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Franklin Squires Complaint (070424) - Motion for Summary Judgment

Franklin Squires Complaint (070424) - Motion for Summary Judgment

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Motion to dismiss amended complaint (or, in the alternative, motion for summary judgment) as Lexington Insurance was never served papers in the required 120 days and Plaintiff has failed to make a case upon which relief can be granted. Additionally, Defendants demand Plaintiff come forward to prove claim that he "negotiated a deal... and turned all paperwork over to FranklinSquires".

Whole lot of legal mumbo jumbo, but the interesting part for me was the claim that the Plaintiff needed a real estate license in the state of Mississippi to negotiate a purchase contract.
Motion to dismiss amended complaint (or, in the alternative, motion for summary judgment) as Lexington Insurance was never served papers in the required 120 days and Plaintiff has failed to make a case upon which relief can be granted. Additionally, Defendants demand Plaintiff come forward to prove claim that he "negotiated a deal... and turned all paperwork over to FranklinSquires".

Whole lot of legal mumbo jumbo, but the interesting part for me was the claim that the Plaintiff needed a real estate license in the state of Mississippi to negotiate a purchase contract.

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Published by: CourtWatch on Mar 02, 2008
Copyright:Public Domain

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12/18/2012

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF MISSISSIPPIJACKSON DIVISIONNICHOLAS COUGHLINPLAINTIFFVS.CIVIL ACTION NO. 3:06CV288-HTW-JCSFRANKLINSQUIRES COMPANIES, LLC et al.DEFENDANTSMOTION TO DISMISS AMENDED COMPLAINT OR, IN THE ALTERNATIVE,MOTION FOR SUMMARY JUDGMENT
COME NOW Defendants C. Rick Koerber ( “Koerber”), FranklinSquires Companies, LLC(“FSC”) and Hill Erickson, LLC(“HE”), by counsel, and pursuant to F.R.C.P. 12(b)(6) and/or 56files this their Motion to Dismiss Amended Complaint or, In the Alternative, Motion for SummaryJudgment in relation to the claims of Plaintiff Nicholas Coughlin (“Coughlin”) and in support thereof state the following:1.On or about July 5, 2006, Koerber filed a dismissal motion in relation to Coughlin’sinitial complaint pursuant to F.R.C.P. 12(b)(6). Koerber’s motion and rebuttal in support of thedismissal motion, including any exhibits thereto, are incorporated herein by reference pursuant toF.R.C.P. 10.2.On or about July 5, 2006, FSC and HE likewise filed a dismissal motion in relationto Coughlin’s initial complaint pursuant to F.R.C.P. 12(b)(6). The motion, supporting memorandumand rebuttal in support of the dismissal motion, including any exhibits thereto, of FSC and HE areincorporated herein by reference pursuant to F.R.C.P. 10.3.After the briefing schedule was completed on the dismissal motions of theDefendants, Coughlin sought leave to amend his complaint. Koerber, FSC and HE opposedCoughlin’s motion on futility grounds. The Response to Motion for Leave to File Amended
Case 3:06-cv-00288-HTW-LRA Document 53 Filed 04/24/2007 Page 1 of 12
 
-2-Complaint of Koerber, FSC and HE is incorporated herein by reference pursuant to F.R.C.P. 10.4.Despite the opposition of Koerber, FSC and HE to Coughlin’s motion for leave toamend complaint, the Court granted Coughlin’s motion. Thereafter, Koerber, FSC and HE filed theirAppeal of Magistrate Judge’s Decision and motion to stay pending appeal both of which areincorporated herein by reference pursuant to F.R.C.P. 10.5.On October 19, 2006, Coughlin filed his Amended Complaint, which added HE’sinsurer, Lexington Insurance Company (“Lexington”), as a defendant and added additional theoriesand/or claims that failed to state a claim against Koerber, FSC and HE. (See Coughlin’s AmendedComplaint at paras. 44 and 45 – allegations/claims regarding Lexington). Thereafter, on November2, 2006, Koerber, FSC and HE filed their answer thereto. Both of such pleadings are incorporatedherein by reference pursuant to F.R.C.P. 10.6.Despite Coughlin’s Amended Complaint adding Lexington as a defendant, Coughlin,on information and belief, never served Lexington with process as Lexington has never filed aresponsive pleading to the complaint nor has Coughlin filed a proof of service related to Lexingtonpursuant to F.R.C.P. 4(l). Pursuant to F.R.C.P. 4(m), Coughlin had until February 16, 2007, the onehundred and twentieth day following the date Coughlin filed his Amended Complaint, within whichto serve Lexington with a summons and a copy of Coughlin’s Amended Complaint. Since Coughlinfiled no motion to extend the time for service and demonstrated no “good cause” for his failure todo so within the 120 day time period provided by F.R.C.P. 4(m), Coughlin’s Amended Complaintas against Lexington, including the claims related thereto, are due to be dismissed.7.For the purpose of a motion to dismiss pursuant to F.R.C.P. 12(b)(6), the allegationsof Coughlin’s Amended Complaint must be taken as true.
Fernandes-Montes v. Allied Pilots Assoc.
,
Case 3:06-cv-00288-HTW-LRA Document 53 Filed 04/24/2007 Page 2 of 12
 
-3-987 F. 2d 278, 284 (5
th
Cir. 1993). However, dismissal under Rule 12(b)(6) is proper where thepleadings on their face reveal that the plaintiff can prove no set of facts that would entitle theplaintiff to the requested relief.
Garrett v. Commonwealth Mort. Corp. of America
, 938 F. 2d 591,594 (5
th
Cir. 1991). To the extent the Court relies upon the matters outside the pleadings referred toherein by Koerber, FSC and HE, including the affidavits of Judy Wooten Evans and Brian P. Cronin,the instant motion is converted to a summary judgment motion under F.R.C.P. 56. F.R.C.P. 12(b).In the event the summary judgment standard applies to all or some of the claims asserted inCoughlin’s Amended Complaint and/or the arguments made by Koerber, FSC and HE in relationthereto, there are no genuine issues as to any material fact and Koerber, FSC and HE are entitled to judgment as a matter of law. As will be demonstrated herein, the claims set forth in Coughlin’sAmended Complaint fail as a matter of law or, in the alternative, there are no legitimate disputedquestions of material fact as to Coughlin’s claims and Koerber, FSC and HE are entitled to a judgment in their favor as a matter of law.8.Brief Summary of Factual Allegations in Coughlin’s Amended Complaint Coughlin alleges that he was an agent of FSC, that he completed a FSC training course and becamea “FRSE representative” and that, by virtue of becoming a FRSE representative, he was entitled toa twenty-five percent commission on any property he located for FSC and which FSC purchased.(Coughlin’s Amended Complaint at paras. 9, 15,and16). Coughlin further alleges that, in connectionwith his agency with FSC, Coughlin approached Mr. Jeff Brantley (“Brantley”) about purchasing hisClinton, MS home (“Brantley Property”). Coughlin’s Amended Complaint at para. 17. Coughlin alsoalleges that he “
negotiated a deal with Jeff Brantley for the sale of his home
” and that FSCsubsequently purchased the Brantley Property through HE, an entity Coughlin alleges is under the
Case 3:06-cv-00288-HTW-LRA Document 53 Filed 04/24/2007 Page 3 of 12

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