Parker v. Byrd & Wiser
| Decision Date | 29 March 1996 |
| Docket Number | Civil Action No. 3:95-cv-31WS. |
| Citation | 947 F.Supp. 245 |
| Parties | Cecil Alton PARKER, James E. Parker, Jr., Janice Honeycutt, Deborah Broxson, the Beverly A. Parker Revocable Trust, Through Beverly A. Parker, Trustee, Beverly A. Parker, Individually, and James E. Parker, Sr., Plaintiffs, v. BYRD & WISER, A Partnership, Nicholas Van Wiser, Individually and as a Partner, Dan Livingston, Robert L. Burklow, Eddie R. Burklow, Melvin A. Burklow, James Wilson and John Does 1 Through 15, Defendants. |
| Court | U.S. District Court — Southern District of Mississippi |
Albert D. Malone, Malone & Wright, Ridgeland, MS, for plaintiffs.
William L. McDonough, Jr., Bryant, Clark, Dukes, Blakeslee, Ramsay & Hammond, Gulfport, MS, for Nicholas Van Wiser, Individually, A Partnership, all defendants.
Robert A. Miller, Butler, Snow, O'Mara, Stevens & Cannada, Jackson, MS, Louis B. Lanoux, Watkins & Eager, Jackson, MS, Dan Livingston, Partner, Robert L. Burklow, Eddie R. Burklow, Melvin A. Burklow, James Wilson.
Before the court are the defendants' motions asking this court to dismiss the plaintiffs' lawsuit. Filed pursuant to Rules 12(b)(1) and 12(b)(6),1 defendants' motions respectively assert that plaintiffs' complaint lacks subject matter jurisdiction and fails to state a claim upon which relief can be granted. At issue here is the reach of § 1983,2 Title 42 U.S.C., the alleged juridical basis for plaintiffs' complaint. On January 21, 1992, defendants, a Mississippi law firm and its constituent members, filed a civil lawsuit in a Mississippi state court on behalf of certain creditors of James E. Parker, Sr., against the plaintiffs herein, all Florida residents, accusing the plaintiffs herein of having engaged in fraudulent conveyances of oil and gas lease interests. According to defendants' state court complaint, James E. Parker, Sr., conveyed his oil and gas lease interests in Mississippi wells to members of his family in order to avoid outstanding judgments owed by Parker to the creditors in Florida. This, according to defendants' state court complaint, violated Mississippi's fraudulent conveyance statute, § 15-3-33 of the Mississippi Code.
Aggrieved at being made defendants in the Mississippi state court action, plaintiffs herein instituted this lawsuit against the creditors and the defendant law firm and one of its members pursuant to § 1983. Urging the court to dismiss this action in its entirety, defendants herein, by their motions presently before the court, aver that they are not "state actors" as required by § 1983, and, contrary to plaintiffs' arguments, that their having utilized state procedures for filing a complaint, summons, lis pendens and notice of depositions does not convert them into "state actors." Although plaintiffs herein offer argument opposed to defendants' position, this court agrees with defendants herein and hereby dismisses this lawsuit. The court's reasoning is set out below.
Dan Livingston, Melvin A. Burklow, Robert L. Burklow, Eddie R. Burklow, and James Wilson (hereinafter "the creditors"), all defendants in the lawsuit before this court, sued James E. Parker, Sr., in the State of Florida on claims of unpaid debts. Eventually, the creditors obtained a favorable judgment. Thereafter, say the creditors James E. Parker, Sr., conveyed his oil and gas lease interests in Mississippi to members of his family. Convinced that Parker undertook these conveyances in order to avoid their execution of judgment against the lease interests to satisfy the outstanding judgment, the creditors hired Nicholas Van Wiser of the Mississippi law firm of Byrd & Wiser to challenge the conveyances and to pursue collection of their judgments in Mississippi. Persuaded that § 15-3-3 (see footnote 3) of the Mississippi Code lent legal substance to the creditors' contentions, on January 21, 1992, Attorney Wiser filed Civil Action No. 9131 in the Chancery Court of Jefferson Davis County, Mississippi.
After filing the state court action, Wiser then filed a lis pendens4 notice in the records of the Chancery Clerk of Jefferson Davis County. Apparently, Tesoro Petroleum, an operator of an oil and gas well on the lease property in question, found out about the creditors' lawsuit either during a routine check of the land records in Jefferson Davis County or otherwise. Fearful that he might be paying the lease proceeds to the wrong person or parties, the operator then ceased paying lease proceeds either to James E. Parker, Sr., or to the Parker family members, deciding instead to deposit the proceeds directly into court.
Subsequently, James E. Parker, Sr., filed a Chapter 7 bankruptcy petition, Case No. 94-04020, in the United States Bankruptcy Court for the Northern District of Florida. As routinely done, the bankruptcy court imposed an automatic stay5 relative to any lawsuits involving Parker. Eventually Parker was adjudicated bankrupt, and the automatic stay in that bankruptcy proceeding was lifted with regard to the fraudulent conveyance lawsuit in Mississippi. After that, the creditors were permitted to pursue that litigation in order to restore title to the oil and gas interests in James E. Parker, Sr., to collect the creditors' respective judgments, and to preserve any remaining proceeds after payment of the judgments for the benefit of the bankruptcy estate.6
Sometime thereafter, prior to the resolution of the dispute between the parties in the state court action, the Parkers (defendants in the state court action) filed this federal civil lawsuit against the law firm of Byrd and Wiser, its partner Nicholas Van Wiser, and the creditors. As earlier mentioned, the plaintiffs herein are all family members of James E. Parker, Sr. Contending that their cause of action properly lies against the defendants herein under § 1983, plaintiffs seek compensatory damages, punitive damages, attorney fees and costs.
The district court has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). Motions under Rule 12(b)(6) of the Federal Rules of Civil Procedure address the sufficiency of pleadings. The court's inquiry essentially is limited to the contents of the complaint and pleadings. Clark v. Tarrant County, Texas, 798 F.2d 736, 745 (5th Cir. 1986). Dismissal pursuant to Rule 12(b)(6) is granted only where it appears beyond doubt that the plaintiffs could prove no set of facts in support of their claim which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir.1988); Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir.1981).
Section 1983 provides a cause of action to individuals who have been deprived of a federally protected right by a person acting under "color of state law," West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988). The traditional definition of "state action" requires the defendant to exercise power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941).
More recent cases, employing a two-step analysis, indicate that private conduct "fairly attributable to the state" also may be actionable under § 1983. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982); Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). The two-step analysis is as follows: first, the court must ascertain whether the alleged constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority. Lugar, 457 U.S. at 937-42, 102 S.Ct. at 2754-56; secondly, the court must determine whether the private party could be fairly described as a state actor. Lugar, 457 U.S. at 939-42, 102 S.Ct. at 2755-56. Relative to this second factor, courts have applied different tests to analyze the relationship between private parties and state authorities. Lugar, 457 U.S. at 937-39, 102 S.Ct. at 2754; see also Flagg Brothers, 436 U.S. at 157-58, 98 S.Ct. at 1734 (joint action test); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974) (nexus test); Adickes v. S.H. Kress & Co., 398 U.S. 144, 170, 90 S.Ct. 1598, 1615, 26 L.Ed.2d 142 (1970) (state compulsion test); Marsh v. Alabama, 326 U.S. 501, 506, 66 S.Ct. 276, 278, 90 L.Ed. 265 (1946) (public function test). Most recently, the Supreme Court articulated three factors relevant to this determination: (1) the extent to which private parties rely on state assistance or benefits; (2) whether private parties are performing traditional governmental functions; and (3) whether the alleged injury has been aggravated in a unique way by the incidents of state authority. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 622, 111 S.Ct. 2077, 2083, 114 L.Ed.2d 660 (1991). Regardless of the label, "only by sifting facts and weighing circumstances can the nonobvious involvement of the state in private conduct be attributed its true significance." Lugar, 457 U.S. at 939, 102 S.Ct. at 2755, citing Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961).
According to plaintiffs, Nicholas Van Wiser acted under color of state law in the underlying state court lawsuit: (1) when he personally mailed a summons and complaint in ...
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Jane Doe v. Bakhsehtsyan
...This is a passive role, and the state did not encourage or render assistance in the litigation to Bakhsehtsyan. Parker v. Byrd & Wiser, 947 F. Supp. 245, 250 (S.D. Miss. 1996). Such a situation is hardly equivalent to that of Edmonson, where the court was heavily involved in empaneling the ......