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Walker v. Williamson

United States District Court, S.D. Mississippi, Southern Division

March 6, 2017

SCOTT WALKER, et al. PLAINTIFFS
v.
JIMMY WILLIAMSON, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE.

         This matter is before the Court the Motion for Partial Summary Judgment [396] filed by Plaintiff Steve Seymour, individually and d/b/a Diamond Consulting and/or d/b/a Precision Marketing Group, LLC (“Seymour”); the Motion for Summary Judgment [409] filed by Defendants Cyndi Rusnak and Cyndi Rusnak, PLLC (collectively “Rusnak”); the Motion for Partial Summary Judgment [411] and Motion to Strike Summary Judgment Evidence Offered to Support Precision's Motion for Summary Judgment (“Motion to Strike Precision's Evidence”) [445] filed by Defendant Michael A. Pohl, individually and d/b/a The Law Office of Michael A. Pohl (“Pohl”); the Motion for Partial Summary Judgment [414] and Motion to Strike Evidence Submitted by Pohl in Support of his Motion for Summary Judgment (“Motion to Strike Pohl's Evidence”) [446] filed by Plaintiff Precision Marketing Group, LLC, (“Precision”); and the Motion for Summary Judgment [418] filed by Defendant Jimmy Williamson, individually and/or as Director and President of Jimmy Williamson, P.C. (“Williamson”). After considering the submissions of the parties, the record, and the applicable law, the Court finds the following:

1. Seymour's Motion for Partial Summary Judgment [396] is not well taken and should be denied;
2. Rusnak's Motion for Summary Judgment [409] is not well taken and should be denied;
3. Pohl's Motion for Partial Summary Judgment [411] should be granted in part and denied in part;
4. Precision's Motion for Partial Summary Judgment [414] is not well taken and should be denied;
5. Williamson's Motion for Summary Judgment [418] is not well taken and should be denied;
6. Pohl's Motion to Strike Precision's Evidence [445] should be denied as moot; and
7. Precision's Motion to Strike Pohl's Evidence [446] should be denied as moot.

         I. BACKGROUND

         The current action was commenced on October 18, 2014, by Plaintiffs Scott Walker, individually and d/b/a Maxwell & Walker Consulting Group, LLC, and/or d/b/a Precision Marketing Group, LLC (“Walker”); Kirk D. Ladner, individually and d/b/a The Ladner Group and/or d/b/a Precision Marketing Group, LLC (“Ladner”); Seymour; and Precision (collectively “Plaintiffs”) against Defendants Williamson and Pohl. Plaintiffs claim that Pohl and Williamson joined together in a joint venture or partnership in order to represent Mississippi clients in their claims against British Petroleum (“BP”) in connection with the 2010 Deepwater Horizon oil spill. The two then contracted with Plaintiffs to provide marketing and public relations services for this joint venture.

         Plaintiffs brought suit for breach of contract, conscious or negligent bad faith/breach of good faith and fair dealing, quantum meruit/unjust enrichment, and fraud/fraudulent inducement/ fraudulent misrepresentation. On May 12, 2015, Precision filed a Notice [75] stating that Walker, Seymour, and Ladner had assigned their chose of action and/or interests in this action to Precision. Plaintiffs filed amended complaints[1] in March 2016, for the first time alleging that Defendant Rusnak was part of the joint venture between Pohl and Williams as well.

         II. MOTIONS FOR SUMMARY JUDGMENT [396][409][411][414][418]

         A. Standard of Review

         Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Where the burden of production at trial ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant's case.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (citation and internal quotation marks omitted). The nonmovant must then “come forward with specific facts showing that there is a genuine issue for trial.” Id. “An issue is material if its resolution could affect the outcome of the action.” Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). “An issue is ‘genuine' if the evidence is sufficient for a reasonable [fact-finder] to return a verdict for the nonmoving party.” Cuadra, 626 F.3d at 812 (citation omitted). Where the burden of proof at trial rests on the movant, it “must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in its favor.” Meecorp Capital Mkts. LLC v. Tex-Wave Indus. LP, 265 F.App'x 155, 157 (5th Cir. 2008) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)).

         The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding whether a genuine fact issue exists, “the court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra Club, 627 F.3d at 138. However, “[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citation omitted). Summary judgment is mandatory “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d 759, 766 (5th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

         As discussed at length by this Court in its past orders, Mississippi law is the law that should properly be applied. (See, e.g., Order [103] at pp. 5-10.)

         B. Seymour's Motion for Partial Summary Judgment [396]

         In his Motion for Partial Summary Judgment [396], Seymour seeks for the Court to hold invalid the assignment of his contract rights and chose in action to Precision. In effect, Seymour is asking the Court to enter judgment on a contract dispute that is not currently before it. Seymour has no pending cross-claim against his co-plaintiff Precision, and it is not clear that the Court would have subject matter jurisdiction over such a claim.[1] Because there is no claim for which the Court can issue judgment, partial or otherwise, this motion must be denied.

         A. Rusnak's Motion for Summary Judgment [409]

         Rusnak's arguments in her Motion for Summary Judgment [409] are identical to those brought by her and her fellow defendants in their previous motions to dismiss. Specifically, she argues that there is no evidence of a joint venture between herself, Williamson, and Pohl, and that, in the event that the Court finds sufficient evidence of a joint venture, the purported contract between Defendants and Plaintiffs is unenforceable as a matter of law.

         1. Joint Venture

         Under Mississippi law, a joint venture “exists when two or more persons combine in a joint business enterprise for their mutual benefit with an understanding that they are to share in profits or losses and each to have a voice in its management.” Hults v. Tillman, 480, So.2d 1134, 1142 (Miss. 1985). “The three main questions that are considered in [a joint venture] determination are (1) the intent of the parties, (2) the control question, and (3) profit sharing.” Smith v. Redd, 593 So.2d 989, 994 (Miss. 1991).

         a. Intent

         While actual intent is necessary to find that a joint venture existed, this intent can be implied by the parties' actions. Hults v. Tillman, 80 So.2d 1134, 1143 (Miss. 1985). Rusnak does not dispute that her name appeared on the letterhead of the informational folder distributed by Plaintiffs, nor does she dispute that this folder contained a letter from “The Law Office of Michael A. Pohl.” Though both Williamson and Rusnak maintain that “Williamson & Rusnak” was a “trade name” they were using when, in fact, they were not partners, the Mississippi Rules of Professional Conduct proscribes using names such as this when lawyers are not partners, as they suggest partnership. See Miss. Rules of Prof'l Conduct R. 7.7 cmt. The Court previously found that the letterhead on the informational folder in combination with the references to Pohl was enough to imply a partnership among the three defendants and defeat Rusnak's motion to ...


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