Covenant of Good Faith and Fair Dealing
Count III alleges that an unspecified defendant breached the
covenant of good faith and fair dealing by “evading the spirit” of
an unidentified contract “by sending a home not agreed upon.” Doc.
1, p. 12. A party cannot plead a plausible claim for breach of the
covenant of good faith and fair dealing against a party with which
it has no contract. See, e.g., Ware v. U.S. Bank Nat’l Assoc., No.
3:13-CV-387-DPJ-FKB, 2014 WL 12642116, at *2 (S.D. Miss. Apr. 15,
2014).
The Rosses’ complaint fails to allege a plausible claim for
breach of the implied covenant of good faith and fair dealing
against Miss/Lou because the complaint does not identify a contract
between the Rosses and Miss/Lou. And because the Rosses’ complaint
fails to allege a plausible claim for breach of the implied
covenant of good faith and fair dealing against Miss/Lou, the Court

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lacks a “sufficient basis” to enter a default judgment against
Miss/Lou on the claim. Nishimatsu, 515 F.2d at 1206.
D. Fraudulent Misrepresentation
Count IV alleges that an unspecified defendant committed an
unspecified fraudulent misrepresentation. To plead a plausible
fraudulent misrepresentation claim, the Rosses must allege
(1) a representation; (2) its falsity; (3) its
materiality; (4) the speaker’s knowledge of its falsity
or ignorance of the truth; (5) his intent that it should
be acted on by the hearer in the manner reasonably
contemplated; (6) the hearer’s ignorance of its falsity;
(7) his reliance on its truth; (8) his right to rely
thereon; and (9) his consequent and proximate injury.
Elchos v. Haas, 178 So. 3d 1183, 1198 (Miss. 2015).
The Rosses’ complaint fails to allege a plausible fraudulent
misrepresentation claim against Miss/Lou because the complaint
does not identify a representation by Miss/Lou. Because the Rosses’
complaint fails to allege a plausible fraudulent misrepresentation
claim against Miss/Lou, the Court lacks a “sufficient basis” to
enter a default judgment against Miss/Lou on the claim. Nishimatsu,
515 F.2d at 1206.
E. Unconscionability
Count V attempts to allege an “unconscionability” claim.
Unconscionability is a defense to enforcement of a contract; it is

8

not

an

affirmative

claim.

See

Caplin

Enterprises,

Inc.

v.

Arrington, 145 So. 3d 608, 614 (Miss. 2014).
The Rosses’ complaint fails to allege a plausible claim
against Miss/Lou for unconscionability because unconscionability
is not a cognizable claim. See Shandong Yinguang Chem. Indus. Joint
Stock Co. v. Potter, 607 F.3d 1029, 1032 (5th Cir. 2010) (legal
theory must be cognizable for complaint to present a plausible
right to relief). Because the Rosses’ complaint fails to allege a
plausible unconscionability claim against Miss/Lou, the Court
lacks a “sufficient basis” to enter a default judgment against
Miss/Lou on the claim. Nishimatsu, 515 F.2d at 1206.
F. Negligent Misrepresentation
Count VI attempts to allege a negligent misrepresentation
claim. To plead a plausible negligent misrepresentation claim, the
Rosses must allege (1) Miss/Lou made a misrepresentation, (2) the
misrepresentation was material, (3) Miss/Lou failed to exercise
that degree of diligence and expertise the public is entitled to
expect,

(4)

the

Rosses

reasonably

relied

on

Miss/Lou’s

misrepresentation, and (5) Miss/Lou’s misrepresentation caused the
Rosses damages. Horace Mann Life Ins. Co. v. Nunaley, 960 So. 2d
455, 461 (Miss. 2007).
The Rosses’ complaint fails to allege a plausible negligent
misrepresentation claim against Miss/Lou because the complaint
9

fails to identify any misrepresentation Miss/Lou made. And the
allegations of Count VI make it impossible for the Court to
determine

which

defendant

allegedly

committed

which

misrepresentation. Because the Rosses’ complaint fails to allege
a plausible negligent misrepresentation claim against Miss/Lou,
the Court lacks a “sufficient basis” to enter a default judgment
against Miss/Lou on the claim. Nishimatsu, 515 F.2d at 1206.
G. Federal and State Consumer Protection Laws
Count VII of the Rosses’ complaint simply lists four statutes
and concludes that “defendants’ unfair or deceptive trade practice
is prohibited.” See Doc. 1, p. 15. The Rosses make no effort to
tailor

any

of

their

allegations

to

any

cited

statute.

And

Miss/Lou’s involvement, if any, is not explained. The Rosses’
complaint thus fails to allege a plausible claim against Miss/Lou
for violation of any of the cited (but unexplained) consumer
protection laws. Because the Rosses’ complaint fails to allege a
plausible claim against Miss/Lou, the Court lacks a “sufficient
basis” to enter a default judgment against Miss/Lou on the claim.
Nishimatsu, 515 F.2d at 1206.
H. Slander
Count VIII of the Rosses’ complaint alleges that “defendants”
slandered the Rosses when Platinum Homes employee Joey Harbin
10

called the Rosses “niggers.” The allegations of Count VIII have
nothing to do with Miss/Lou. The Rosses therefore fail to plead a
plausible slander claim against Miss/Lou. Because the Rosses’
complaint

fails

to

allege

a

plausible

slander

claim

against

Miss/Lou, the Court lacks a “sufficient basis” to enter a default
judgment against Miss/Lou on the claim. Nishimatsu, 515 F.2d at
1206.
I. Section 1983
Count IX of the Rosses’ complaint attempts to allege a claim
for emotional distress under 42 U.S.C. § 1983. On this count, the
Rosses’

allegations

are

conclusory

and

confusing.

The

Rosses

allege that they have “suffered mental anguish and emotional
distress” as a result of the misrepresentations and racial slurs
of

unspecified

defendants.

Miss/Lou’s

involvement

is

again

unexplained. Thus, Count IX fails to allege a plausible claim §
1983 claim against Miss/Lou. Because the Rosses’ complaint fails
to plead a plausible § 1983 claim against Miss/Lou, the Court lacks
a “sufficient basis” to enter a default judgment against Miss/Lou.
Nishimatsu, 515 F.2d at 1206.

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IV.

Conclusion
The Rosses’ complaint fails to supply the Court with well-

pleaded

allegations

which,

if

assumed

true,

would

establish

Miss/Lou’s liability on any claim. Because the Rosses’ complaint
does not allege any plausible claims against Miss/Lou, the Court
lacks a “sufficient basis” to enter a default judgment against
Miss/Lou. See Nishimatsu, 515 F.2d at 1206; Lewis, 236 F.3d at
767. If the Rosses wish to obtain a default judgment against
Miss/Lou, they must provide the Court with a “sufficient basis”
for doing so by amending their complaint to allege a plausible
claim against Miss/Lou.
Accordingly,
IT IS ORDERED that Earl and Maxcine Ross’s motion for default
judgment against Miss/Lou Mobile Home Movers, LLC [Doc. 55] is
DENIED.
SO ORDERED, this the 26th day of July, 2018.
/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE

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