Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Caterpillar Financial Services Corporation v. Turner

United States District Court, N.D. Mississippi, Oxford Division

June 22, 2017

CATERPILLAR FINANCIAL SERVICES CORPORATION PLAINTIFF
v.
STEPHEN RAY TURNER D/B/A TURNER DIRT DEFENDANT STEPHEN RAY TURNER D/B/A TURNER DIRT THIRD PARTY PLAINTIFF
v.
THOMPSON MACHINERY COMMERCE CORPORATION and CATERPILLAR FINANCIAL SERVICES CORPORATION THIRD PARTY DEFENDANTS

          ORDER

          MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE

         This cause comes before the court on the motions of counter-defendants to dismiss the counterclaims filed against them in this action. This court, having considered the memoranda and submissions of the parties, is now prepared to rule.

         This case is, by all appearances, a rather routine collection action, which was originally filed by Caterpillar Financial Service Corporation (“Caterpillar”) against Stephen Ray Turner, d/b/a Turner Dirt (“Turner”), for failure to make the payments required under the lease of certain heavy equipment. Turner initially failed to respond to Caterpillar's complaint, and a default was entered by the clerk against him. However, Caterpillar later agreed to set aside the default after Turner retained counsel in this matter. Turner's new counsel initially mounted a rather aggressive defense, asserting counterclaims against both Caterpillar and Thompson Machinery Commerce Corporation (“Thompson”), a Caterpillar affiliate which sold the equipment at issue.[1]

         In his counterclaims, Turner alleged that some of the equipment at issue in this case had been defectively manufactured by Caterpillar and that Thompson had failed to repair it, rendering them each liable for breach of warranty. In January and February 2017, both Caterpillar and Thompson responded to Turner's counterclaim with motions to dismiss, arguing that he had failed to state a claim upon which relief might be granted. These motions to dismiss Turner's counterclaims on their substantive merits are still pending before this court, but they have since been superseded by the question of whether he intends to prosecute his claims at all. From reviewing the record, it appears that the first doubts in this regard were raised by Turner's own counsel, who filed motions to withdraw based on their client's failure to communicate with them. In a March 3, 2017 motion to withdraw, Turner's then-counsel J. Hale Freeland wrote that:

For the last two months, the undersigned counsel has been unable to communicate with Turner, though attempts have been made through repeated texting, phone calls, emails and letters asking Mr. Turner to communicate. *** The undersigned cannot represent a client he cannot communicate with, and Mr. Turner has not complied with that and his other obligations he made in retaining the law firm.

[Docket entry 51]. Freeland attached to his motion copies of letters he had written to Turner, which referenced numerous other unsuccessful attempts to contact him. In a February 20, 2017 letter, Freeland threatened to withdraw as counsel if Turner did not communicate with him, and he warned his client in bold capital letters that:

PLEASE BE ADVISED THAT NOT HAVING COUNSEL IS LIKELY TO RESULT IN A DEFAULT AGAINST YOU IN THE FULL AMOUNT CATERPILLAR SAYS YOU OWE.

[Docket entry 51, exhibit A at 3].

         In a March 22, 2017 order, Magistrate Judge Percy granted the motion to withdraw, and he specifically warned Turner that his claims were subject to dismissal if he did not express an intent to prosecute them. Specifically, Judge Percy wrote that:

J. Hale Freeland, Beth H. Smith, and the law firm of Freeland Martz, PLLC, are permitted to withdraw as counsel of record for Stephen Ray Turner d/b/a Turner Dirt. No later than April 21, 2017, Turner must do one of the following: (1) retain other counsel, (2) notify the Court that he intends to proceed pro se [that is, to represent himself], or (3) notify the Court that he does not intend to prosecute his counterclaim and/or continue his defense of Cat Financial's claim. Turner is warned that failure to comply with Orders of this Court may result in sanctions, up to and including dismissal of his claim, as failure to comply with this Order or other Orders may lead to a presumption that he has chosen not to proceed with this case.

[Docket entry 56 at 2 (emphasis in original)]. Judge Percy thus set a specific deadline of April 21, 2017 for Turner to clarify his intentions vis a vis his claim.

         Turner failed to respond to this order, and, on April 28, 2017, Judge Percy issued another order continuing a previously-scheduled settlement conference based upon Turner's unexplained silence. In that order, Judge Percy wrote that:

On April 27, 2017, counsel for Cat Financial contacted the Court, on behalf of Cat Financial and Thompson Machinery, via e-mail requesting that the settlement conference be cancelled due to Stephen Ray Turner d/b/a Turner Dirt's (Turner) failure to comply with the Court's March 22, 2017 Order requiring Turner to retain counsel or notify the Court of his intention to proceed pro se, or notify that the Court that he does not intend to prosecute his counterclaim or continue his defense of the claims against him. See Docket 56. The Court has considered Cat Financial and ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.