Murray v. Sevier, Civil Action No. 94-D-1266-N.
| Decision Date | 04 August 1997 |
| Docket Number | Civil Action No. 94-D-1266-N. |
| Citation | 993 F.Supp. 1394 |
| Parties | Bradley E. MURRAY, Plaintiff, v. Helen SEVIER, et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
Bobby Lee Cook, Summerville, GA, Mark R. Hutton, Wichita, KS, Robert Blakey, Notre Dame, IN, Randall E. Fisher, Wichita, KA, for Plaintiff.
Jack H. Watson, Jr., Atlanta, GA, Diane S. Worth, Wichita, KS, Lisa W. Borden, Birmingham, AL, N. Lee Cooper, Birmingham, AL, Patricia T. Mandt, Birmingham, AL, Lee H. Zell, Birmingham, AL, Patricia Clotfelter, Birmingham, AL, Richard Jordan, Montgomery, AL, for Defendants.
DE MENT, District Judge.
This matter is before the court on a motion to dismiss filed on September 5, 1995, by Defendants Helen Sevier ("Sevier"), B.A.S.S., Inc. ("BASS Inc."), Jemison Investment Company, Inc. ("Jemison"), Karl Dabbs ("Dabbs"), and James Davis ("Davis") and a motion to dismiss filed by Defendant Ray W. Scott ("Scott")1 on September 5, 1995. Plaintiff Bradley E. Murray ("Murray")2 filed a consolidated response to these motions on September 21, 1995,3 a supplemental memorandum in support of his consolidated response on October 16, 1995, and a surreply on October 24, 1995. On October 10, 1995, Scott filed a reply brief and on October 30, 1995, Scott filed a supplemental reply brief. As part of his September 25, 1995 consolidated response to Defendants' motions to dismiss, Murray also included a motion for judgment as a matter of law. Scott responded to Plaintiff's motion on October 10, 1995. Plaintiff also filed a motion to transfer on September 21, 1995, asking the court to transfer this matter back to the United States District Court of Kansas. Defendants Sevier, Jemison, Dabbs, and Davis filed a memorandum in opposition to Plaintiff's transfer motion on October 10, 1995. After careful consideration of the arguments of counsel, relevant case law, and the record, the court finds that Defendants' motions to dismiss and Murray's motion to transfer are due to be denied.
This case was spawned by the investigative efforts of "photojournalist" Beau Cabell ("Cabell") and his "attorney-friend" Paul Weeks ("Weeks"). Cabell claims that during the Fall of 1988 he became interested in writing a story about bass fishing for his employer, the Macon Telegraph. He claims that he joined Bass Anglers Sportsman Society ("BASS")4 in the Spring of 1989 as part of his investigative efforts. Not long after joining BASS, Cabell claims that he was struck by Scott's claim that he "owned" BASS. Cabell claims to have consulted Weeks in an effort to resolve these concerns. Based upon Weeks' legal analysis, Cabell decided to continue his investigation in an effort to produce an article or book concerning BASS, Scott, and the disputed claims of ownership.5
While Cabell has apparently not yet published a book, the Macon Telegraph apparently published his article on March 15, 1992. On February 14, 1992, Plaintiffs Larry Neff and Bradley Murray ("Murray") filed their original complaints in the United States District Court for the District of Kansas. This filing began a twisted tale replete with all the intrigue, plot twists, self-promotion and infighting normally present in a popular novel.6 The case began with the Kansas court's finding that the Plaintiffs had improperly shopped for a judge and has continued to the sounds of constant bickering and pointed attacks by counsel for both sides. Following its dismissal of the Plaintiffs' first, second, and third amended complaints, the Kansas court, over Murray's strenuous objections,7 transferred this matter to the United States District Court for the Middle District of Alabama by virtue of an order entered June 8, 1994.
While the parties' filings have often muddied the waters, the substance of Murray's claims are relatively straightforward. Murray on behalf of himself and the approximately half-million members of BASS, an unincorporated association, seeks to recover funds which he alleges have been either converted or stolen by the Defendants from BASS members. In his Fourth Amended Complaint Murray alleges that Scott originally founded BASS in 1967 as an unincorporated association and then in 1969 under the laws of Alabama incorporated a separate entity known as BASS, Inc.8 Murray alleges that these similarly named entities allowed Scott to play a "shell game" on BASS members. Murray contends that Scott convinced prospective members that they were joining a society devoted to promoting bass fishing, conservation, and youth fishing when they were actually joining BASS, Inc. and Scott was using the corporate form to siphon off members' dues for his personal benefit. Murray contends that Scott continued to play this shell game until 1986 when he "sold" BASS and BASS, Inc. to a group of former employees and investors.9 He contends that Helen Sevier ("Sevier"), a long-time employee and business associate of Scott, took over direction of BASS and BASS, Inc., following the sale. According to Murray, Dabbs serves as a director, vice-president, treasurer and secretary of BASS, Inc. Murray appears to allege that Jemison and Davis play a more passive role and are primarily investors in Sevier's 1986 purchase of BASS and BASS, Inc. Murray contends that Sevier, Dabbs, Davis, and Jemison are the only shareholders in BASS, Inc.
Murray argues that Scott and his successors have committed several torts against BASS members. In his Fourth Amended Complaint, Murray claims that the Defendants breached their fiduciary duties to BASS members by allowing members' dues and other revenues to be diverted from the members into the pockets of the Defendants. Murray also claims that the Defendants committed fraud against BASS members by making numerous misrepresentations in an effort to further their alleged scheme and avoid member detection of this scheme. Finally, Murray contends that the Defendants fraudulently concealed from BASS members material facts in an effort to further their scheme and avoid possible detection.10
In their motions to dismiss Defendants argue that all of Murray's claims are barred by the statute of limitations and/or the rule of repose. Further, the Defendants argue that the equitable relief requested by Murray is barred by the equitable doctrine of laches. Defendants reiterate their argument that Federal Rule of Civil Procedure 41 requires that Murray's Fourth Amended Complaint be dismissed. They also contend that they have not been properly served in this action.
In support of their motions to dismiss, Defendants argue that Murray's claims of breach of fiduciary duty, fraud, and fraudulent concealment are each governed by a two-year statute of limitation under § 6-2-38 of the Alabama Code. They claim that Murray and other BASS members discovered or should have discovered the alleged wrongdoing more than two years prior to the filing of this action. The Defendants contend that the seminal events in this story including the incorporation of Bass Anglers Sporting Society of America, Inc. in 1969, changing the name of Bass Anglers Sporting Society of America, Inc. to BASS, Inc. in 1980, and Scott's sale of BASS to Sevier, Dabbs, Jemison, and Davis in 1986 were all public events which either did or should have put all BASS members on notice of the alleged wrongdoing. Therefore, according to the Defendants, the two-year statute of limitations began to run either twenty-three years, twelve years, or at least six years prior to the filing of Murray's complaint in 1992. Pursuant to this line of reasoning, the two-year statute of limitations had run well prior to Murray's 1992 complaint.
Scott also argues that Murray's claims are absolutely barred under Alabama's common law doctrine of repose.11 Scott claims that this rule operates to bar all claims that are based on conduct more than twenty years old. If the court finds that the Defendants' motion to dismiss is due to be denied, Scott requests the court to order Murray to replead his complaint because the complaint is excessively complex, contains irrelevant material, and presents extensive evidence. Dabbs, Jemison, and Davis also allege that Murray has failed to properly serve them as required by the Federal Rules of Civil Procedure and that Murray failed to plead his action under Federal Rule of Civil Procedure 23.2.12
In response to the Defendants' two-dismissal argument under Rule 41,13 Murray contends that this argument has been rejected on two earlier occasions by the Kansas court and is now a moot issue. Murray concedes that he mistakenly omitted mention of Rule 23.2 from his Fourth Amended Complaint but argues that his complaint does properly set forth allegations required by the Kansas court pursuant to its interpretation of Rule 23.2. He contends that all Defendants to this action have been properly served and that he has submitted "absolute proof that all defendants in this case have been served process."
As to the statute of limitations and rule of repose issues, Murray argues that the applicable statute of limitations has not yet begun to run due to the Defendants' alleged fraudulent concealment of essential information. Murray also argues that the statutory periods have been tolled due to Defendants' alleged fiduciary role in relation to BASS members. Finally, Murray argues that his claims for equitable relief are not controlled by any statute of limitations.
The Defendants' motions to dismiss urge dismissal on a variety of grounds. However, the court will divide its discussion into two sections: (1) issues previously raised in the Kansas portion of this litigation and (2) issues newly raised. Defendants raised their two-dismissal argument during the Kansas portion of this litigation and now raises it again. Likewise, Murray, who strenuously objected to Defendants' motions to transfer venue to the Middle District of...
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Murray v. Sevier, CIV. A. 94-D-1266-N.
...to the United States District Court for the Middle District of Alabama pursuant to 28 U.S.C. § 1404(a)); see also Murray v. Sevier, 993 F.Supp. 1394, 1399 (M.D.Ala.1997) (refusing to overturn the transferor court's decision). Additionally, the Parties have not contested personal jurisdictio......
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...("We recognize that because laches is a creature of equity the trial judge enjoys a wide area of discretion."); Murray v. Sevier, 993 F. Supp. 1394, 1404 (M.D. Ala. 1997) ("Laches is an equitable doctrine committed to the sound discretion of the trial court.") (citation omitted). In exercis......
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