United States District Court, S.D. Mississippi, Western Division
ORDER AND OPINION
BRAMLETTE UNITED STATES DISTRICT JUDGE.
cause is before the Court on the Court's Order
[Doc. 41');">41');">41');">41');">41');">41');">41');">41] that Plaintiffs Earl and Maxcine
Ross show cause why the remaining counts of their Complaint
should not be dismissed with prejudice. Having considered the
Rosses' response to the Court's Order, U.S. Bank,
N.A.'s opposition to the Rosses' response, and
applicable statutory and case law, and being otherwise fully
informed in the premises, the Court finds as follows:
of a manufactured home sued an employee of the home's
manufacturer and the bank that financed the purchase after
inspecting the home and declaring it
“uninhabitable.” The Court dismissed with
prejudice the portions of the Complaint that advanced legal
theories that could not impose liability on these Defendants
under any conceivable interpretation of the facts as pleaded.
As to the other portions, the Court ruled that the buyers had
not properly pleaded any claims, but offered them the chance
to explain how the defects in their Complaint could be cured.
The Rosses' Manufactured Home Purchase
October 17, 2014, Plaintiffs Earl and Maxcine Ross (the
“Rosses”) bought a manufactured home made by
Platinum Homes, LLC (“Platinum”) from Quality
Homes of McComb, Inc. (“Quality”), a McComb-based
retail-seller. [Doc. No. 1, ¶VI] U.S. Bank, N.A. (“U.S.
Bank”) financed the purchase. [Doc. No. 1, ¶VI]
October 30, 2014, the mobile home was delivered to
Quality's lot in McComb. [Doc. No. 1, ¶VIII] That
same day, the Rosses inspected the home and found it
deficient: it contained “a gap in the ceiling where the
roof did not come together, ” and “sheetrock
[that] had fallen from the wall in the living room.”
[Doc. No. 1, ¶IX] The inspection also revealed an
unpleasant chemical odor. [Doc. No. 1, ¶VIII]
The Rosses Try to Exchange the Home and Rescind the
to swap the home for another, the Rosses visited Quality on
November 15, 2014. [Doc. No. 1, ¶ XII] On the visit, the
Rosses overheard a phone conversation during which Defendant
Harbin, a Platinum manager, said “I am not coming down
there to change out nothing for those niggers.” [Doc.
No. 1, ¶XII] Ultimately, Quality refused to exchange the
home for another. [Doc. No. 1, ¶XIII]
the Rosses called U.S. Bank hoping to rescind their loan
contract. [Doc. No. 1, ¶XV] In late December 2014, the
Rosses spoke with a U.S. Bank employee, explained the
problems with the home, and asked to rescind the contract.
[Doc. No. 1, ¶XV] U.S. Bank declined. [Doc. No. 1,
The Rosses' Suit
April 20, 2017, the Rosses sued Harbin and U.S. Bank for (1)
breach of fiduciary duties; (2) breach of contract; (3)
breach of the implied covenant of good faith and fair
dealing; (4) fraudulent misrepresentation; (5)
“unconscionability”; (6) negligent
misrepresentation; (7) violations of the Magnuson-Moss
Warranty Act (“MMWA”), 15 U.S.C. § 2301 et
seq., the Truth in Lending Act (“TILA”), 15
U.S.C. § 1601 et seq., the Mississippi Consumer
Protection Act (“MCPA”), Miss. Code Ann. §
75-24-5; (8) slander; and (9) civil rights violations under
42 U.S.C. § 1983.
response, Harbin and U.S. Bank moved to dismiss [Docs. 9, 27]
the Complaint under Federal Rule of Civil Procedure 12(b)(6).
Court partially granted the motions, dismissing with
prejudice all counts except:
• Count I - breach of contract;
• Count II - breach of fiduciary ...