Crosby v. Hariel

BENJAMIN F. CROSBY, III, Individually and as Power of Appointmentfor the Benjamin F. Crosby, Jr. Revocable Living Trustand the Paula Crosby Revocable Living Trust; BENJAMIN F. CROSBY, JR.,Individually and as Co-Trustee of the Benjamin F. Crosby, Jr.Revocable Living Trust and the Paula Crosby Revocable Living Trust; PAULA CROSBY,Individually and as Co-Trustee of the Benjamin F. Crosby, Jr. Revocable Living Trustand the Paula Crosby Revocable Living Trust, Plaintiffs - Appellants v. VICKIE P. HARIEL, Individually and in her Capacity as Clerkof the Circuit Court, Pearl River County, Mississippi; E. BRAGG WILLIAMS, III;JOSEPH H. MONTGOMERY, in his individual capacity as a lawyer/partner with Williams,Williams & Montgomery, P.A.; JOSEPH H. MONTGOMERY, in his official capacity as attorneyfor the Chancery Clerk of Pearl River County, Mississippi; GREGORY P. HOLCOMB;WILLIAMS, WILLIAMS & MONTGOMERY, P.A.; NEOPOST USA, INCORPORATED,NEOPOST, INCORPORATED, NEOPOST LEASING, INCORPORATED,also known as Hasler; ABC SURETY COMPANY; ABC INSURANCE COMPANY;XYZ SURETY COMPANY; XYZ INSURANCE COMPANY, Defendants - Appellees

No. 16-60205

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

December 15, 2016

Summary Calendar

Appeal from the United States District Court for the Southern District of Mississippi

USDC No. 1:15-CV-413

Before DAVIS, BENAVIDES, and OWEN, Circuit Judges.

PER CURIAM:^*

Appellants appeal the district court's dismissal with prejudice of their complaint for failure to state a claim upon which relief can be granted. See Federal Rule of Civil Procedure 12(b)(6). Appellants' only claim is that the district court should have dismissed the complaint without prejudice. Finding no abuse of discretion, we AFFIRM.

I. PROCEDURAL HISTORY

Two families, the Crosbys and the Mittelstaedts, have been involved in a "long-running and contentious litigation" with respect to the Mittelstaedts' need for an easement to enter their property through the Crosbys' adjacent property. Crosby v. Mittelstaedt, 186 So.3d 415, 416 (Miss. App. 2016). In February of 2014, the families reached a settlement agreement in which the Mittelstaedts agreed to pay $25,000 and maintain a fence and gate on the property, and, in exchange, the Crosbys agreed to grant the requested easement. Id. Shortly thereafter, the Crosbys filed a lis pendens notice against the Mittelstaedts' property, claiming the fence and gate were in violation of the settlement agreement. Id. at 416-17.

The Mittelstaedts brought suit against the Crosbys in Mississippi state court to enforce the settlement agreement. Id. On December 16, 2014, the state court issued an order concluding that the gate and fence were not in violation of the terms of the agreement, cancelling the lis pendens, and enforcing the settlement agreement. Id. at 417. The court also found that "theCrosbys had deliberately violated the court-approved settlement and had not lived up to their obligation to carry out its terms in 'good faith.'" Id. However, the Crosbys did not receive notice of the December 16th order until after the deadline for filing a notice of appeal. Id. The order had been mailed to the Crosbys in an envelope from the Clerk of the Circuit Court of Pearl River County, Mississippi, and the postage meter date was June 4, 2014, some six months prior to the issuance of the order.

The Crosbys moved to reopen the time for appeal pursuant to Rule 4(h) of the Mississippi Rules of Appellate Procedure. Id. The trial court denied the motion, and the Court of Appeals of Mississippi held that the trial court did not abuse his discretion in denying the motion. Id.

Meanwhile, on December 15, 2015, during the pendency of the state court appeal, the Crosbys, who are citizens of Florida, brought a diversity action in federal district court in Mississippi against: (1) Vickie P. Hariel ("Hariel"), who was the Clerk of the Circuit Court of Pearl River County; (2) the following lawyers who represented the Mittelstaedts in the state court litigation, E. Bragg Williams, Joseph H. Montgomery, Gregory P. Holcomb and Williams, Williams & Montgomery, P.A., (collectively "WWM"); (3) Neopost USA, Inc. ("Neopost"), which was the company that leased the postage meter to Pearl River County; and (4) several unidentified surety and insurance companies.¹ The complaint alleged conspiracy, mail fraud, and obstruction of justice stemming from the late notice of the judgment against them with respect to the state court action.

WWM filed a motion to dismiss, arguing that the complaint failed to state a claim upon which relief can be granted because the claims in the complaint are all based on criminal statutes that do not provide any basis for a civil cause of action. Defendants Hariel and Montgomery² also filed a joint motion to dismiss. The Crosbys then filed a motion for leave to file a first supplemental and amending complaint to plead specific damages and add claims against Pearl River County, Judge Prentiss Harrell, MailFinance, Inc., Kathryn Adele Mittelstaedt, Carol Ann Mittelstaedt Koelemay, Douglas E. Mittelstaedt and Elizabeth Ross Hadley.

The Crosbys filed an amended response to Montgomery and Hariel's motion to dismiss. With respect to Montgomery, the Crosbys argued that they did not name him as a defendant in his official capacity as the attorney for the Pearl River County Board of Supervisors. Instead, the Crosbys asserted that Montgomery was sued in his individual capacity. With respect to Hariel, the Crosbys asserted that they named her both individually and in her capacity as Clerk of the Court. The Crosbys argued that she failed to properly mail them notice of the order in violation of her duties as Clerk and that her use of the postage meter in the conspiracy to commit fraud "should give sufficient rise to deny" the motion to dismiss.

Neopost filed a motion to dismiss, arguing, among other things, that the Crosbys' claims are based upon criminal statutes that do not provide a private right of action. The Crosbys filed a response to this motion to dismiss, asserting that Neopost owned the postage meter that was used in conjunction with the mailing of the late notice. The Crosbys further asserted that Neoposthad not cooperated with their subpoenas, and thus Neopost had participated in the "coverup" of the conspiracy to deny them access to the courts.

The district court granted the defendants' motions to dismiss, ruling that there is no private cause of action for violation of the three criminal statutes relied upon by the Crosbys. Additionally, the court ruled that "[b]ecause the law provides no basis for relief on Plaintiffs' three claims, further amendment is futile." The Crosbys timely filed a notice of appeal.

II. DISMISSAL WITH PREJUDICE UNDER RULE 12(b)(6)

The Crosbys expressly disavow any challenge to the district court's ruling that their complaint failed to state a claim under Rule 12(b)(6). However, they do contend that the dismissal should have been without prejudice. With respect to the standard of review, the Crosbys contend that their claim should be reviewed de novo. We disagree. Although we review de novo a district court's dismissal of a complaint for failure to state a claim,³ the Crosbys are not challenging the grant of the ...