United States District Court, S.D. Mississippi, Northern Division
GERALD M. RICH PLAINTIFF/COUNTER DEFENDANT
ALEXANDRIA VICTORIA SHEPPARD, et al. DEFENDANTS/COUNTER PLAINTIFFS
P. Jordan III UNITED STATES DISTRICT JUDGE
tort action is before the Court on Defendants Alexandria
Victoria Sheppard's and James Patrick Sheppard's
Motion to Dismiss  and Motion to Amend ; and Defendant
Philip Thomas's Motion to Dismiss  and Motion for
Sanctions . For the reasons that follow, the Court grants
the dismissal motions in part; grants Defendants' motion
for leave to amend; but denies the motion for sanctions.
Facts and Procedural History
matter is a sad one and relates to the death of Patricia Hall
Sheppard in May 2015. The following facts are asserted in the
Complaint and assumed true under Federal Rule of Civil
Gerald M. Rich says he entered into a “life
partnership” with Patricia in the summer of 2007.
Compl. [1-1] ¶¶ 7-8. At that time, she had two
children from a previous marriage, Defendants Alexandria
Victoria Sheppard (“Victoria”) and James Patrick
Sheppard (“James”) (collectively “the
Sheppards”). Id. ¶ 7. During the
relationship, Rich was involved in many aspects of
Patricia's life, including her personal and financial
matters. Id. ¶¶ 9-10. And it was through
this involvement that Rich came to know Patricia's
attorney, Defendant Philip Thomas, during his representation
of her in an unrelated legal action involving Regions Bank.
Id. ¶ 10.
December 11, 2014, Patricia was diagnosed with pancreatic
cancer. Id. ¶ 11. And on December 30, 2014, she
executed a Last Will and Testament bequeathing to Rich
investment accounts valued around $180, 000 and to her
children the remainder of her estate. Id. ¶ 13.
She also named Rich the executor and, along with her
children, her attorney in fact. Id. The next month,
on January 3, 2015, Patricia executed a second will identical
to the first, changing only that Rich was to receive $125,
000 outright. Id. Thomas prepared both wills.
her health declining, Patricia was admitted to a hospital in
Minnesota on March 27, 2015, accompanied by Rich and
Victoria. Id. ¶ 21. When Rich returned home
nearly two weeks later, he learned that the beneficiaries on
the investment accounts previously bequeathed to him had been
changed to the Sheppards. Id. ¶ 24. Rich called
Patricia about this change and later spoke with Victoria, who
told him that he “had upset her mother after which she
hung up on him.” Id. Then, on April 11, 2015,
James met Rich at the Jackson, Mississippi, home Rich and
Patricia shared, explaining that Rich was no longer welcome
at the hospital where Patricia was admitted. Id.
¶ 26. James also told Rich that he was there to collect
his mother's checkbook, cash, and other personal items.
Id. That same day, unbeknownst to Rich, Patricia
executed her third and final will, completely excluding Rich
from any testamentary gift. Id. ¶ 27.
the next month, Rich attempted to establish contact with
Patricia, the Sheppards, and Thomas to no avail. Id.
¶ 30. Then, on May 16, Patricia sent Rich a text message
stating, “Help P.” Id. ¶ 31. Rich
“immediately” left his Louisiana home and drove
to Mississippi. Id. But upon arriving at the Jackson
home, he discovered that the locks had been changed, and a
police officer instructed him to either leave or face
trespassing charges. Id.
time, Patricia had moved to Hospice Ministries in Ridgeland,
Mississippi. Id. ¶ 32. And when Rich attempted
to visit her, Thomas and his wife “informed [Rich] that
‘he was not to be there' and that the [previous]
Power of Attorney was invalid.” Id. Rich
called a police officer, id.; but when the officer
arrived, he went into the facility and “returned . . .
to say that [Rich] was not wanted by the family” and
that he should leave the premises or face trespassing
charges. Id. ¶ 33. Rich neither spoke with nor
saw Patricia again-she passed away on May 23, 2015.
Id. ¶ 34.
by Defendants' alleged actions, Rich filed suit on April
8, 2016, in the Circuit Court of Hinds County, Mississippi.
In his Complaint, Rich alleges four claims: (1) intentional
infliction of emotional distress, (2) negligent infliction of
emotional distress, (3) slander and defamation, and (4)
fraud, against all Defendants. In their answer , the
Sheppards assert counterclaims of (1) fraud in the execution
and/or negligent misrepresentation and (2) conversion.
subsequently removed the case on diversity grounds on May 16,
2016. A few weeks later, on June 1, 2016, the Sheppards
refiled their affirmative defenses as a motion to dismiss
, without an accompanying memorandum of law. Thomas then
moved for dismissal  the next day. He later filed his
Motion for Sanctions  on September 15, 2016.
January 30, 2017, the Court entered a show-cause order
questioning whether diversity jurisdiction exists because
Rich is a Louisiana resident and Defendant James pleaded in
his Answer that he too resides in Louisiana. See
Jan. 30, 2017 Order . The Sheppards responded to the
Court's Order on February 9, 2017, stating that a
drafting error had occurred and that James actually resides
in Mississippi. They likewise filed a motion to amend the
error that same day. Rich filed no response to the Motion to
Amend , and the time to do so passed February 23, 2017.
The Motion to Amend  is therefore granted as unopposed.
See L.U. Civ. R. 7(b)(3)(E). And in light of the
amendment, the Court is satisfied that personal and
subject-matter jurisdiction exist.
initial matter, the parties offer factual allegations in
their briefs that fall beyond the pleadings. If the Court
considers them, then it would be required to convert the
motions to dismiss into motions for summary judgment.
Fed.R.Civ.P. 12(d). Whether to do so is a matter left to the
district court's “complete discretion.”
Isquith ex rel. Isquith v. Middle S. Utils., Inc.,
847 F.2d 186, 193 n.3 (5th Cir. 1988). But here, many of the
new allegations-mostly from Rich-are nothing more than
assertions from counsel that lack evidentiary support and
would therefore be insufficient under Rule 56(c).
Accordingly, the Court will not invoke Rule 12(d) and will
disregard allegations that are not found in the pleadings.
addition, Thomas and the Sheppards answered the Complaint
before seeking dismissal, so technically their Rule 12(b)(6)
motions must be considered under Federal Rule of Civil
Procedure 12(c). Regardless, the standard under either rule
is the same. Great Plains Tr. Co. v. Morgan Stanley Dean
Witter & Co., 313 F.3d 305, 313 n.8 (5th Cir. 2002).
Under that standard, the “court accepts ‘all
well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff.'” Martin K. Eby
Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464,
467 (5th Cir. 2004) (quoting Jones v. Greninger, 188
F.3d 322, 324 (5th Cir. 1999) (per curiam)). But “the
tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). To overcome a motion to dismiss, a
plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “Factual allegations
must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations
in the complaint are true (even if doubtful in fact).”
Id. at 555 (citations and footnote omitted).
noted above, Rich brings four common-law tort claims against
the three defendants. This Order addresses each in turn. But
before looking at the specific claims, the Court will
consider Defendant Thomas's argument that he acted as
Patricia's attorney and therefore owed Rich no duty. As
discussed next, the Court agrees with that argument to the
extent Rich attacks Thomas's acts related to
Patricia's estate planning. The remaining allegations
will then be considered separately as to each cause of
Thomas's Duty to Rich
allegations against Thomas fall into two broad categories.
First, the Complaint indicates that Thomas unduly influenced
Patricia related to her estate planning. Second, Rich
contends that Thomas shut Rich out of Patricia's life
after becoming “personally involved.” Compl.
[1-1] ¶ 32. Turning to the first
assertion, Rich generally says Thomas had a “higher
duty because of his professional relationship with Patricia
and with [Rich] in connection with the Regions
lawsuit.” Id. ¶ 39. But the Complaint
does not plausibly allege that Thomas ever represented Rich,
and there seems to be no dispute that he did not. So the
question, in considering the claims related to Thomas's
actions as Patricia's attorney, is whether an attorney
owes a duty of care-much less a higher one-to someone other
than his or her client.
opening memorandum, Thomas cites two Mississippi cases
holding that an attorney has no duty to a client's
adversary because it would create a conflict of interest.
Def.'s Mem.  at 10 (citing James v. Chase
Manhattan Bank, 173 F.Supp.2d 544, 551 (N.D. Miss.
2001); Roussel v. Robbins, 688 So.2d 714, 725 n.4
(Miss. 1996)). He therefore contends that he owed no duty to
Rich. Rich neither addresses Thomas's authority nor
offers countervailing authority on this point, and he instead
relies on the general reasonable-care standard that applies
in most contexts. See Pl.'s Mem.  at 6
(citing McIntosh v. Victoria Corp., 877 So.2d 519,
523 (Miss. Ct. App. 2004)). Thomas's argument is
essentially unrebutted and carries greater weight.
said, Thomas's authority is not in this exact context,
and neither the parties nor the Court has found a Mississippi
case that is substantially similar. Thomas's
conflict-related argument does, however, find some support in
First National Bank of Durant v. Trans Terra
Corp. International, where a lender sued an attorney
related to his work on a title opinion for the borrower. 142
F.3d 802, 805 (5th Cir. 1998). It must be noted that
First National Bank of Durant ultimately
turned on a Texas privity rule that may conflict with
Mississippi Code section 11-7-20. Nevertheless, the policy
addressed in First National Bank of Durant dovetails
with the conflict-of-interest concerns that could preclude an
attorney's duty to an adversary under Mississippi law.
Specifically, the court noted three policy issues:
(1) “potential tort liability to third parties would
create a conflict during the estate planning process,
dividing the attorney's loyalty between his or her client
and the third-party beneficiaries;” (2) the privity
requirement “will ensure that attorneys may in all
cases zealously represent their clients without the threat of
suit from third parties compromising that
representation;” and (3) “[w]ithout this
‘privity barrier' . . . clients would ...