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McKlemurry v. Thomas

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

November 28, 2018

RICKY McKLEMURRY as co-executor for the estate of Louise McLemurry; RONALD McKLEMURRY as co-executor for the estate of Louise McLemurry; and PHILLIP McKLEMURRY as co-executor for the estate of Louise McLemurry. PLAINTIFFS
v.
J. DEWAYNE THOMAS; MICHAEL G. POND; JOHN GADOW; and JOHN DOES A-Z. DEFENDANTS

          ORDER SUBSTITUTING PLAINTIFFS

          HENRY T. WINGATE, UNITED STATES DISTRICT COURT JUDGE.

         BEFORE THIS COURT are the following motions: Motion for Settlement to be Paid into the Estate of Louise McKlemurry [Docket no.175]; Motion to Substitute Party [Docket no. 178]; Amended Motion to Substitute Party [Docket no. 182]; Plaintiffs' Motion to Enforce Settlement Agreement and Impose Sanctions [Docket no. 183]; and Motion to Withdraw [183] [Docket no. 184].

         On October 10, 2018, this court set a hearing for Monday, October 29, 2018, at 1:30 p.m. on all outstanding motions. Counsel for the defendants appeared: Scott Murray; and Silas McCharen. Louise McKlemurry, the original plaintiff in this action, unfortunately died in September, 2011. [Docket no. 152]. After her death, Louise McKlemurry's sons hired Attorney Charles V. Homan, Jr., to represent them as they continued to pursue Louise McKlemurry's lawsuit. This court granted Ricky McKlemurry's motion to substitute plaintiff on May 21, 2012. [Docket no. 162]. Subsequently, the parties reached a settlement of all outstanding issues and, on March 12, 2013, this court dismissed this lawsuit without prejudice. [Docket no. 172].

         Plaintiff Ricky McKlemurry filed his instant motions pro se seeking payment of the settlement funds into the estate of Louise McKlemurry.

         During this court's hearing on Monday, October 29, 2018, counsel for the defendants appeared. The pro se plaintiff and his co-movants did not appear because they had not received notice of the hearing, which notice had been sent to Attorney Homan.[1] The court then attempted to contact Ricky McKlemurry through the only telephone number that it had and left a voicemail directing Ricky McKlemurry to contact the court. Vivian McKlemurry, Ricky McKlemmury's wife, called this court back and the court teleconferenced her into the hearing.

         Counsel for the defendants informed the court that they had no opposition to plaintiff's Amended Motion to Substitute Party[2] [Docket no. 182], but that they opposed plaintiff's first Motion to Substitute Party[3] [Docket no. 178]. Accordingly, this court granted Plaintiff's Amended Motion to Substitute Party [Docket no. 182] and denied plaintiff's first Motion to Substitute Party [Docket no. 178].

         The court then directed the parties to discuss settlement and report the success of such no later than Friday, November 16, 2018.[4] The parties are to report such in the following ways: defendants are to email the court with their report; and plaintiffs are to mail a letter to the court at 501 E. Court St., Ste. 6.750, Jackson, MS 39201. As a part of their response, Plaintiffs are hereby directed to provide telephone numbers and addresses at which this court may contact them in the future.

         IT IS, THEREFORE, ORDERED that plaintiff's Amended Motion to Substitute Party [Docket no. 182] is hereby GRANTED and that Ronald McKlemurry and Phillip McKlemurry are hereby ADDED as plaintiffs to this matter.

         IT IS FURTHER ORDERED that plaintiff's Motion to Substitute Party [Docket no. 178] is hereby DENIED.

         IT IS FURTHER ORDERED that plaintiff's Motion to Withdraw [183] [Docket no. 184] is hereby GRANTED and that plaintiff's Plaintiffs' Motion to Enforce Settlement Agreement and Impose Sanctions [Docket no. 183] is hereby WITHDRAWN.

         IT IS FINALLY ORDERED that plaintiff's Motion for Settlement to be Paid into the Estate of Louise McKlemurry [Docket no.175] is HELD IN ABEYANCE pending the outcome of the settlement negotiations of the parties. The parties are hereby ordered to report the status of settlement negotiations no later than November 30, 2018.

         SO ORDERED.

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