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Crop Production Services Inc v. Dickerson Agricultural Partnership

United States District Court, W.D. Louisiana, Monroe Division

February 10, 2017

CROP PRODUCTION SERVICES, INC.,
v.
DICKERSON AGRICULTURAL PARTNERSHIP, et al.

          JAMES JUDGE.

          MEMORANDUM ORDER

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE.

         Crop Production Services, Inc. ("CPS") a Maryland corporation, filed this action against Dickerson Agricultural Partnership ("DAP") (a Louisiana partnership), Tommy Dickerson (a resident of Louisiana), Scott Higdon (a resident of Louisiana), and Theresa Higdon (a resident of Louisiana), to collect on two secured promissory notes and guarantees executed by Dickerson and DAP to CPS, as well as incidental-debts, costs, expenses incurred, and attorney fees.[1]

         Dickerson and DAP did not respond to the complaint and a default was entered against them (Doc. 14). CPS next filed a motion for a default judgment against Dickerson and DAP (Doc. 22), which is pending.

         The Higdons filed a motion to dismiss pursuant to Fed.R.Civ.P. Rule 12(b)(6) (Doc. 17). The Higdons allege in their motion that: (1) they were not "general partners" in DAP; (2) they never signed any of the documents organizing the DAP partnership; (3) the Higdons's signatures on the DAP articles of partnership are forgeries, ' and (4) the Higdons had no knowledge of or involvement in the forged documents and DAP. The Higdons contend the forged document (Articles of Partnership) relied on by CPS is an absolute nullity and cannot form the basis for the Higdons's liability to CPS (Doc. 17).

         CPS filed a brief in opposition to the Higdons's motion (Doc. 20). CPS objects to the Higdons's attachment of an affidavit to their motion to dismiss. CPS also contends the Higdons's forgery argument is a defense to liability, rather than a basis for showing CPS did not state a claim. That argument appears to be correct since, accepting the allegations of the complaint as true and construing them in the light most favorable to CPS, CPS has stated a claim for breach of contract.[2] See Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert, den., 459 U.S. 1105 (1983).

         Since the Higdons's affidavit is inherent to their forgery argument in their motion to dismiss, it will be considered by the Court[3] and their motion will be treated as one for summary judgment, in accordance with Fed.R.Civ.P. Rule 12(b).

         Accordingly, IT IS ORDERED that the Higdons and CPS have through March 31, 2017 to file supplemental briefs on the motion for summary judgment and to support their arguments with summary judgment-type evidence.

         A Report and Recommendation on CPS's motion for a default judgment against DAP is pretermitted pending resolution of the Higdons's claim of a fraudulently confected partnership.

         THUS DONE AND SIGNED.

---------

Notes:

[1] CPS does not explain why it did not include the fourth DAP partner, John Russell, as a defendant in this action.

DAP executed a promissory note in favor of CPS on January 8, 2014 for $ 766, 298, at 7.75% per annum interest, which established a line of credit up to which CPS would provide goods and services for DAP for the 2014 crop year (Doc. 22). The 2014 note was to be paid in one installment on December 15, 2016 (Doc. 22). Dickerson, one of DAP's partners, personally guaranteed the promissory note to CPS. The note is also secured by a security interest in DAP (all crops, farm products, livestock, poultry, and equipment) that was perfected through filing UCC-l(F) forms (Doc. 22). CPS shows that, in 2014, it provided foods and services to DAP valued at $1, 027, 165.22, an amount that ...


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