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Nevins v. Jelliffe

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

March 15, 2017

MARJORIE NEVINS and MELANIE JELLIFFE PLAINTIFFS
v.
MARTIN JELLIFFE; JELLCO ENTERPRISES, INC. d/b/a ADVANTACLEAN; and BANCORP SOUTH, INC. DEFENDANTS

          OPINION AND ORDER

          WILLIAM H. BARBOUR, JR. UNITED STATES DISTRICT JUDGE

         This cause is before the Court on two related Motions. Having considered the pleadings, the attachments thereto, as well as supporting and opposing authorities the Court finds:

         Plaintiffs' Motion for Leave to File Second Amended Complaint is not well taken and should be denied.

         The Motion of Defendants, Martin Jelliffe and Jellco Enterprises, Inc., to Dismiss is well taken and should be granted.

         I. Factual Background and Procedural History

         Marjorie Nevins (“Nevins”) and Melanie Jelliffe[1] allege that Nevins and Defendant, Martin Jelliffe (“Jelliffe”), jointly owned multiple accounts that required signatures from all owners before withdrawals from the accounts could be made. The subject accounts are: (1) Raymond James Account No. ---6409; (2) Morgan Keegan Account No. ---0805; and (3) Morgan Keegan Account No. ---0441. Plaintiffs also allege that they were joint owners of BancorpSouth Account No. ---927-3.

         Plaintiffs allege that between 2008 and 2015, Jelliffe and Jellco Enterprises, Inc., d/b/a Advantaclean (“Advantaclean”), fraudulently withdrew approximately $110, 000 from the Raymond James Account, and $250, 000 from the Morgan Keegan Accounts without Nevins's authorization or her authentic signature. Plaintiffs also allege that between 2011 and 2015, Jelliffe transferred approximately $200, 000 from the BancorpSouth Account. Finally, Plaintiffs allege that between 2009 and 2015, BancorpSouth, Inc. (“BancorpSouth”), accepted for deposit from Jelliffe checks that had been fraudulently drawn on the Raymond James and Morgan Keegan Accounts. All of these acts were allegedly concealed from Plaintiffs.

         Plaintiffs filed suit in this Court against Jelliffe, Advantaclean, and BancorpSouth. In their First Amended Complaint, Plaintiffs allege that BancorpSouth was negligent and breached the banking agreement and corresponding warranties between it and Plaintiffs by “depositing and/or paying checks not properly payable or authorized by all owners of the accounts” on which they were drawn. See Am. Compl. ¶¶ 21, 24 and 27. Plaintiffs also allege claims of conversion and unjust enrichment against BancorpSouth, Jelliffe, and Advantaclean, which are predicated on allegations that these defendants “fraudulently converted funds” from them by making, issuing, depositing, and/or paying checks “without authentic signatures or authority.” Id. at ¶¶ 30, 33. Through their Amended Complaint, Plaintiffs seek actual damages in the amount of $360, 000, punitive damages, and a constructive trust.

         After the deadline for filing amended pleadings expired, Jelliffe and Advantaclean filed a Motion to Dismiss under Rules 12(b)(6) and 9(b) of the Federal Rules of Civil Procedure. Through their Motion, Jelliffe and Advantaclean seek dismissal of Plaintiffs' claims that are predicated on “alleged fraudulent or unauthorized transactions” that occurred prior to June 21, 2013.[2]The grounds for dismissal are (1) any claim arising before June 21, 2013, is barred by the applicable statute of limitations, and (2) Plaintiffs did not plead fraudulent concealment with the required specificity as would permit tolling of the limitations period. In response, Plaintiffs seek leave to file a Second Amended Complaint to cure the existing pleading deficiencies. The Court now considers both Motions.

         II. Discussion

         A. Motion to Amend

         Plaintiffs have moved to amend their complaint under Rule 15 of the Federal Rules of Civil Procedure, which provides, in relevant part:

A party may amend its pleading once as a matter of course ...

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