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Brown v. Del Pozo

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

March 21, 2019

JIM BROWN PLAINTIFF
v.
CESAR DEL POZO DEFENDANT

          ORDER

          SHARION AYCOCK UNITED STATES DISTRICT JUDGE

         Jim Brown originally filed his Complaint [2] in the Mississippi Circuit Court of Clay County on July 18, 2017, asserting claims for alienation of affection, and intentional or negligent infliction of emotional distress against Cesar Del Pozo. Del Pozo, was served on October 6, 2018, and removed the action to this Court on November 5, 2018. Now before the Court is the Defendant's Motion to Dismiss [8] for improper service of process pursuant to Federal Rule of Civil Procedure 12(b)(5), or in the alternative, as a sanction for the Plaintiff's filing of a fraudulent affidavit.

         Background and Procedural History

         The Plaintiff filed his Complaint in Circuit Court on July 18, 2017. On November 13, 2017, within the time provided for under Mississippi Rule of Civil Procedure 4(h), the Plaintiff filed a motion for extension of time to serve the Defendant. The Circuit Court granted the Plaintiff's motion for extension of time and allowed the Plaintiff an additional 120 days, ending on March 18, 2018, to serve the Defendant. On January 22, 2018, the Plaintiff submitted a proof of service document indicating that the Defendant was served with process on December 16, 2017. The Circuit Court subsequently entered an order of default against the Defendant on January 29, 2018.

         On March 7, 2018, the Defendant made a special appearance in Circuit Court and filed a motion to set aside the entry of default. On March 12, 2018, the Defendant filed a motion to dismiss for improper service of process, or in the alternative, for the Plaintiff's filing of a fraudulent affidavit. In his motion before the Circuit Court the Defendant argued that the Plaintiff submitted a false proof of service stating that the Defendant was served on December 16, 2017. The Defendant submitted an affidavit stating that he was in California on December 16, 2017 and was not served because he was not at his residence to receive process. In response to the Defendant's affidavit, the Plaintiff secured an affidavit from his process server, Richard Allen, confirming that he served the Defendant on December 16, 2017, despite the Defendant's contention that he was out of the state on that day.

         On April 25, 2018, the Defendant provided Allen a copy of his affidavit, plane ticket, and receipts showing that he was in California on December 16, 2017. After reviewing the material, Allen submitted a second affidavit stating that if he had been provided with that information, he would not have executed the first affidavit.

         The Circuit Court held a hearing on the Defendant's motions on July 27, 2018. The Circuit Court Judge issued a ruling from the bench denying the Defendant's motion to dismiss and finding good cause to allow the Plaintiff an additional 120 days to re-serve the Defendant.[1] It is undisputed that on October 6, 2018, the Defendant was served with process.

         The Defendant then filed his Notice of Removal [1] in this Court on November 5, 2018. On December 10, 2018, the Defendant filed his Motion to Dismiss [8]. This Motion not only contains the same arguments, but is in fact virtually identical to the motion denied in state Circuit Court on July 27, 2018.

         Procedural Posture

         Pursuant to 28 U.S.C. § 1450, “[w]henever any action is removed from a State court to a district court of the United States . . . all injunctions, orders and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court.” By ensuring these orders do not lapse upon removal, the statute facilitates the federal court taking the case up “where the state court left if off.” Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1304 (5th Cir. 1998) (citations omitted). In other words, “[t]he federal court accepts the case in its current posture as ‘though everything done in state court had in fact been done in the federal court.'” Id. at 1303 (quoting Savell v. Southern Ry., 93 F.2d 377, 379 (5th Cir. 1937)).

         “Accordingly, where as in the present case the state court's ruling is purely interlocutory, it remains subject to reconsideration just as it had been prior to removal.” Nissho-Iwai American Corp., 845 F.2d at 1303 (citing General Investment Co. v. Lake Shore & Michigan Southern Ry., 260 U.S. 261, 267, 43 S.Ct. 106, 67 L.Ed. 244 (1922). Because the Circuit Court's order is transformed into an order of this Court, the Court may review the Defendant's Motion [8] just as it would any other interlocutory order entered by this Court. See 28 U.S.C. § 1450. Given the posture of the case, the Court will construe the Defendant's Motion to Dismiss [8] instead as a motion for reconsideration pursuant to Federal Rule of Civil Procedure 54(b).[2]

         Standard of Review

         Where a party seeks reconsideration of a non-final interlocutory order, the proper course is to consider the motion pursuant to Federal Rule of Civil Procedure 54(b), which provides that such an order “may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.” Fed.R.Civ.P. 54(b); Jackson v. City of Atlanta, Tex., 73 F.3d 60, 62 (5th Cir. 1996) (noting that a motion to dismiss is not a final decision); see also Wesco Insurance Co. v. Archer Landscape Group, LLC, No. 1:16-CV-165-DMB, 2018 WL 2917371, *2 (N.D. Miss. Jun. 11, 2018) (noting that an order denying a motion to dismiss is not a final decision because such orders ensure that litigation will continue). “The standard of review for reconsideration of interlocutory orders is ‘as justice requires.'” Lexington Insurance Co. v. ACE American Insurance Co., 192 F.Supp.3d 712, 714 (S.D. Tex. Jun. 14, 2016). “Underlying a motion for reconsideration is the ‘caveat that, where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again.'” Id. (quoting Judicial Watch v. Dept. of Army, 466 F.Supp.2d 112, 122 (D.D.C. Dec. 12, 2006).

         Given the considerable discretion district courts have in deciding whether to grant a motion to reconsider, the Court will “consider whether there is any legitimate reason to revisit its earlier determinations and weigh those reasons against the interest of judicial economy, including the interest of winnowing and defining the issues that may eventually be considered at trial.” Livin ...


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