Diaz v. Estate of Lampton

OLIVER E. DIAZ, JR.; JENNIFER DIAZ PLAINTIFFS

v.ESTATE OF DUNNICA O. LAMPTON DEFENDANT

CAUSE NO. 3:09-CV-324-CWR-MTP

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION

SO ORDERED: June 26, 2013

ORDER

Before the Court is the defendant's motion to dismiss. Docket No. 204. The plaintiffs have responded, Docket No. 210, and the defendant has replied, Docket No. 211.

After considering the allegations, arguments, and applicable law, the Court concludes that (1) the Diazes' federal claims should be dismissed with prejudice for failure to state a claim, and (2) the Diazes' state law claims should be dismissed without prejudice to allow a state court of competent jurisdiction to resolve novel and complex issues of state law.

I. Background

This case has a lengthy history which is well-explained in prior Orders by this Court and two opinions by the Fifth Circuit Court of Appeals. See Docket Nos. 103, 199, 209; Lampton v. Diaz, 661 F.3d 897 (5th Cir. 2011) [hereinafter L. Lampton]; Lampton v. Diaz, 639 F.3d 223 (5th Cir. 2011) [hereinafter D. Lampton]. What remains is Oliver and Jennifer Diaz's claim that the Estate of Dunnica "Dunn" O. Lampton is liable to them for Dunn Lampton's unauthorized distribution of their confidential tax information to the Mississippi Commission on Judicial Performance. Docket No. 209, at 1.

Oliver Diaz's causes of action are "abuse of process, malicious prosecution, emotional distress, invasion of privacy, and 42 U.S.C. § 1983 (based upon Lampton's alleged violations of 18 U.S.C. § 1905, 26 U.S.C. § 6103, and 26 U.S.C. § 7213)." Id. Jennifer Diaz's causes of action are abuse of process, invasion of privacy, civil conspiracy, misprision, the tort of outrage, violations of 42 U.S.C. §§ 1983 & 1985, as well as violations of 26 U.S.C. §§ 6103 and 7431. Id.

Dunn Lampton had previously sought dismissal of the Diazes' claims on the basis of absolute prosecutorial immunity. Docket No. 199, at 2. That motion was denied and the Fifth Circuit affirmed. Id.; D. Lampton, 639 F.3d at 229. His Estate has now moved to dismiss on other grounds.

II. Legal Standards

A. Motions to Dismiss

When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court accepts the plaintiff's factual allegations as true and makes reasonable inferences in the plaintiff's favor. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must contain "more than an unadorned, the defendant-unlawfully-harmed-me accusation," but need not have "detailed factual allegations." Id. (quotation marks and citation omitted). The plaintiff's claims must also be plausible on their face, which means there is "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). The Court need not accept as true "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. (citation omitted).

Since Iqbal, the Fifth Circuit has stated that the Supreme Court's "emphasis on the plausibility of a complaint's allegations does not give district courts license to look behind those allegations and independently assess the likelihood that the plaintiff will be able to prove them at trial." Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 803 n.44 (5th Cir. 2011).

B. Qualified Immunity

"The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation marks and citation omitted). "This immunity protects all but the plainly incompetent or those who knowingly violate the law, so we do not deny immunity unless existing precedent must have placed the statutory or constitutional question beyond debate." Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (quotation marks, citations, and emphasis omitted).

"When a defendant invokes qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the defense. To discharge this burden, a plaintiff must satisfy a two-prong test." Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005) (quotation marks and citations omitted). At the dismissal stage, a court must first "decide whether the facts that a plaintiff has alleged . . . make out a violation of a constitutional [or statutory] right. Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was 'clearly established' atthe time of defendant's alleged misconduct."¹ Pearson, 555 U.S. at 232 (citations omitted). "[T]he question whether the right was clearly established at the time the defendant acted requires an assessment of whether the official's conduct would have been objectively reasonable at the time of the incident." Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quotation marks, citation, and ellipses omitted).

III. Discussion

A. Service of Process

A threshold issue is whether the Diazes properly brought Dunn Lampton into this case. The Estate contends that the Diazes' filing of a third-party complaint against Dunn Lampton violated Mississippi Rule of Civil Procedure 14 and Mississippi case law. Docket No. 205, at 8-9. The Diazes respond that this argument should have been presented in Dunn Lampton's first motion to dismiss, which was filed in this Court in September 2009. Docket No. 210, at 10.

Under the Federal Rules of Civil Procedure, a party waives the defenses of lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process by omitting those defenses "from a motion in the circumstances described in Rule 12(g)(2)." Fed. R. Civ. P. 12(h)(1)(A). Rule 12(g)(2) states that "a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion." Id. at 12(g)(2).

In other words, the Rule requires lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process to be raised in a party's first motion to dismiss. E.g., Golden v. Cox Furniture Mfg. Co., 683 F.2d 115, 118 (5th Cir. 1982) (concluding that the defendant waived its service of process and personal jurisdiction arguments by failing to include them in its answer and motion to transfer).

In September 2009, Lampton moved to dismiss on the basis of absolute prosecutorial immunity. Docket No. 39. His brief did not raise a problem with service of process. Id.; see also Docket Nos. 26, 90. Under the Federal Rules of Civil Procedure, his failure to assert the defense of insufficient service of process at that time means his Estate cannot raise it now.

B. The Estate's Immunity Defenses

The Estate next contends it is entitled to a number of immunities under Mississippi and federal law, including Mississippi Code § 9-19-29, Mississippi Rule of Professional Conduct 8.3, and qualified immunity. Docket No. 205. The Diazes respond that the Estate has waived all of its immunity-based defenses by failing to raise them in its September 2009 motion to dismiss. Docket No. 210, at 2-5. The Diazes claim to have been prejudiced by that delay, since they have been denied discovery for over three years, may have to defend a second interlocutory appeal at the motion to dismiss stage, and will not have a trial on the merits in any reasonable timeframe. Id.

The Diazes have cited a Sixth Circuit case which found that "a failure to assert the defense [of qualified immunity] in a pre-answer motion to dismiss waives the right to raise the issue in a second pre-answer motion to dismiss." English v. Dyke, 23 F.3d 1086, 1090 (6th Cir. 1994) (citation omitted). "Moreover, the trial court has discretion to find a waiver if a defendant fails to assert the defense within time limits set by the court or if the court otherwise finds that a defendant has failed to exercise due diligence or has asserted the defense for dilatory purposes." Id. The Diazes argue that such a waiver policy "would not waive the defense for all purposes, but would generally only waive the defense for the stage at which the defense should have been asserted." Docket No. 210, at 2 (citation omitted).

At the same time, the Diazes recognize that the law of the Fifth Circuit is different. Id. at 3-4 (citing Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572 (5th Cir. 2009)). In Knoblauch, the Fifth Circuit held that an affirmative defense such as qualified immunity "is not waived if the defendant raised the issue at a pragmatically sufficient time, and the plaintiff was not prejudiced in its ability to respond." Knoblauch, 566 F.3d at 577 (quotation marks, citation, and brackets omitted). It instructed that courts are to "look at the overall context of the litigation" and observed that it has "found no waiver where no evidence of prejudice exists and sufficient time to respond to the defense remains before trial." Id. (collecting cases).

On one hand, Lampton's failure to prepare a complete motion to dismiss in September 2009 has led to a considerable delay in this case, caused primarily by his pursuit of an interlocutory appeal on absolute immunity. During that time period, he passed away. The Diazes have been prejudiced not just because of the delay, but also because they were denied the opportunity to depose Lampton before his (untimely) death. That delay could have been avoided had Lampton briefed all of his arguments for dismissal in his first motion.

And yet the Diazes' arguments for waiver are ultimately not persuasive. First, because the dispute between these parties truly is at its earliest stages, the Diazes are not prejudiced in their ability to respond to the Estate's immunity defenses. Although the case was filed in 2009, the...