United States District Court, W.D. Louisiana, Monroe Division
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE.
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
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
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).
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. 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).
the Higdons's affidavit is inherent to their forgery
argument in their motion to dismiss, it will be considered by
the Court and their motion will be treated as one
for summary judgment, in accordance with Fed.R.Civ.P. Rule
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
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
DONE AND SIGNED.
 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 ...