Case: 25CO1:14-cv-03969

Document #: 43

Filed: 11/14/2016

Page 1 of 7

IN THE COUNTY COURT OF HINDS COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT
MARTEZE HARRIS

PLAINTIFF

VS.

CAUSE NO. 14-3969

BLACK DIAMONDS, ET. AL

DEFENDANT

PLAINTIFFS MOTION FOR

CONTEMPT, SANCTIONS, AND OTHER RELIEF
COMES NOW Marteze Harris (hereinafter Mr. Harris or Plaintiff), by and through
counsel, and files this Motion for Contempt, Sanctions, and Other Relief against Defendants, Daniel
Owens d/b/a Black Diamonds Nightclub d/b/a Black Diamonds of Jackson, LLC (hereinafter
Defendants), pursuant to Miss. Code Ann. 13-1-271, Miss. Code Ann. 9-1-17, Mississippi
Rule of Civil Procedure 11, and this Courts inherent power, and seeks an Order holding Defendants
in contempt, imposing sanctions, and awarding Mr. Harris attorneys fees and costs. In support of
Plaintiffs motion, Plaintiff would show unto this Honorable Court the following, to-wit:
A. FACTS
1.

On or about January 7, 2016, a hearing was held on the Plaintiffs Motion for

Sanctions against the Defendants for failing to comply with this Courts Order compelling the
Defendants to answer discovery. (See Motion to Compel Discovery Responses, Dkt. #9, and
Motion for Sanctions for Contempt, Dkt. #13).
2.

On January 12, 2016, this Honorable Court entered an Order Imposing Sanctions

for Contempt against the Defendants and deemed all matters alleged in the Complaint to be
admitted. (See Dkt. #20). This Honorable Court further ordered that the Defendants pay
attorneys fees to the Plaintiff in the amount of $1,500.00 which to date remains unpaid.

Case: 25CO1:14-cv-03969

3.

Document #: 43

Filed: 11/14/2016

Page 2 of 7

On February 25, 2016, a hearing was held before this Honorable Court on

damages, and thereafter on March 1, 2016, this Honorable Court issued a Judgment against the
Defendants and awarding the Plaintiff damages in the amount of $61,500.00 (which includes the
amount sued of $60,000.00, plus attorneys fees of $1,500.00 as ordered in the Courts January
12, 2016, Order Imposing Sanctions for Contempt), together with post-judgment interest thereon
at the rate of 18% per annum until paid in full. (See Judgment, Dkt. #21).
4.

On October 21, 2016, a Writ of Execution was issued to the Hinds County

Sheriffs Department directing the Sheriff to seize Black Diamonds Nightclub (hereinafter
Black Diamonds) located at 210 Parcel Drive, Jackson, Mississippi. (See Writ of Execution,
Dkt. #37).
5.

Pursuant to the Writ, the Hinds County Sheriffs Department locked the doors at

Black Diamonds and placed a large red Notice on its doors and locks instructing that no one
enter the business without first contacting the Sheriff. (See Photographs attached as Exhibit 1.)
6.

The red Notice and tape on the doors have been removed by the Defendants

without permission or consent from the Sheriffs Department or counsel for the Plaintiff. (See
Photographs of Black Diamonds taken on November 13, 2016, and attached as Exhibit 2). The
attached photographs show that individual(s) associated with Black Diamonds have disregarded
the seizure of the property, removed the Notice, entered the business, and likely removed items,
goods, cash, or other valuables that may or could have satisfied the Plaintiffs Judgment in whole
or in part. Upon information and belief, the black Chevrolet truck parked in the rear of the
business on November 13, 2016 is owned by Daniel Owens, Daniel Danny Owens, and/or
Blake Owens.

Case: 25CO1:14-cv-03969

7.

Document #: 43

Filed: 11/14/2016

Page 3 of 7

Further, upon information and belief, Daniel Owens, Daniel Danny McGee

Owens, and/or Blake Owens are responsible for numerous threats, intimidation tactics, and
harassment suffered by Undersigned Counsel, his family, and another lawyer and his small
children.

There have been unidentifiable and suspicious vehicles driving by Undersigned

Counsels home and office, which have also been seen following Undersigned Counsel and his
wife, as well as seen sitting outside Undersigned Counsels office.

Further, Undersigned

Counsel has received several threatening phone calls from unidentified persons and others
associated with the Owens family and/or Black Diamonds demanding that Black Diamonds be
reopened. This conduct should not be condoned.

(See Affidavit of Benjamin H. Wilson,

attached as Exhibit 3).

B. ARGUMENT
1.

Civil contempt sanctions are proper against the Defendants pursuant to Miss.

Code Ann. 9-1-17, Rule 11 of the Mississippi Rules of Civil Procedure, and this Courts
inherent power to protect the integrity of its process and compel compliance with the Writ of
Execution that was issued on the Judgment against the Defendants.
2.

Civil contempt orders enforce a private partys rights or compel compliance with

a courts order, and the contemnor pays any resulting penalty to the injured party. 1 That is,
Mississippi law clearly supports a courts power to sanction an attorney or party for violation of
court orders,2 and civil contempt orders are, moreover, proper to enforce or vindicate[] a
private partys rights3

Hanshaw v. Hanshaw, 55 So. 3d 143, 147 (Miss. 2011) (en banc) (citing Purvis v. Purvis, 657 So. 2d
794, 796 (Miss. 1994)); Graves v. State, 66 So. 3d 148, 151 (Miss. 2011) (The purpose of civil contempt
is to compel compliance with the courts orders, admonitions, and instructions).
2
Wyssbrod v. Wittjen, 798 So. 2d 352, 359 (Miss. 2001).
3
Hanshaw, 55 So. 3d at 147.

Case: 25CO1:14-cv-03969

3.

Document #: 43

Filed: 11/14/2016

Page 4 of 7

[W]here a party acts contrary to a court order, admonition, or instruction, the

opposing party is entitled to recover its damages and expenses as a civil contempt sanction.4
4.

Pursuant to Mississippi law, where the partys conduct is intentional and the

opposing party is thereby caused to expend time and money needlessly, then attorney fees and
expenses should be awarded to the wronged party.5
5.

Regardless of the applicability of any particular rule or statute providing for

contempt sanctions, however, it remains within the inherent power of this Court to award them.
This is because, as the Supreme Court has explained, courts have an inherent power to protect
the integrity of their processes, and may impose sanctions in order to do so.6
6.

In the instant case, an award of civil contempt sanctions against the Defendants

and in favor of Plaintiff for the full amount of damages, attorneys fees, costs, and expenses
incurred as a result of the Defendants failure to comply with this Courts Order, filing frivolous
and identical Petitions in Hinds County Chancery Court, filing in bad faith a bankruptcy petition
solely for the purpose of thwarting collection of this judgment, and the other reprehensible
conduct described herein is proper pursuant to the rules and statutory provisions under
Mississippi law, in addition to this Courts inherent power to protect the integrity of its
processes.7
7.

Defendants are in contempt of this Court pursuant to Miss. Code Ann. 9-1-17,

which provides in pertinent part that [i]f any witness refuse to be sworn or to give evidence, or
if any officer or person refuse to obey or perform any rules, order, or judgment of the court,
4

Id. (citing Wyssbrod, 798 So. 2d at 368).

Corporate Mgmt., Inc. v. Greene County, 23 So. 3d 454, 466 (Miss. 2009) (quoting Mabus v. Mabus,
910 So. 2d 486, 489 (Miss. 2005)) (emphasis added).
6
Wyssbrod, 798 So. 2d at 368 (quoting Ladner v. Ladner, 436 So. 2d 1366, 1370 (Miss. 1983)); id. at
359-60 (An act committed in disregard of a court order is a contempt of that court and is within the
inherent power of the court to punish.) (citing Purvis v. Purvis, 657 So. 2d 794, 798 (Miss. 1995)).
7
See Wyssbrod, 798 So. 2d at 368 (quoting Ladner, 436 So. 2d at 1370).
5

Case: 25CO1:14-cv-03969

Document #: 43

Filed: 11/14/2016

Page 5 of 7

such as Defendants have herein, such court shall have power to fine and imprison such officer
or person until he shall give evidence, or until the rule, order, or judgment shall be complied
with.8 Falling squarely within the purview of this statute is the Defendants removal of assets
or other things of value from the business, despite being ordered to stay out of the business.9
This Section gives the Court explicit authority to fine or imprison (or both) the Defendants
and/or the person responsible for removing the Notice and tape on the locks of the door at Black
Diamonds.
8.

Additionally, Rule 11 provides a further ground for an award of contempt

sanctions against Defendants herein. As set forth in the Rule, [i]f any party files a motion or
pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment
or delay, the court may order such a party, or his attorney, or both, to pay to the opposing party
or parties the reasonable expenses incurred by such other parties and by their attorneys, including
reasonable attorneys fees. Rule 11 further allows this court to strike a pleading or motion as a
sham if it is signed with intent to defeat the purpose of this rule. Upon such a finding, the
action may proceed as though the pleading or motion had not been served.
9.

As set forth above, the Defendants duplicitous Petitions filed in Hinds Chancery

Court and the bad faith filing of bankruptcy is clearly frivolous. Moreover, the Defendants have
moved to sanction Undersigned counsel and forced the Undersigned to defend same.
10.

On information and belief, the Defendants are also responsible for the threats,

intimidation tactics, and harassment suffered by Undersigned counsel, his family, and other

Miss. Code Ann. 9-1-17. Although there is a $100 per offense limit on an order to pay sanctions
pursuant to Section 9-1-17 when the contemptuous act occurs within the courts presence (i.e., direct
contempt), that limit does not apply where the contemptuous act occurs outside the courts presence (i.e.,
constructive contempt), which is the case here. Miss. Code Ann. 9-1-17; e.g. Wyssbrod, 798 So. 2d at
360-61.
9
Wyssbrod, 798 So. 2d at 359.

Case: 25CO1:14-cv-03969

Document #: 43

lawyers at Undersigned Counsels office.

Filed: 11/14/2016

Page 6 of 7

There have been unidentifiable and suspicious

vehicles driving by Undersigned Counsels home, which have also been seen following
Undersigned Counsel and his wife, as well as seen sitting outside Undersigned Counsels home
and office. Further, Undersigned Counsel has received several threatening phone calls from
unidentified persons demanding that Black Diamonds be reopened.

This conduct of the

Defendants should not be condoned.

11.

Due to Defendants repeated, continuing, and/or intentional and/or willful

disregard of this Courts Order, a civil contempt order award of sanctions against the Defendants,
an award of attorneys fees and costs for Plaintiff, and any and all other relief deemed fit is
proper and warranted pursuant to Mississippi law and this Courts inherent power. This Court
must protect the integrity of [its] processes.10
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that this Court enter an Order
holding Defendants in contempt, sanctioning Defendants for their frivolous, dangerous, and
reprehensible actions and conduct, directing Defendants to pay monetary sanctions or suffer
incarceration (or both), and directing Defendants to pay Plaintiffs attorneys fees and costs for
defending this matter. Plaintiff further prays for any other general relief warranted but not
specifically requested herein.
THIS the 14th day of November, 2016.
Respectfully submitted,
MARTEZE HARRIS
By: /s/ Benjamin H. Wilson
Benjamin H. Wilson, MSB No. 103586
One of His Attorneys

10

Wyssbrod, 798 So. 2d at 368 (quoting Ladner, 436 So. 2d at 1370).

Case: 25CO1:14-cv-03969

Document #: 43

Filed: 11/14/2016

Page 7 of 7

OF COUNSEL:
BEN WILSON, ESQ. (MSB# 103586)
B.H. WILSON, PLLC
475 E. Capitol Street (39201)
Post office Box 2887
Jackson, Mississippi 39207
455 Pebble Creek Drive
Madison, Mississippi 39110
Telephone: (601) 707-9459
Facsimile: (601) 707-5915
Email: Ben@bhwilson.com

CERTIFICATE OF SERVICE
I hereby certify that I have this day served, via the Courts MEC Notification System, a
true and correct copy of the above and foregoing on all parties who receive such notices.
THIS the 14th day of November, 2016.
/s/ Benjamin H. Wilson
Of Counsel

Case: 25CO1:14-cv-03969

Document #: 43-3

Filed: 11/14/2016

Page 1 of 1

Case: 25CO1:14-cv-03969

Document #: 45

Filed: 11/14/2016

Page 1 of 11

IN THE COUNTY COURT OF HINDS COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT
MARTEZE HARRIS

PLAINTIFF

VS.

CAUSE NO. 14-3969

BLACK DIAMONDS, ET. AL

DEFENDANTS

PLAINTIFFS MOTION TO CLARIFY AND AMEND JUDGMENT

COMES NOW Marteze Harris (hereinafter Plaintiff), by and through counsel,

pursuant to the Mississippi Rules of Civil Procedure, and files this Motion to Clarify and Amend
Judgment, and would show unto this Honorable Court the following, to-wit:
PROCEDURAL HISTORY
1.

On October 24, 2014, the Plaintiff filed the subject lawsuit against DANIEL

OWENS D/B/A BLACK DIAMONDS NIGHTCLUB and JOHN DOES 1-201. (See Plaintiffs
Complaint, Dkt. #2). The Plaintiffs claims against the Defendants stemmed from an assault and
battery committed on August 2, 2014 (hereinafter subject incident) against the Plaintiff on the
property known as Black Diamonds Nightclub (hereinafter Black Diamonds) located at 210
Parcel Drive in Jackson, Mississippi. Id. It is uncontested that the Plaintiff was an invitee of
Black Diamonds on the date of the subject incident. It is uncontested that the Plaintiff was
injured on the property known as Black Diamonds by employees of Black Diamonds. It is
undisputed that Plaintiffs Complaint against Black Diamonds, its owners and security members,
was personally served on one of Black Diamonds purported owners/partners when Daniel
JOHN DOES 1-20 included Black Diamonds agents, employees, and/or or servants,
persons, corporations, and/or other entities of whatever kind, and members of the security
detail at Black Diamonds Nightclub that caused or contributed to the Plaintiffs injuries. See
3, 4 & 5 of Plaintiffs Complaint, Dkt. #2.
1

Case: 25CO1:14-cv-03969

Document #: 45

Filed: 11/14/2016

Page 2 of 11

Owens was personally served on November 18, 2014 at 210 Parcel Drive in Jackson,
Mississippi, the business address of Black Diamonds. (See Dkt. #4). Black Diamonds, by and
through counsel, answered the Plaintiffs Complaint and began defending the lawsuit. (See Dkt.
#5).
2.

From the time of the subject incident until the time that the Judgment was entered,

Black Diamonds was an unregistered business that was operated, owned, and/or managed by
Daniel Owens in partnership with Daniel Danny McGee Owens and Blake Owens.2 As set
forth in footnote 2 below, Daniel Owens was at all times relevant an owner, partner and/or
manager for a network of adult entertainment businesses operating in Tennessee, Mississippi,
and Texas.
3.

On December 19, 2014, Daniel Owens D/B/A Black Diamonds Nightclub

(unknown entity) and John Does 1-20 filed an Answer on Behalf of All Defendants. (See
Dkt. #5) The Defendants alleged that the Plaintiffs Complaint failed to name, in whole or in
part, an entity or an individual that owns or operates Black Diamonds Nightclub. (See 20, Dkt.
#5).

Daniel Daxon Owens, Daniel Danny McGee Owens, and Blake Owens (The Owens
Family) own, manage, and operate a chain of strip clubs and related businesses in multiple
states, including Texas, Tennessee, and Mississippi. According to public records and news
articles, the Owens Family business, predominantly topless clubs and peep shows, started in
the 1970s. (See various News Articles, attached as Exhibit 11). In 1992, Danny and Blake were
indicted and subsequently convicted by a federal court in Tennessee for multi-count indictments
charging them with conspiracy, racketeering, prostitution, money laundering, possession with
intent to distribute a Schedule II controlled substance, and illegal gambling. (See United States
Court of Appeals, Sixth Circuit Opinion, attached as Exhibit 12). The charges stemmed from
their ownership/partnership in their illicit enterprise that was based in Memphis, Tennessee. Id.
Blake was also convicted of kidnapping as a result of a separate prosecution. Id. Both Danny and
Blake spent a significant amount of time in the federal penitentiary. According to the Federal
Bureau of Prisons, Blake was released from custody on September 26, 2007, and Danny was
released on June 17, 2016 roughly three (3) months after the Judgment in the case sub judice
was entered. (See Federal Bureau of Prison Inmate Locator printouts, attached as Exhibit 13).
2

Case: 25CO1:14-cv-03969

4.

Document #: 45

Filed: 11/14/2016

Page 3 of 11

In response to Black Diamonds Answer, on January 4, 2015, the Plaintiff

propounded written discovery requests to the Defendants, including Interrogatories and Requests
for Production of Documents. (See Notices of Service, Dkt. #7 and Dkt. #8). The following
were the first three (3) Interrogatories propounded by the Plaintiff to the Defendants:
INTERROGATORY NO. 1: Please state the full name, address, and job
position of each person, who provided information used in answering these
interrogatories.
INTERROGATORY NO. 2: Please identity the entity that was being operated
as a business on August 2, 2014, and located at 210 Parcel Drive, Jackson,
Mississippi.
INTERROGATORY NO. 3: Please identify the owner/operator of the entity
being operated as a business at 210 Parcel Drive, Jackson, Mississippi on August
2, 2014.
(See Plaintiffs Discovery Requests attached as Exhibit 1).
5.

On April 14, 2015, Black Diamonds counsel responded to the Plaintiffs good

faith attempt to obtain the outstanding discovery responses and stated in an email that he (James
Bubba Scarff, attorney for Black Diamonds) was waiting on documents from the Home
Office. (See April 14, 2015 Email attached as Exhibit 2).
6.

On April 22, 2015, counsel for Black Diamonds (Mr. Scarff) advised that I have

received all the documents that I requested from the home office and that [he] expects to have
all discovery responses to [Plaintiffs counsel] by Wednesday of next week.

(See April 22,

2015 Email attached as Exhibit 3).

7.

Despite Mr. Scarffs assurance that he would respond to the Plaintiffs discovery

requests, he did not. Accordingly, on May 1, 2015, the Plaintiff filed his Motion to Compel
Discovery Responses (See Dkt. #9).

Case: 25CO1:14-cv-03969

8.

Document #: 45

Filed: 11/14/2016

Page 4 of 11

On September 21, 2015, this Honorable Court granted Plaintiffs Motion to

Compel Discovery Responses and issued its Order compelling the Defendants to respond to
Plaintiffs discovery requests propounded to the Defendants within 30 days. (See Order Granting
Motion to Compel Discovery Responses, Dkt. #12).
9.

Black Diamonds again refused to answer discovery as ordered by this Honorable

Court, and thereafter on October 26, 2015, Plaintiff filed his Motion to Impose Sanctions for
Contempt. (See Dkt. #13). Pursuant to M.R.C.P. 37(b)(2)(C), the Plaintiff moved for a default
judgment against the Defendants and requested an award for attorneys fees.
10.

On November 2, 2015, the Defendants, through counsel, filed their Response in

Opposition to Plaintiffs Motion to Impose Sanctions for Contempt and asserted that Plaintiff
has failed to file against Daniel Owens individually and has served a non-existent entity.
(See Dkt. #15) (emphasis added).
11.

On or about January 7, 2016, a hearing was held on the Plaintiffs Motion to

Impose Sanctions, and on January 12, 2016, this Honorable Court entered its Order Imposing
Sanctions for Contempt against the Defendants. (See Dkt. #20). As a sanction, this Honorable
Court deemed all matters alleged in the Plaintiffs Complaint to be admitted and further ordered
that the Defendants pay attorneys fees in the amount of $1,500.00. Id. The Court also set a
hearing date for a determination of damages to be awarded to the Plaintiff. Id.
12.

On February 25, 2016, pursuant to this Honorable Courts Order dated January

12, 2016 (Dkt. #20), a hearing was held on damages and the Plaintiff was awarded damages in
the amount of $61,500.00 (which included the amount sued of $60,000.00, plus attorneys fees
of $1,500.00 as ordered in the Courts January 12, 2016 Order Imposing Sanctions for

Case: 25CO1:14-cv-03969

Document #: 45

Filed: 11/14/2016

Page 5 of 11

Contempt), together with post-judgment interest thereon at the rate of 18% per annum until paid
in full. (See Judgment, Dkt. #21). The Judgment was entered on March 1, 2016.

BLACK DIAMONDS IS ATTEMPTING

TO AVOID THE JUDGMENT
13.

Prior to the Judgment being entered, Black Diamonds owners, managers, and/or

agents filed Certificates of Formation for Parcel Drive Entertainment, LLC (filed October 5,
2015), Dannys Restaurant, LLC (filed October 5, 2015), and Black Diamonds of Jackson, LLC
(filed February 25, 2016). After the Judgment was entered, Black Diamonds owners, managers,
and/or agents filed a Certificate of Formation for Diamonds Black of Jackson, LLC (filed
September 8, 2016). These entities were all created by Daniel Owens and/or Daniel Danny
Magee Owens. (See Mississippi Secretary of State Formation Documents, annual reports and
other relevant corporate documents, attached as Exhibit 4).
14.

At all times relevant, the owners, members, managers, and/or registered agents for

Black Diamonds was Daniel Owens, Daniel D. Owens, Daniel Daxon Owens, Daniel M. Owens,
Daniel Magee Owens, or Danny Owens. (See Exhibit 4).
15.

Following the Plaintiffs first attempt to collect on the Judgment against Black

Diamonds (See Writs of Execution, Dkt. #26-30), on September 16, 2016, Daniel Daxon Owens
d/b/a Black Diamonds Nightclub filed a Chapter 13 bankruptcy petition seeking to stop
execution. (Please see Notice of Bankruptcy Case Filing, attached as Exhibit 5). In light of the
bankruptcy filing, counsel for the Plaintiff halted execution efforts to further investigate the
d/b/a filing and the related bankruptcy schedules filed by Daniel Daxon Owens.
16.

According to Daniel Daxon Owens statements, bankruptcy schedules, and

subsequent pleadings filed by Daniel Daxon Owens and Daniel Danny Magee Owens, Black

Case: 25CO1:14-cv-03969

Document #: 45

Filed: 11/14/2016

Page 6 of 11

Diamonds of Jackson, LLC is the purported entity that owns the Black Diamonds strip club
located at 210 Parcel Drive, Jackson, Mississippi.3 (Please see Schedules, Daniel Daxon Owens
Responses to Discovery Propounded by Chapter 13 Trustee, Emergency Petitions filed by Daniel
Daxon Owens and Danny McGee Owens, and the Affidavit of Danny McGee Owens, attached as
Exhibits 6, 7, 8, and 9). Both Daniel Daxon Owens and Daniel Danny Magee Owens now
claim that Daniel Daxon Owens has no ownership interest of any kind in Black Diamonds.
17.

It is uncontested that at the very least, at all times relevant, Daniel Owens was an

agent for Black Diamonds and that he was served with the Summons and Complaint November
18, 2014 at the Black Diamonds strip club located at 210 Parcel Drive in Jackson, Mississippi.
18.

Based on Daniel Daxon Owens and Daniel Danny Magee Owens

representations, pleadings, and sworn affidavits recently filed, counsel for the Plaintiff resumed
collection efforts on the Judgment against Black Diamonds. (See Writ of Execution, Dkt. #37).
Black Diamonds was closed pursuant to the Writ of Execution on October 21, 2016 by the Hinds
County Sherriffs Department.

It remains closed as of the date of this filing, however,

Defendants are believed to be in contempt of the Writ of Execution.

19.

On November 1, 2016, a status conference was held before the Honorable Edward

Ellington, U.S. Bankruptcy Court Judge, and he (Judge Ellington) requested that the parties seek
clarification of the Judgment from this Honorable Court.
20.

The Plaintiff is therefore requesting that this Honorable Court clarify the

Judgment and amend it to reflect that Black Diamonds of Jackson, LLC, or whatever
person(s)/entity the Defendants claim to own Black Diamonds located at 210 Parcel Drive,
Jackson, Mississippi, as the person(s)/entity that the Judgment applies to.
3

Black Diamonds of Jackson, LLC was formed on March 1, 2016, the day before the Judgment
(Dkt. #21) was entered in this case.
6

Case: 25CO1:14-cv-03969

Document #: 45

Filed: 11/14/2016

Page 7 of 11

THE DOCTRINE OF MISNOMER

21.

The Mississippi Supreme Court has consistently recognized that "the doctrine of

misnomer allows parties to correct party-name errors if doing so would not result in
prejudice." Scaggs v. GPCH-GP, INC., 23 So.3d 1080, 1083 (Miss. 2009). In 1926, the
Mississippi Supreme Court stated that judgments shall stand "where the identity of the persons
sued and against whom judgment is rendered is not doubtful." Delta Cotton Oil Co. v. Planters'
Oil Mill, 107 So. 764, 767 (Miss. 1926). The general rule is that an amendment correcting a
misnomer is permissible at any time or any stage of the proceedings." S. Trucking Serv., Inc. v.
Miss. Sand and Gravel, Inc., 483 So.2d 321, 324 (Miss. 1986) (citing 67A C.J.S. Parties 237).
An erroneous corporate name should be correctable if "an actual party were in court, but was not
called by his proper name." Id.
22.

"If the effect of an amendment of a pleading is merely to correct the name of a

[defendant], and the proper party is actually in court, as where process has actually been served
on the true defendant, or he has appeared and defended or otherwise submitted himself to the
jurisdiction of the court, there is no prejudice." Scaggs v. GPCH-GP, INC., 23 So.3d 1080, 1083
(Miss. 2009) (quoting 67A C.J.S. Parties 237 (2002)).
23.

Under Mississippi law, it is well settled that an amendment is permitted so long as

the evidence does not suggest that the misnomer misled the parties into thinking that another
party was meant." Rich v. Nevels, 578 So.2d 609, 612 (Miss.1991); see also Hickman v. Citibank,
89 So.3d 691 (Miss. 2012).
24.

In Ala. & Vicksburg Ry. Co. v. Bolding, 13 So. 844 (Miss. 1891), the Mississippi

Supreme Court allowed execution of a judgment in which the plaintiff sued "A. & V. Railroad
Company," even though the correct name "Alabama & Vicksburg Railway Company" was not

Case: 25CO1:14-cv-03969

Document #: 45

Filed: 11/14/2016

Page 8 of 11

pleaded. The Mississippi Court of Appeals followed the same logic in Mieger v. Pearl River
County, 986 So.2d 1025 (Miss. Ct. App. 2008). In Mieger, the proper defendant was put on
notice and knew a complaint had been filed.
25.

Mississippis application of the doctrine of misnomer is consistent with federal

court rulings throughout the country. Scaggs, 23 So. 3d at 1084.

The Fifth Circuit has

consistently held that amendments to pleadings should relate back when a misnomer
occurs. See Hensgens v. Deere & Co., 869 F.2d 879, 884 (5th Cir. 1989); Montalvo v. Tower Life
Bldg., 426 F.2d 1135 (5th Cir. 1970). In Hensgens, the plaintiff sued "John Deere Corp." as
opposed to its proper name, "Deere & Co." Hensgens, 869 F.2d at 880. Judge Wisdoms opinion
in Hensgens stated, "Law is not a game of scrabble," and described John Deere's arguments as
"captious puzzlements [that] have a bearing on this case in the limited sense that they carry to
absurdity the defendant's argument, basically, that the plaintiff must suffer for her lawyer's
mistake, one that the parties knew was an insignificant error in nomenclature." Id. at 884.
Similarly, in Montalvo, the plaintiffs named the "Tower Life Building" as the defendant, instead
of "Tower Life Ins. Corp." Montalvo, 426 F.2d at 1137-38. The Montalvo court allowed an
amended pleading to relate back because "the Company knew or should have known that the
plaintiffs had every intention of bringing suit against their employerwhatever the employer's
proper legal name might be. . . ." Id. at 1147.

IT IS UNCONTESTED THAT BLACK DIAMONDS WAS ON NOTICE

OF THE LAWSUIT AND THAT THE PLAINTIFFS CLAIMS
WERE AGAINST BLACK DIAMONDS
26.

It was not until the day after the Judgment was entered that Black Diamonds of

Jackson, LLC became an official business entity. (See Exhibit 4). In fact, the documents for the
formation of Black Diamonds of Jackson, LLC were filed with the Secretary of State the same

Case: 25CO1:14-cv-03969

Document #: 45

Filed: 11/14/2016

Page 9 of 11

day that the hearing on damages was held by this Honorable Court on February 25, 2016.
Id. Moreover, when Black Diamonds of Jackson, LLC was created, Daniel Daxon Owens was
named as the Registered Agent for Black Diamonds, with his address listed as 210 Parcel Drive,
Jackson, Mississippi the physical address of Black Diamonds where the subject incident
occurred and where Daniel Owens was served with the Summons and Complaint on November
18, 2014 for the subject lawsuit.
27.

It is also uncontested that Black Diamonds was defending the lawsuit from the

time it answered the Complaint less than one month after Daniel Owens was served. This is
evident from the pleadings filed by Black Diamonds, as well as its attorneys emails to Plaintiffs
counsel regarding Black Diamonds refusal to answer discovery and defense of case. (See
Exhibit 10).
28.

At the time of the subject incident, through the time that the Judgment was

entered, there was not a legitimate business entity that the Plaintiff could readily identify as
being the owner of Black Diamonds. Nevertheless, the Judgment is and was intended to be
against Black Diamonds located at 210 Parcel Drive, Jackson, Mississippi.
29.

Black Diamonds suffers no prejudice from the requested relief. Black Diamonds

was served with the Plaintiffs Complaint, filed an Answer on behalf of All Defendants, and
began defending the lawsuit.
30.

Immediately upon raising the defense that Plaintiffs Complaint failed to name, in

whole or in part, an entity or individual that owns or operates Black Diamonds (See 20, Dkt.
#5), counsel for the Plaintiff served written discovery on the Defendants seeking to identify the
entity or individual that owned or operated Black Diamonds. (See Exhibit 1).

Case: 25CO1:14-cv-03969

31.

Document #: 45

Filed: 11/14/2016

Page 10 of 11

Defendants failed and refused to respond to Plaintiffs written discovery which

sought to identify the entity or individual that owned or operated Black Diamonds after having
been compelled to do so within thirty (30) days by this Honorable Court on September 21, 2015.
(See Dkt. #12).
32.

This Honorable Court gave Defendants ample opportunity to respond to

Plaintiffs written discovery requests before it entered its Order Imposing Sanctions for
Contempt. (See Dkt. #20).
33.

Now, this Honorable Court should not allow Black Diamonds to escape the

Judgment entered against it for its intentional refusal to identify the correct legal entity until after
the Judgment was entered and collection proceedings had begun. To allow such a result would
fly in the face of Mississippi law and would only encourage businesses to thwart the legal
process.
WHEREFORE PREMISES CONSIDERED, Plaintiff, Marteze Harris, moves this
Honorable Court to clarify its Judgment and/or amend it to conform with the information and
evidence that Black Diamonds of Jackson, LLC is the proper legal name and/or owner of the
business, Black Diamonds Nightclub located at 210 Parcel Drive, Jackson, Mississippi. To the
extent that some other person(s) and/or entity owns Black Diamonds Nightclub located at 210
Parcel Drive, Jackson, Mississippi, Plaintiff, Marteze Harris, moves this Honorable Court to
clarify its Judgment and/or amend it to conform with the information provided to this Court as to
the true person(s)/entity that own it. The Plaintiff further moves this Honorable Court for an
order requiring Black Diamonds, or the attorney(s) advising it or both, to pay reasonable
expenses, including attorneys fees, for its dilatory conduct in this matter. Plaintiff further prays
for any other general relief warranted but not specifically requested herein.

10

Case: 25CO1:14-cv-03969

Document #: 45

Filed: 11/14/2016

Page 11 of 11

THIS the 14th day of November, 2016.

Respectfully submitted,
MARTEZE HARRIS
By: /s/ Benjamin H. Wilson
Benjamin H. Wilson, MSB No. 103586
One of His Attorneys
OF COUNSEL:
BEN WILSON, ESQ. (MSB# 103586)
B.H. WILSON, PLLC
475 E. Capitol Street (39201)
Post office Box 2887
Jackson, Mississippi 39207
455 Pebble Creek Drive
Madison, Mississippi 39110
Telephone: (601) 707-9459
Facsimile: (601) 707-5915
Email: Ben@bhwilson.com

CERTIFICATE OF SERVICE
I hereby certify that I have this day served, via the Courts MEC Notification System, a
true and correct copy of the above and foregoing on all parties who receive such notices.
THIS the 14th day of November, 2016.
/s/ Benjamin H. Wilson
Of Counsel

11

Case: 25CO1:14-cv-03969

Document #: 44

Filed: 11/14/2016

Page 1 of 13

IN THE COUNTY COURT OF HINDS COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT
MARTEZE HARRIS

PLAINTIFF

VS.

CAUSE NO. 14-3969

BLACK DIAMONDS, ET. AL

DEFENDANTS

PLAINTIFFS RESPONSE TO BLACK DIAMONDS

MOTION TO SET ASIDE DEFAULT JUDGMENT
COMES NOW Marteze Harris (hereinafter Plaintiff), by and through counsel, and
files this his Response to Black Diamonds Motion to Set Aside Default Judgment, and would
show unto this Honorable Court the following, to-wit:
PROCEDURAL HISTORY
1.

On October 24, 2014, the Plaintiff filed the subject lawsuit against DANIEL

OWENS D/B/A BLACK DIAMONDS NIGHTCLUB and JOHN DOES 1-201. (See Plaintiffs
Complaint, Dkt. #2). The Plaintiffs claims against the Defendants stemmed from an assault and
battery committed on August 2, 2014 (hereinafter subject incident) against the Plaintiff on the
property known as Black Diamonds Nightclub (hereinafter Black Diamonds) located at 210
Parcel Drive in Jackson, Mississippi. Id. It is uncontested that the Plaintiff was an invitee of
Black Diamonds on the date of the subject incident. It is uncontested that the Plaintiff was
injured on the property known as Black Diamonds by employees of Black Diamonds. It is
undisputed that Plaintiffs Complaint against Black Diamonds, its owners and security members,
was personally served on one of Black Diamonds purported owners/partners when Daniel
JOHN DOES 1-20 included Black Diamonds agents, employees, and/or or servants,
persons, corporations, and/or other entities of whatever kind, and members of the security
detail at Black Diamonds Nightclub that caused or contributed to the Plaintiffs injuries. See
3, 4 & 5 of Plaintiffs Complaint, Dkt. #2.
1

Case: 25CO1:14-cv-03969

Document #: 44

Filed: 11/14/2016

Page 2 of 13

Owens was personally served on November 18, 2014 at 210 Parcel Drive in Jackson,
Mississippi, the business address of Black Diamonds. (See Dkt. #4). Black Diamonds, by and
through counsel, answered the Plaintiffs Complaint and began defending the lawsuit. (See Dkt.
#5).
2.

From the time of the subject incident until the time that the Judgment was entered,

Black Diamonds was an unregistered business that was operated, owned, and/or managed by
Daniel Owens in partnership with Daniel Danny McGee Owens and Blake Owens.2 As set
forth in footnote 2 below, Daniel Owens was at all times relevant an owner, partner and/or
manager for a network of adult entertainment businesses operating in Tennessee, Mississippi,
and Texas.
3.

On December 19, 2014, Daniel Owens D/B/A Black Diamonds Nightclub

(unknown entity) and John Does 1-20 filed an Answer on Behalf of All Defendants. (See
Dkt. #5) The Defendants alleged that the Plaintiffs Complaint failed to name, in whole or in
part, an entity or an individual that owns or operates Black Diamonds Nightclub. (See 20, Dkt.
#5).

Daniel Daxon Owens, Daniel Danny McGee Owens, and Blake Owens (The Owens
Family) own, manage, and operate a chain of strip clubs and related businesses in multiple
states, including Texas, Tennessee, and Mississippi. According to public records and news
articles, the Owens Family business, predominantly topless clubs and peep shows, started in
the 1970s. (See various News Articles, attached as Exhibit 5). In 1992, Danny and Blake were
indicted and subsequently convicted by a federal court in Tennessee for multi-count indictments
charging them with conspiracy, racketeering, prostitution, money laundering, possession with
intent to distribute a Schedule II controlled substance, and illegal gambling. (See United States
Court of Appeals, Sixth Circuit Opinion, attached as Exhibit 6). The charges stemmed from their
ownership/partnership in their illicit enterprise that was based in Memphis, Tennessee. Id. Blake
was also convicted of kidnapping as a result of a separate prosecution. Id. Both Danny and Blake
spent a significant amount of time in the federal penitentiary. According to the Federal Bureau
of Prisons, Blake was released from custody on September 26, 2007, and Danny was released on
June 17, 2016 roughly three (3) months after the Judgment in the case sub judice was entered.
(See Federal Bureau of Prison Inmate Locator printouts, attached as Exhibit 7).
2

Case: 25CO1:14-cv-03969

4.

Document #: 44

Filed: 11/14/2016

Page 3 of 13

In response to Black Diamonds Answer, on January 4, 2015, the Plaintiff

propounded written discovery requests to the Defendants, including Interrogatories and Requests
for Production of Documents. (See Notices of Service, Dkt. #7 and Dkt. #8). The following
were the first three (3) Interrogatories propounded by the Plaintiff to the Defendants:
INTERROGATORY NO. 1: Please state the full name, address, and job
position of each person, who provided information used in answering these
interrogatories.
INTERROGATORY NO. 2: Please identity the entity that was being operated
as a business on August 2, 2014, and located at 210 Parcel Drive, Jackson,
Mississippi.
INTERROGATORY NO. 3: Please identify the owner/operator of the entity
being operated as a business at 210 Parcel Drive, Jackson, Mississippi on August
2, 2014.
(See Plaintiffs Discovery Requests attached as Exhibit 1).
5.

On April 14, 2015, Black Diamonds counsel responded to the Plaintiffs good

faith attempt to obtain the outstanding discovery responses and stated in an email that he (James
Bubba Scarff, attorney for Black Diamonds) was waiting on documents from the Home
Office. (See April 14, 2015 Email attached as Exhibit 2).
6.

On April 22, 2015, counsel for Black Diamonds (Mr. Scarff) advised that I have

received all the documents that I requested from the home office and that [he] expects to have
all discovery responses to [Plaintiffs counsel] by Wednesday of next week.

(See April 22,

2015 Email attached as Exhibit 3).

7.

Despite Mr. Scarffs assurance that he would respond to the Plaintiffs discovery

requests, he did not. Accordingly, on May 1, 2015, the Plaintiff filed his Motion to Compel
Discovery Responses (See Dkt. #9).

Case: 25CO1:14-cv-03969

8.

Document #: 44

Filed: 11/14/2016

Page 4 of 13

On September 21, 2015, this Honorable Court granted Plaintiffs Motion to

Compel Discovery Responses and issued its Order compelling the Defendants to respond to
Plaintiffs discovery requests propounded to the Defendants within 30 days. (See Order Granting
Motion to Compel Discovery Responses, Dkt. #12).
9.

Black Diamonds again refused to answer discovery as ordered by this Honorable

Court, and thereafter on October 26, 2015, Plaintiff filed his Motion to Impose Sanctions for
Contempt. (See Dkt. #13). Pursuant to M.R.C.P. 37(b)(2)(C), the Plaintiff moved for a default
judgment against the Defendants and requested an award for attorneys fees.
10.

On November 2, 2015, the Defendants, through counsel, filed their Response in

Opposition to Plaintiffs Motion to Impose Sanctions for Contempt and asserted that Plaintiff
has failed to file against Daniel Owens individually and has served a non-existent entity.
(See Dkt. #15) (emphasis added).
11.

On or about January 7, 2016, a hearing was held on the Plaintiffs Motion to

Impose Sanctions, and on January 12, 2016, this Honorable Court entered its Order Imposing
Sanctions for Contempt against the Defendants. (See Dkt. #20). As a sanction, this Honorable
Court deemed all matters alleged in the Plaintiffs Complaint to be admitted and further ordered
that the Defendants pay attorneys fees in the amount of $1,500.00. Id. The Court also set a
hearing date for a determination of damages to be awarded to the Plaintiff. Id.
12.

On February 25, 2016, pursuant to this Honorable Courts Order dated January

12, 2016 (Dkt. #20), a hearing was held on damages and the Plaintiff was awarded damages in
the amount of $61,500.00 (which included the amount sued of $60,000.00, plus attorneys fees
of $1,500.00 as ordered in the Courts January 12, 2016 Order Imposing Sanctions for

Case: 25CO1:14-cv-03969

Document #: 44

Filed: 11/14/2016

Page 5 of 13

Contempt), together with post-judgment interest thereon at the rate of 18% per annum until paid
in full. (See Judgment, Dkt. #21). The Judgment was entered on March 1, 2016.
ARGUMENT
BLACK DIAMONDS IS ATTEMPTING
TO AVOID THE JUDGMENT
13.

The Judgment against Black Diamonds should not be set aside because: 1) more

than six months have passed since the Default Judgment was entered against Black Diamonds; 2)
the Plaintiff will suffer prejudice if the default judgment is set aside; 3) Black Diamonds has no
colorable defense to the admitted facts; and 4) Black Diamonds has not shown specific facts of
any legitimate defense by affidavit or other reliable evidence.
14.

When considering Black Diamonds Motion to Set Aside Default Judgment, this

Honorable Court may consider three (3) factors:

i. whether the default was caused by excusable neglect or a bona fide
technical error;
ii. whether the Plaintiff will suffer prejudice if the judgment is set aside; and
iii. whether Black Diamonds has a colorable defense to the merits.
State Highway Commn of Miss. v. Hyman, 592 So.2d 952, 955 (Miss. 1991).
15.

Further, Black Diamonds must show the specific facts of a meritorious defense by

affidavit or other sworn form of evidence. American Cable Corp. v. Trilogy Communications,
Inc., 754 So.2d 545 (Miss. 2000).
16.

Rule 60(b) states in part:

On motion and upon such terms as are just, the court may relieve a party or his
legal representative from a final judgment, order, or proceeding for the following
reasons:
1. fraud, misrepresentation, or other misconduct of an adverse party;
2. accident or mistake;
3. newly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under Rule 59(b);

Case: 25CO1:14-cv-03969

Document #: 44

Filed: 11/14/2016

Page 6 of 13

4. the judgment is void;

5. the judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have
prospective application;
6. any other reason justifying relief from the judgment.
17.

First, Black Diamonds Motion is time barred.

Rule 60(b) requires that all

motions to set aside a judgment be made in a reasonable amount of time.

18.

On January 12, 2016, this Honorable Court deemed all matters set forth in the

Plaintiffs Complaint as admitted due to Black Diamonds continued refusal to simply answer the
written discovery that was propounded to it by the Plaintiff after being compelled to do so. From
and after January 12, 2016, Black Diamonds waited two hundred and thirty-five (235) days to
file its Motion to Set Aside the Default Judgment. (See Dkt. # 32). Black Diamonds request has
not been made within a reasonable amount of time.
19.

Moreover, Black Diamonds asserts that the Judgment should be set aside because

of an accident or mistake by its former counsel. However, such an argument is without legal or
factual merit. Interestingly, Black Diamonds defended the lawsuit for nearly two (2) years
before the Judgment was entered. In fact, Black Diamonds was served with this lawsuit six
hundred and forty seven (647) days before requesting to have the Judgment set aside. (See Dkt.
#4 and #32). Black Diamonds request has not been made within a reasonable amount of time.
20.

Additionally, the Rule requires that a party moving to set aside a Judgment for (1)

fraud, misrepresentation, or any other misconduct of an adverse party, (2) accident or mistake, or
(3) newly discovered evidence request the Judgment be set aside not more than six months
after the judgment, order, or proceeding was entered or taken. MRCP 60(b).
21.

Black Diamonds has failed to show (1) fraud, misrepresentation, or any other

misconduct of the Plaintiff; (2) accident or mistake; or (3) newly discovery evidence which could

Case: 25CO1:14-cv-03969

Document #: 44

Filed: 11/14/2016

Page 7 of 13

not have been discovered in time to move for a new trial under Rule 59(b). Instead, Black
Diamonds argues, After learning of the default in this matter, Defendant terminated the services
of his attorney and obtained the services of undersigned as his attorney. As such, he should be
allowed to move for, and be granted, relief from the Courts judgment under M.R.C.P. Rules
54(c) and 60(b).
22.

It can only be assumed that Black Diamonds seeks to set aside this Honorable

Courts Judgment pursuant to Rule 60(b)(6), Any other reason justifying relief from the
judgment. Rule 54(c) is not applicable to setting aside the Judgment.
23.

However, Black Diamonds has failed to set forth any facts or reasons which

would justify it being relieved from the Judgment previously entered by this Honorable Court.
24.

Mississippi law is clear in that neither ignorance nor carelessness on the part

of an attorney will provide grounds for relief. Stringfellow v. Stringfellow, 451 So. 2d 219, 221
(Miss. 1984). (emphasis added).
25.

Black Diamonds entire argument rests on the hope that this Honorable Court will

forgive and forget Black Diamonds repeated refusal to respond to Plaintiffs simple discovery
requests, which had they been answered, would have gone to the heart of the only defense being
raised post Judgment by the Defendants: Plaintiff failed to name, in whole or in part, an entity
or an individual that owns or operates Black Diamonds.
26.

After Plaintiff, through his attorney, attempted to in good faith resolve the

discovery dispute between the parties, Defendants were compelled by Order of this Court dated
September 22, 2015 to provide discovery responses to the Plaintiff within 30 days. Even after
being compelled by this Honorable Court, Black Diamonds, without justification, still refused to
answer basic discovery served on it by the Plaintiff. This Court, upon Plaintiffs Motion,

Case: 25CO1:14-cv-03969

Document #: 44

Filed: 11/14/2016

Page 8 of 13

rightfully imposed sanctions against the Defendants for refusing to comply with this Courts
Order without justification. In doing so, a default judgment was properly entered against the
Defendants by this Honorable Court. Thereafter, a hearing on Plaintiffs damages was held
before this Honorable Court and a valid and proper Judgment was entered on March 2, 2016.
Black Diamonds has failed to come forward with any evidence whatsoever that justifies this
Court setting aside the Judgment previously entered against Black Diamonds in this matter. As
such, Black Diamonds Motion to Set Aside Default Judgment should be denied.
THE JUDGMENT OF THIS COURT IS NOT VOID
27.

Black Diamonds purported owner, manager, and registered agent was personally

served with notice of these proceedings on November 25, 2014 when Daniel Owens was
personally served at Black Diamonds Nightclub, located at 210 Parcel Drive, Jackson,
Mississippi. (See Dkt. #4).
28.

MRCP 4(d)(4) allows for service upon a domestic corporation, partnership, or

other unincorporated association by delivering a copy of the summons and complaint to an

officer, a managing or general agent.
29.

At the time Plaintiff was injured on the property known as and being operated as

Black Diamonds Nightclub, Black Diamonds was an unregistered business entity until after this
Honorable Court deemed all facts in the Plaintiffs Complaint as admitted. On March 1, 2016,
Black Diamonds formally registered with the Secretary of State of Mississippi as Black
Diamonds of Jackson, LLC. (See Certificate of Formation for Black Diamonds of Jackson,
LLC, attached as Exhibit 4). At that time, Daniel Owens was listed as the Registered Agent for
Black Diamonds of Jackson, LLC. Id.

Case: 25CO1:14-cv-03969

30.

Document #: 44

Filed: 11/14/2016

Page 9 of 13

As stated in footnote 2 above, Daniel Daxon Owens (Dax), Daniel Danny

McGee Owens, and Blake Owens own, manage, and operate a chain of strip clubs and related
businesses in multiple states, including Texas, Tennessee, and Mississippi. According to public
records and news articles, the Owens Family business, predominantly topless clubs and peep
shows, started in the 1970s. (See various News Articles, attached as Exhibit 5). In 1992,
Danny and Blake were indicted and subsequently convicted by a federal court in Tennessee for
multi-count indictments charging them with conspiracy, racketeering, prostitution, money
laundering, possession with intent to distribute a Schedule II controlled substance, and illegal
gambling. (See United States Court of Appeals, Sixth Circuit Opinion, attached as Exhibit 6).
The charges stemmed from their ownership/partnership in their illicit enterprise that was based in
Memphis, Tennessee. Id. Blake was also convicted of kidnapping as a result of a separate
prosecution. Id. Both Danny and Blake spent a significant amount of time in the federal
penitentiary. According to the Federal Bureau of Prisons, Blake was released from custody on
September 26, 2007, and Danny was released on June 17, 2016 roughly three (3) months after
the Judgment in the case sub judice was entered. (See Federal Bureau of Prison Inmate Locator
printouts, attached as Exhibit 7).
31.

Black Diamonds was properly served with Plaintiffs Complaint.

Black

Diamonds participated in the defense of the Plaintiffs lawsuit for over a year. However, Black
Diamonds refused to answer simple written discovery after being compelled to do so by this
Court. After entering default judgment against Black Diamonds for its failure to answer written
discovery, this Honorable Court held a hearing on damages and entered its Judgment. The
Judgment is valid and Black Diamonds has failed to set forth any facts to show otherwise. As
such, Black Diamonds Motion to Set Aside Default Judgment should be denied.

Case: 25CO1:14-cv-03969

Document #: 44

Filed: 11/14/2016

Page 10 of 13

BLACK DIAMONDS HAS NO COLORABLE DEFENSE

32.

Any colorable defense requires, more than a mere wish and a prayer. In order to

show a creditable defense in the present setting, a party must show facts, not conclusions, and
must do so by affidavit or other sworn form of evidence. Tippah Cty. v. Childers, 21 So. 3d 658,
662 (Miss. Ct. App. 2009).
33.

During the time that Danny Owens was incarcerated, it is undisputed that Black

Diamonds was operating as a business at 210 Parcel Drive in Jackson, Mississippi on (and
before) the date of the subject incident that occurred on August 2, 2014.
34.

Daniel Owens was absolutely the appropriate person to personally serve, as he

was one of the only owners, managers, partners, and/or registered agents of the business at the
time the Plaintiff was injured and when his lawsuit was filed.
35.

Less than one month after serving Daniel Owens, Black Diamonds attorney filed

an Answer. (See Dkt. #5). It is hornbook law that mistakes by Black Diamonds attorneys or
general counsel do not amount to good cause for the purposes of setting aside a default
judgment.
36.

Additionally, it is uncontested that counsel for Black Diamonds received the

discovery requests and that he purportedly requested and received the documents and
information needed to answer discovery from the Home Office in Memphis. (See Exhibit 2).
37.

Indeed, Black Diamonds has not, and cannot, make a showing of good cause or

excusable neglect for its failure to comply with this Courts direct Orders. Black Diamonds has
certainly not provided a shred of evidence through affidavit or other means that its refusal to
comply with this Courts Order compelling discovery responses was anything but blatant

10

Case: 25CO1:14-cv-03969

Document #: 44

Filed: 11/14/2016

Page 11 of 13

disregard of the civil process and laws of Mississippi. Tippah County v. Childers, 21 So.3d 658
(Miss. Ct. App. 2009); Stringfellow v. Stringfellow, 451 So.2d 219, 222 (Miss 1984).
38.

Other than attempting to delay execution on the Judgment, it is unclear why Black

Diamonds believes that its admitted registered agent (at the very least) could not receive process
for the business. Black Diamonds has not presented any evidence of improper service, which
requires a showing of the specific facts of the meritorious defenses by affidavit or other sworn
form of evidence. American Cable Corp. v. Trilogy Communiations, Inc., 754 So. 2d 545 (Miss.
2000).
39.

Further, a thorough review of the documents filed with the Secretary of State by

members of The Owens Family reveals a complex network of shell companies that can only be
interpreted as a scheme to avoid civil liability, service of process, and any other purpose that best
suits the family business at the time, legitimate or otherwise. (See Secretary of State Documents,
attached as Exhibit 8).
40.

For example, on September 8, 2016, the Owens Family created Diamonds Black

of Jackson, LLC. (See Exhibit 9). Put simply, Black Diamonds of Jackson, LLC is now
mirrored by Diamonds Black of Jackson, LLC. To further confuse matters, Daniel D. Owens
created Parcel Drive Entertainment, LLC in October 2015, which was formed after this
Honorable Court Ordered Black Diamonds to respond to discovery.3
41.

Finally, Black Diamonds makes an untimely assertion that the judgment is invalid

and should be set aside due to a mistake on the part of the Court in awarding the Plaintiff
$60,000.00 following a hearing on damages, which occurred after the default judgment was
entered.

Black Diamonds is located on Parcel Drive.

11

Case: 25CO1:14-cv-03969

42.

Document #: 44

Filed: 11/14/2016

Page 12 of 13

Under Mississippi law, after entry of default, the court must conduct an

evidentiary hearing on the record to determine damages in cases in which the plaintiff seeks
unliquidated damages. Capitol One Services, Inc. v. Rawls, 904 So. 2d 1010, 1018 (Miss. 2004);
see also M.R.C.P. Rule 55. The Court complied with all procedural requirements, thus this
argument is without merit.
43.

This case was adjudicated by this Court and it would be highly prejudicial to the

Plaintiff, as well as disturbingly unfair, to relitigate the issues that have been deemed admitted by
this Honorable Court based on Black Diamonds dilatory conduct during the litigation of this
matter. To now allow Black Diamonds to come into this Court and set Aside the Default
Judgment previously entered by this Court would serve as a disservice not only to the Plaintiff in
this case, but the entire judicial system of the great State of Mississippi.
44.

Moreover, setting aside the Judgment in this matter would only condone and

further facilitate Black Diamonds reprehensible conduct which has become clear during the
litigation of this matter, and post-judgment execution efforts of the Plaintiff.
WHEREFORE, PREMISES CONSIDERED, Plaintiff, Marteze Harris, requests that
this Court deny Black Diamonds Motion to Set Aside Default Judgment. The Plaintiff further
moves this Honorable Court for an order requiring Black Diamonds, or the attorney(s) advising it
or both, to pay reasonable expenses, including attorneys fees, for its dilatory conduct in this
matter.

Plaintiff further prays for any other general relief warranted but not specifically

requested herein.

12

Case: 25CO1:14-cv-03969

Document #: 44

Filed: 11/14/2016

Page 13 of 13

RESPECTFULLY SUBMITTED, this the 14th day of November, 2016.

Respectfully submitted,
MARTEZE HARRIS
By: /s/ Benjamin H. Wilson
Benjamin H. Wilson, MSB No. 103586
One of His Attorneys
OF COUNSEL:
BEN WILSON, ESQ. (MSB# 103586)
B.H. WILSON, PLLC
475 E. Capitol Street (39201)
Post office Box 2887
Jackson, Mississippi 39207
455 Pebble Creek Drive
Madison, Mississippi 39110
Telephone: (601) 707-9459
Facsimile: (601) 707-5915
Email: Ben@bhwilson.com

CERTIFICATE OF SERVICE
I hereby certify that I have this day served, via the Courts MEC Notification System, a
true and correct copy of the above and foregoing on all parties who receive such notices.
THIS the 14th day of November, 2016.
/s/ Benjamin H. Wilson
Of Counsel

13

Case: 25CO1:14-cv-03969

Document #: 2

Filed: 10/24/2014

Page 1 of 8

Case: 25CO1:14-cv-03969

Document #: 2

Filed: 10/24/2014

Page 2 of 8

Case: 25CO1:14-cv-03969

Document #: 2

Filed: 10/24/2014

Page 3 of 8

Case: 25CO1:14-cv-03969

Document #: 2

Filed: 10/24/2014

Page 4 of 8

Case: 25CO1:14-cv-03969

Document #: 2

Filed: 10/24/2014

Page 5 of 8

Case: 25CO1:14-cv-03969

Document #: 2

Filed: 10/24/2014

Page 6 of 8

Case: 25CO1:14-cv-03969

Document #: 2

Filed: 10/24/2014

Page 7 of 8

Case: 25CO1:14-cv-03969

Document #: 2

Filed: 10/24/2014

Page 8 of 8