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Hemphill Construction Co., Inc v. M. A. C. & Associates, LLc Date Filed: 05/04/2016
et al Current Days Pending: 757
Assigned to: Steve S Ratcliff, III Total Case Age: 757
Jury Demand: None
Nature of Suit: 45 Breach of Contract
Plaintiff
Hemphill Construction Co., Inc represented by David Bonds Ellis
1858 Highway 49 South Mockbee Hall & Drake
Florence, Ms 39073 125 South Congress Street, Suite 1820
JACKSON, MS 39201
601-353-0045
Fax: 601-353-0045
Email: dellis@mhdlaw.com
ATTORNEY TO BE NOTICED
V.
Defendant
M. A. C. & Associates, LLc represented by Robert L. Gibbs
125 South Congress Street Suite 1300 Gibbs Travis PLLC
Jackson, Ms 39201 210 East Capitol Street
Suite 1801
JACKSON, MS 39201
601-487-2631
Fax: 601-366-4295
Email: rgibbs@gibbstravis.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Tujuana S Mcgee
Gibbs Travis PLLC
210 East Capitol Street
Suite 1801
JACKSON, MS 39201
601-487-2625
Fax: 601-366-4295
Email: tmcgee@gibbstravis.com
ATTORNEY TO BE NOTICED
Defendant
M. A. C. Construction Co. of Ms, LLC represented by Robert L. Gibbs
125 South Congress Street, Suite 1300 (See above for address)
Jackson, Ms 39201 LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Tujuana S Mcgee
(See above for address)
ATTORNEY TO BE NOTICED
Defendant
Marcus Wallace represented by Robert L. Gibbs
209 Calumet Dr (See above for address)
Madison, Ms 39110 LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Tujuana S Mcgee
Case: 45CI1:16-cv-00090-ssr Document #: <docnum> Filed: <datefiled> Page 2 of 4
(See above for address)
ATTORNEY TO BE NOTICED
I. INTRODUCTION
the sole owner of M.A.C. & Associates and M.A.C. & Construction.
Exhibit “B” and made a part hereof. As such, the claims against
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II. ARGUMENT
A. Standard of Review
beyond doubt that the plaintiff will be unable to prove any set of
Dist., 764 So.2d 1234 (Miss. 1999)). The motion to dismiss acts as
of action against the defendant for which the law affords a remedy.
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Hemphill.
Motion to Dismiss.
Respectfully submitted,
By Its Attorneys,
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CERTIFICATE OF SERVICE
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Pursuant to Mississippi Rule of Civil Procedure 12(b)(6), Defendant, , by and through his
attorneys, hereby moves to dismiss the claims against Marcus Wallace, individually. As
to allege any, let alone sufficient, facts to establish any recovery against Marcus Wallace. Rather,
Plaintiff’s claims merely allege claims against Marcus Wallace solely for acting on behalf of his
corporations – both Limited Liability Companies. The Mississippi Limited Liability Company
Act clearly shield Mr. Wallace from liability simply for acting on behalf of the limited liability
company without more. Accordingly, Defendant, Marcus Wallace, respectfully request that the
Court dismiss the claims against Marcus Wallace, for Failure to State a Claim in which relief can
be granted.
Respectfully submitted,
MARCUS WALLACE
s/ Robert L. Gibbs
Robert L. Gibbs
Case: 45CI1:16-cv-00090-ssr Document #: 10 Filed: 06/09/2016 Page 2 of 2
OF COUNSEL:
Certificate of Service
The undersigned hereby certifies that a true copy of the foregoing was duly served upon
all known counsel of record, this the 9th day of June, 2016, and upon all parties registered with the
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Defendant, Marcus Wallace, (hereinafter “Wallace”), by and through counsel and submits
FACTUAL BACKGROUND
This matter involves a breach of contract law suit brought by Hemphill Construction. The
facts in this case are not heavily disputed. At all times, Wallace acted in his capacity as a President
for a Limited Liability Company. The lawsuit against Wallace; therefore, should be dismissed
because Wallace never acted in his individual capacity. Furthermore, Plaintiff has not alleged in
its Complaint any allegations that would justified Mr. Wallace being a party to this lawsuit. As
explained below, Mississippi Limited Liability Law shields persons from liability simply from
I. STANDARD OF REVIEW
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.
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Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops
short of the line between possibility and plausibility of ‘entitlement to relief. Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (U.S.2009) (quoting Twombly, 550 U.S. at 556–57, 570). It follows that
“where the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to
Because Regions has failed to state a claim upon which relief could be granted, the claims
In 1994, the Mississippi Legislature authorized the formation of limited liability companies
in Mississippi. Persons who form one of these legal entities—commonly known as an LLC—are
allowed to enter into a contract called a limited liability company agreement “to regulate or
establish the affairs of the limited liability company, the conduct of its business, and the relation
of its members.1
1
The Revised Mississippi Limited Liability Company Act, in regards to the liability of third parties, reads as follows:
(1) Except as otherwise provided by this chapter, the debts, obligations and liabilities of a limited liability
company, whether arising in contract, tort or otherwise, shall be solely the debts obligations and
liabilities of the limited liability company, and no member, manager or officer of a limited liability
company shall be obligated personally for any such debt, obligation or liability of the limited liability
company solely by reason of being a member, acting as a manager or acting as an officer of the limited
liability company.
(2) A member, manager or officer of a limited liability company is not a proper party to proceeding by or
against a limited liability company, by reason of being a member, manager of officer, as applicable, of
the limited liability company, except:
a. Where the object of the proceeding is to enforce a member’s, manager’s or officer’s right
against or liability to the limited liability company; or
b. In a derivative action brought pursuant to Article 11 of this chapter.
(3) Notwithstanding the provisions of subsections (1) and (2) of this sections, under an operating agreement
or under another agreement, a member, manager or officer may agree to be obligated personally for any
or all of the debts, obligations and liability of the limited liability company.
Miss. Code. Ann. § 79-29-311. (Supp. 2011).
2
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On January 1, 2011, the Revised Mississippi Limited Liability Company Act went into
effect. See Miss. Code. Ann. §§ 79–29–101 to –1317 (Supp.2011). Mississippi Code Annotated
section 79–29–305(1) (Rev.2009) was amended and re-codified as Mississippi Code Annotated
section 79–29–311(1) (Supp.2011). The new code section provides a member cannot be personally
liable for an LLC debt “solely by reason of being a member [.]” Miss. Code Ann. § 79–29–311(1)
The Revised LLC Act goes on to state that a member, manager or officer of a limited
liability company is not a proper party to a proceeding by or against a limited liability company,
by reason of being a member, manager or officer, as applicable, of the limited liability company,
except:
(a) Where the object of the proceeding is to enforce a member's, manager's or officer's right
against or liability to the limited liability company; or
(b) In a derivative action brought pursuant to Article 11 of this chapter.
The allegations of this lawsuit is essentially a breach of contract suit action for failure to
pay for services render pursuant to the contract and failure to indemnify. Plaintiff alleges nothing
more Furthermore, all of Plaintiff’s allegations against Mr. Wallace are based on his duties as
Limited liability companies can act only through their representatives. The M.A.C.
Companies would not be able to make representations regarding the contract absent a
representative action on behalf of the LLC. Furthermore, absent a clear indication that the person
intended to be held personally liable, a member or officer of an LLC cannot be held individually
liable for the debts, obligations and liabilities of the limited liability company, except in
circumstances under Miss. Code. Ann. 79-29-311(3), which are not found here.
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request that the Court to dismiss the claims against him, for failure to state a claim in which relief
can be granted.
Respectfully submitted,
MARCUS WALLACE
s/ Robert L. Gibbs
Robert L. Gibbs
OF COUNSEL:
Certificate of Service
The undersigned hereby certifies that a true copy of the foregoing was duly served upon
all known counsel of record, this the 30th day of September, 2017, and upon all parties registered
with the Court’s electronic filing system by operation of the Court’s MEC system.
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follows:
I. PARTIES
liability company. MAC & Associates may be served with this First
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II. Jurisdiction
Constitution.
III. VENUE
IV. FACTS
(the “Project”).
issued by Federal Insurance Company for the Project, and for each
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hereof.
claims, and agreed that certain amounts were in fact owed to each
and Wallace failed and refused to pay the payment bond claimants,
as indemnitor.
fulfill its duties under the indemnity agreements, the exact amount
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COUNT I - INDEMNITY
Federal’s claims against MAC & Associates and Wallace under the
Hemphill against any and all liability for losses and expenses of
Federal on the projects are evidence of the fact and amount of MAC
date for which it has not been reimbursed, as well as other losses
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fees and expenses that Hemphill may incur in connection with the
this cause.
and the various subcontractors and suppliers to the extent that MAC
that Hemphill may incur in connection with the bonds, the exact
Co. of MS, LLC, M.A.C. & Associates, LLC and Marcus L. Wallace,
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allowed under the law from the date Hemphill paid each
c. For such relief as this Court may deem just and proper.
Respectfully submitted,
By Its Attorneys,
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