MAC HH Regions File

Case 3:15-cv-00239-HTW-LRA Document 213 Filed 08/31/17 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
HEMPHILL CONSTRUCTION CO., INC.

AND RICHARD A. RULA, P.E., PRESIDENT
OF HEMPHILL CONSTRUCTION CO., INC. PLAINTIFFS/COUNTER-DEFENDANTS
v. CIVIL ACTION NO. 3:15cv239-HTW-LRA
REGIONS BANK DEFENDANT/COUNTER-PLAINTIFF/THIRD PARTY PLAINTIFF
v.
ROBERT B. COLLINS THIRD PARTY DEFENDANT
M.A.C. & ASSOCIATES LLC THIRD PARTY DEFENDANT
AND
MARCUS L. WALLACE THIRD PARTY DEFENDANT
ALL PARTIES’ JOINT MOTION

TO ADMINISTRATIVELY REOPEN THE CASE
FOR PURPOSES OF DISMISSING IT WITH PREJUDICE
Defendant/Counter-Plaintiff/Third Party Plaintiff Regions Bank (“Regions”),
Plaintiffs/Counter-Defendants Hemphill Construction Co., Inc. (“Hemphill”) and Richard A.
Rula, P.E., President of Hemphill Construction Co., Inc. (“Rula”), Third Party Defendant Robert
B. Collins (“Collins”) and Third Party Defendant M.A.C. & Associates LLC (“M.A.C.”) submit
this their Joint Motion to Administratively Reopen the Case for Purposes of Dismissing it With
Prejudice (“Joint Motion”). The Parties would jointly show:
1. On September 6, 2016, the Parties mediated all claims, counterclaims and third
party claims in this Action with mediator William Larry Latham.
2. At the conclusion of the mediation on September 6, 2016, the Parties reached a
contingent settlement of all claims, counterclaims and third party claims in this Action.
3. In the presence of the mediator, the Parties and their respective counsel signed a
1
settlement Memorandum of Understanding memorializing the contingent settlement terms.
4. The contingent settlement required certain Parties to engage in future performance
of certain actions and further involved some contingencies.
5. As part of their contingent settlement agreement, on September 8, 2016, the
Parties filed their [209] Joint Motion to Administratively Close Case, so as to permit the Parties
time to complete their respective performance obligations and attempt in good faith to satisfy
certain contingencies.
6. On September 16, 2016, the Court entered its [212] Agreed Order
Administratively Closing Case and Granting [209] All Parties’ Joint Motion to Effectuate
Executory Settlement Agreement.
7. The Parties have now satisfied all contingencies in their contingent settlement
agreement and jointly move this court to restore this Action to this Court’s active trial docket, for
the sole purpose of entering an Agreed Final Judgment of Dismissal of All Claims With
Prejudice, which will be tendered to the Court for entry by counsel.
WHEREFORE, PREMISES CONSIDERED, for the foregoing reasons, the Parties
jointly move the Court to restore this Action to this Court’s active trial docket, for the sole
purpose of entering an Agreed Judgment, which will be tendered to the Court for entry by
counsel.
[SIGNATURE PAGE FOLLOWS]
2
This, the 31st day of August, 2017.
Respectfully submitted,
REGIONS BANK
By: s/ E. Barney Robinson III (MSB #09432)
E. Barney Robinson III (MSB #09432)
Benjamin M. Watson (MSB #100078)
BUTLER SNOW, LLP
200 Renaissance at Colony Park, Suite 1400
1020 Highland Colony Parkway (39157)
Post Office Box 6010
Ridgeland, MS 39158-6010
(P) (601) 948-5711
(F) (601) 985-4500
(E) barney.robinson@butlersnow.com
(E) ben.watson@butlersnow.com
HEMPHILL CONSTRUCTION CO., INC. , RICHARD A. RULA, P.E.,

PRESIDENT OF HEMPHILL CONSTRUCTION CO., INC. and
ROBERT B. COLLINS
By: s/ David W. Mockbee (MB #3396)

David W. Mockbee (MB #3396)
Mary Elizabeth Hall (MB #9169)
David B. Ellis (MB #102926)
MOCKBEE HALL & DRAKE, P.A.
125 South Congress Street
Jackson, Mississippi 39201
(P) (601) 353-0035
(F) (601) 353-0045
(E) dmockbee@mhdlaw.com
(E) lhall@mhdlaw.com
(E) dellis@mhdlaw.com
M.A.C. & ASSOCIATES LLC and MARCUS L. WALLACE
By: s/ Robert L. Gibbs (MB #4816)

Robert L. Gibbs (MB #4816)
Tujuana S. McGee (MB #104263)
GIBBS TRAVIS PLLC
210 East Capitol Street, Suite 1801
(P) (601) 487-2640
(F) (601) 366-4295
(E) rgibbs@gibbstravis.com
(E) TMcGee@gibbstravis.com
3
CERTIFICATE OF SERVICE
I, E. Barney Robinson III, one of the attorneys for Regions Bank, do hereby certify that I
have this day caused a true and correct copy of foregoing instrument to be delivered to the
following, via the means indicated by CM/ECF:
David W. Mockbee (MB #3396)

Mary Elizabeth Hall (MB #9169)
David B. Ellis (MB #102926)
(P) (601) 353-0035
(F) (601) 353-0045
(E) dmockbee@mhdlaw.com
(E) lhall@mhdlaw.com
(E) dellis@mhdlaw.com
ATTORNEYS FOR HEMPHILL CONSTRUCTION CO., INC. , RICHARD A. RULA,

P.E., PRESIDENT OF HEMPHILL CONSTRUCTION CO., INC. and
ROBERT B. COLLINS

Tujuana S. McGee (MB #104263)
GIBBS TRAVIS PLLC
210 East Capitol Street, Suite 1801
(P) (601) 487-2640
(F) (601) 366-4295
(E) rgibbs@gibbstravis.com
(E) TMcGee@gibbstravis.com
ATTORNEYS FOR M.A.C. & ASSOCIATES LLC and MARCUS L. WALLACE
THIS the 31st day of August 2017.

4
IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
HEMPHILL CONSTRUCTION CO., INC.
AND RICHARD A. RULA, P.E., PRESIDENT
OF HEMPHILL CONSTRUCTION CO., INC. PLAINTIFFS/COUNTER-DEFENDANTS
v. CIVIL ACTION NO. 3:15cv239-HTW-LRA
REGIONS BANK DEFENDANT/COUNTER-PLAINTIFF/THIRD PARTY PLAINTIFF
v.
ROBERT B. COLLINS THIRD PARTY DEFENDANT
M.A.C. & ASSOCIATES LLC THIRD PARTY DEFENDANT
AND
MARCUS L. WALLACE THIRD PARTY DEFENDANT
REGIONS’ RESPONSE MEMORANDUM IN OPPOSITION TO

[41] THIRD PARTY DEFENDANT MARCUS L. WALLACE’S
FED. R. CIV. P. 12(B)(6) MOTION TO DISMISS
E. Barney Robinson III (MB No. 9432)

Benjamin M. Watson (MB No. 100078)
ATTORNEYS FOR DEFENDANT/COUNTER-

PLAINTIFF/THIRD PARTY PLAINTIFF
REGIONS BANK
OF COUNSEL:
BUTLER SNOW LLP

1020 Highland Colony Parkway
Suite 1400 (39157)
Ridgeland, Mississippi 39158-6010
(P) 601-948-5711
(F) 601-985-4500
TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1
I. SUMMARY OF ARGUMENT .....................................................................................1
II. FACTS ...........................................................................................................................2
A. THE ALLEGATIONS IN PLAINTIFFS’ COMPLAINT....................................2
B. REGIONS’ THIRD PARTY COMPLAINT AGAINST M.A.C.

AND WALLACE .................................................................................................3
III. THE STANDARD FOR A FED. R. CIV. P. 12(B)(6) MOTION ...............................14
ARGUMENT.................................................................................................................................15
I. WALLACE HAS CAPACITY TO BE SUED AS AN INDIVIDUAL

CAPACITY PARTY TO THE ACCOUNT PACKAGE WITH
REGIONS ON THE M.A.C. 2202 DDA.....................................................................15
CONCLUSION..............................................................................................................................16
CERTIFICATE OF SERVICE ......................................................................................................18
i
TABLE OF AUTHORITIES
Cases
Culbertson v. Lykos, No. 13-20569, 2015 U.S. App. LEXIS 10454

(5th Cir. Tex. June 22, 2015) ............................................................................................ 14
Statutes
Miss. Code Ann. § 79-29-311............................................................................................... 1, 2, 16
Rules
Fed. R. Civ. P. 12...................................................................................................................... 1, 14
Fed. R. Civ. P. 14.......................................................................................................................... 15
ii
Defendant/Counterclaimant/Third Party Plaintiff Regions Bank ("Regions"), submits this
Response Memorandum in Opposition to Third Party Defendant Marcus L. Wallace’s
(“Wallace”) [41] Fed. R. Civ. P. 12(b)(6) Motion to Dismiss.
INTRODUCTION
I. SUMMARY OF ARGUMENT
Wallace’s [41] Motion to Dismiss is simple and therefore subject to a simple response.
Wallace correctly contends that under a part of the Mississippi Revised Limited Liability
Company Act, specifically, Miss. Code Ann. § 79-29-311(1), a member of a LLC cannot be
liable for a LLC debt or obligation “solely by reason of being a member” of the LLC, absent
proof sufficient to pierce the corporate veil. Id. Again, Regions agrees with Wallace on that
legal proposition.
However, Wallace’s [41] Motion to Dismiss should be denied because Regions has not
asserted a third party claim against Wallace solely because of his acts on behalf of his LLC,
M.A.C. Construction & Associates LLC (“M.A.C.”). Further, Regions is not (at this time)
attempting to impose individual capacity liability on Wallace by piercing M.A.C.’s corporate
veil.1 Rather, Regions has asserted a claim against Wallace due to his breach of a contract to
which he is a party in his individual capacity.
Specifically, and as described in more detail below, by signing the signature card for the
demand deposit account no. ******2202 (“DDA 2202”) with Regions, ([2] at 49, ¶156), Wallace
bound himself in his individual capacity to the Regions Deposit Agreement, which was
incorporated by reference into the Account Opening Package, and which defines “You, your,
yours, depositor, and customer” to include “any person or entity that uses the account or is
1
Regions reserves the right to assert such an argument in the event Regions adduces evidence to
support one. However, Regions is not currently arguing for piercing M.A.C.’s corporate veil.
1
authorized to transact business on the account…” ([2] at 54, ¶195), and further provides that
“you agree to the terms of this [Deposit] Agreement. ([2] at 55, ¶196) (emphasis added).
In other words, Wallace, in his individual capacity, is a contracting party to the Deposit
Agreement, just as is M.A.C. – and Wallace therefore has capacity to be sued for breach of that
contract. This result is entirely consistent with the statute relied upon by Wallace in his [41]
Motion and [42] Memorandum, Miss. Code Ann. § 79-29-311(3) (1972), which provides that
“(3) Notwithstanding the provisions of subsections (1) and (2) of this section, 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 liabilities of the limited liability company.”
Id. Wallace’s [41] Motion to Dismiss should therefore be denied.
II. FACTS
A. THE ALLEGATIONS IN PLAINTIFFS’ COMPLAINT
Plaintiff Hemphill Construction Co., Inc. and its President, Richard A. Rula, have sued
Regions Bank for not honoring a putative dual signature provision on a signature card submitted
by Third Party Defendant M.A.C. & Associates LLC, a former account holder at Regions. ([1-1]
at 5-6, ¶¶6-7.) According to Hemphill, M.A.C. is a subcontractor to Siemens Industry, Inc.,
which holds a contract with the City of Jackson for certain repairs to Jackson’s water and sewer
system. ([1-1] at 5, ¶4.)
Hemphill contends that M.A.C. opened a checking account at Regions, into which
Siemens was to periodically deposit funds for M.A.C.; portions of which were due from M.A.C.
to Hemphill for its subcontractor work. ([1-1] at 5-6, ¶¶4-7.) According to Hemphill, Hemphill
unilaterally placed a putative dual signature requirement on the standard Regions signature card
by manually altering it with a typewriter, supposedly in order to ensure that Hemphill received
its appropriate portion of the Siemens payments for work on the project. ([1-1] at 5-6, ¶¶6-7.)
2
Plaintiffs allege that Rula was one of two authorized Hemphill signatories, along with Hemphill
Treasurer, (and Third Party Defendant), Robert B. Collins. ([1-1] at 6, ¶7.)
Hemphill and Rula contend that Regions failed to honor the supposed dual signature
requirement, enabling M.A.C. to withdraw or transfer funds from the account which Plaintiffs
contend were due Hemphill for its subcontractor work on the water project. ([1-1] at 6, ¶8.)
Plaintiffs contend that M.A.C. unilaterally withdrew or transferred approximately $4,000,000 in
funds that Plaintiffs contend were due Hemphill. ([1-1] at 6, ¶8.) Plaintiffs further contend that
of that $4,000,000, Regions is liable for approximately $1,300,000, which Plaintiffs contend they
have not recovered from M.A.C. to date. ([1-1] at 8, ¶22.)
Regions agrees that Hemphill and M.A.C. altered the account’s signature card. E.g., ([1-
1] at 10.) However, as explained in detail in the Regions Deposit Agreement, Regions did not
agree to such a provision and does not honor such provisions, as between the signatories and
Regions. Rather, the Deposit Agreement explicitly provides that should a customer attempt to
place such a provision on a signature card, it is only effective as between the signatories, and not
enforceable as to Regions. See ([2] at 40-41, ¶126) (Regions Deposit Agreement stating
“[b]ecause our automated check processing precludes us from identifying items that require
multiple signatures, you agree that any multiple signature requirement is for your internal
purposes only, and you authorize us to debit your account even though the item contains less
than the required number of signatures”).
B. REGIONS’ THIRD PARTY COMPLAINT AGAINST M.A.C. AND WALLACE

Regions has asserted third party claims against both M.A.C. and Wallace, in Wallace’s
individual capacity. The third party claims against them are nearly identical – claims for specific
performance and breach of contract ([2] at 61-62, ¶¶206-217), and demanding indemnity and
reimbursement of Regions’ attorneys’ fees, costs and expenses in this Action, as permitted by the
3
Deposit Agreement to which they contracted. ([2] at 62, ¶217.) As explained above, Regions is
not contending Wallace is liable in his individual capacity because he is vicariously responsible
for M.A.C.’s liability. Regions is further not contending (at this time) that Wallace is liable
because Regions can pierce M.A.C.’s corporate veil.
Rather, Regions alleges – and the Deposit Agreement explicitly so provides – that
Wallace bound himself to the Deposit Agreement as a contracting party in his individual capacity
when he signed the signature card of the Account Package. He further bound himself personally
to the Wire Transfer agreement, each and every time he signed a wire transfer request form. A
summary of Regions’ allegations in that regard follows, all of which are taken directly from
Regions’ [2] Third Party Complaint.
….
….
4
….
….
5
….
6
….
7
8
….
9
10
11
12
([2] at 49-62.)
Thus, in summary, when Wallace signed the signature card on the M.A.C. DDA 2202, he
not only bound his LLC, M.A.C. to the Account Package (which includes the Deposit
Agreement), he also bound himself in his individual capacity due to the above-quoted language
on both the signature card and in the Deposit Agreement itself. ([2] at 38-39, ¶¶116, 124-25.)
Similarly, each and every time Wallace signed a Wire Transfer Request/Authorization
form for a wire transfer on the M.A.C. DDA 2202, Wallace, as “Originator” “by signing below”
13
“agree[d] to be bound by the terms and conditions of the Funds Transfer Agreement set forth on
the reverse side” of that document.2 ([2] at 46, ¶133.)
Thus, Wallace bound himself in his individual capacity to the Regions Deposit
Agreement, which was incorporated by reference into the Account Opening Package, and which
defines “You, your, yours, depositor, and customer” to include “any person or entity that uses the
account or is authorized to transact business on the account…” ([2] at 54, ¶195), and further
provides that “you agree to the terms of this [Deposit] Agreement. ([2] at 55, ¶196) (emphasis
added).
His signature therefore made Wallace an individual capacity party to the Account
Package, including its Deposit Agreement and Wire Transfer agreement – each of which (as pled
above) – obligate Wallace to indemnify Regions from adverse claims to the M.A.C. DDA 2202,
such as those being asserted against Regions by Plaintiffs in this case. E.g., ([2] at 45-46, ¶¶130-
134.) Regions’ third party claims against Wallace, (like its third party claims against signatories
Robert B. Collins and M.A.C.), are classic third party claims for specific performance and
indemnity, as permitted by Fed. R. Civ. P. 14.
III. THE STANDARD FOR A FED. R. CIV. P. 12(B)(6) MOTION

In one of its most recent articulations of the standard for a Fed. R. Civ. P. 12(b)(6)
2
The Deposit Agreement to which Wallace bound himself specifically incorporates by reference
the Wire Transfer Agreement:
See [2-1] at 8)
14
motion, the Fifth Circuit held:
A complaint must contain "sufficient factual matter, accepted as true, to 'state a

claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Id. (citing Twombly, 550 U.S. at 556). "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." Id. (quoting Twombly, 550 U.S.
at 556).
Culbertson v. Lykos, No. 13-20569, 2015 U.S. App. LEXIS 10454 (5th Cir. Tex. June 22, 2015).
Here, Regions’ [2] Third Party Complaint against Wallace for more than satisfies this standard.
ARGUMENT
I. WALLACE HAS CAPACITY TO BE SUED AS AN INDIVIDUAL CAPACITY PARTY TO THE
ACCOUNT PACKAGE WITH REGIONS ON THE M.A.C. 2202 DDA.
By signing the signature card for the M.A.C. 2202 DDA, ([2] at 49, ¶156), Wallace
bound himself in his individual capacity to the Regions Deposit Agreement, which was
incorporated by reference into the Account Opening Package, and which defines “You, your,
yours, depositor, and customer” to include “any person or entity that uses the account or is
authorized to transact business on the account…” ([2] at 54, ¶195), and further provides that
“you agree to the terms of this [Deposit] Agreement. ([2] at 55, ¶196.) The Deposit Agreement
further provides that “[w]e may also provide you with agreements and disclosure statements
(“Disclosure Statements”) govern certain services associated with your account, including,
….wire transfer services. Both this Agreement and the Disclosures Statements govern those
services.” ([2-1] at 7.) In other words, Wallace, in his individual capacity is a contracting party
to the Account Package, including the Deposit Agreement and Wire Transfer Agreement, just as
is M.A.C. – and Wallace therefore has capacity to be sued for breach of that contract.
Also, by signing the Wire Transfer Agreement, Wallace again bound himself in his
individual capacity to that document. See ([2] at 61, ¶204) (“By signing below, Originator
15
…agrees to be bound by the terms and conditions of the Funds Transfer Agreement set forth on
the reverse side hereof”). Thus, Regions’ third party claims against Wallace, (like its third party
claims against signatories Robert B. Collins and M.A.C.), are classic third party claims for
specific performance and indemnity, as permitted by Fed. R. Civ. P. 14.
The Account Package’s Deposit Agreement and Wire Transfer Agreement each of which
– (as pled above) – obligate Wallace to indemnify Regions from adverse claims to the M.A.C.
DDA 2202, such as those being asserted against Regions by Plaintiffs in this case. E.g., ([2] at
45-46, ¶¶130-134.) This result is entirely consistent with the statute relied upon by Wallace in
his [41] Motion and [42] Memorandum, Miss. Code Ann. § 79-29-311(3) (1972), which provides
that “(3) Notwithstanding the provisions of subsections (1) and (2) of this section, 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 liabilities of the limited liability
company.” Wallace’s [41] Motion to Dismiss should therefore be denied.
CONCLUSION
Wallace’s [41] Motion to Dismiss should be denied. Regions also seeks such further,
different or additional relief as may be appropriate under the premises.
This the 30th day of June, 2015.
Respectfully submitted,
REGIONS BANK
Benjamin M. Watson (MSB #100078)
16
OF COUNSEL:
BUTLER SNOW, LLP
200 Renaissance at Colony Park, Suite 1400
1020 Highland Colony Parkway (39157)
Ridgeland, MS 39158-6010
(P) (601) 948-5711
(F) (601) 985-4500
17
CERTIFICATE OF SERVICE
I, E. Barney Robinson III, one of the attorneys for Regions Bank, do hereby certify that I
have this day caused a true and correct copy of foregoing instrument to be delivered to the
following, via CM/ECF:
Mary Elizabeth Hall, Esquire (MB #9169)

David B. Ellis, Esquire (MB #102926)

GIBBS WHITWELL & TRAVIS PLLC
1400 Meadowbrook Road, Suite 100
THIS the 30th day of June, 2015.

18
Case 3:15-cv-00239-HTW-LRA Document 1-1 Filed 03/31/15 Page 1 of 36

MAC HH Regions File

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

MAC HH Regions File

Uploaded by

Copyright:

Available Formats

Case 3:15-cv-00239-HTW-LRA Document 213 Filed 08/31/17 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE

HEMPHILL CONSTRUCTION CO., INC.

v. CIVIL ACTION NO. 3:15cv239-HTW-LRA

REGIONS BANK DEFENDANT/COUNTER-PLAINTIFF/THIRD PARTY PLAINTIFF

ROBERT B. COLLINS THIRD PARTY DEFENDANT

M.A.C. & ASSOCIATES LLC THIRD PARTY DEFENDANT

MARCUS L. WALLACE THIRD PARTY DEFENDANT

ALL PARTIES’ JOINT MOTION

Plaintiffs/Counter-Defendants Hemphill Construction Co., Inc. (“Hemphill”) and Richard A.

Prejudice (“Joint Motion”). The Parties would jointly show:

party claims in this Action with mediator William Larry Latham.

2. At the conclusion of the mediation on September 6, 2016, the Parties reached a

settlement Memorandum of Understanding memorializing the contingent settlement terms.

4. The contingent settlement required certain Parties to engage in future performance

of certain actions and further involved some contingencies.

5. As part of their contingent settlement agreement, on September 8, 2016, the

Executory Settlement Agreement.

Prejudice, which will be tendered to the Court for entry by counsel.

WHEREFORE, PREMISES CONSIDERED, for the foregoing reasons, the Parties

[SIGNATURE PAGE FOLLOWS]

This, the 31st day of August, 2017.

HEMPHILL CONSTRUCTION CO., INC. , RICHARD A. RULA, P.E.,

By: s/ David W. Mockbee (MB #3396)

M.A.C. & ASSOCIATES LLC and MARCUS L. WALLACE

By: s/ Robert L. Gibbs (MB #4816)

following, via the means indicated by CM/ECF:

David W. Mockbee (MB #3396)

ATTORNEYS FOR HEMPHILL CONSTRUCTION CO., INC. , RICHARD A. RULA,

Robert L. Gibbs (MB #4816)

ATTORNEYS FOR M.A.C. & ASSOCIATES LLC and MARCUS L. WALLACE

THIS the 31st day of August 2017.

By: s/ E. Barney Robinson III (MSB #09432)

IN THE UNITED STATES DISTRICT COURT FOR THE

v. CIVIL ACTION NO. 3:15cv239-HTW-LRA

REGIONS BANK DEFENDANT/COUNTER-PLAINTIFF/THIRD PARTY PLAINTIFF

REGIONS’ RESPONSE MEMORANDUM IN OPPOSITION TO

E. Barney Robinson III (MB No. 9432)

ATTORNEYS FOR DEFENDANT/COUNTER-

BUTLER SNOW LLP

I. SUMMARY OF ARGUMENT .....................................................................................1

II. FACTS ...........................................................................................................................2

A. THE ALLEGATIONS IN PLAINTIFFS’ COMPLAINT....................................2

B. REGIONS’ THIRD PARTY COMPLAINT AGAINST M.A.C.

III. THE STANDARD FOR A FED. R. CIV. P. 12(B)(6) MOTION ...............................14

I. WALLACE HAS CAPACITY TO BE SUED AS AN INDIVIDUAL

CERTIFICATE OF SERVICE ......................................................................................................18

Culbertson v. Lykos, No. 13-20569, 2015 U.S. App. LEXIS 10454

Miss. Code Ann. § 79-29-311............................................................................................... 1, 2, 16

Fed. R. Civ. P. 12...................................................................................................................... 1, 14

Fed. R. Civ. P. 14.......................................................................................................................... 15

Defendant/Counterclaimant/Third Party Plaintiff Regions Bank ("Regions"), submits this

Response Memorandum in Opposition to Third Party Defendant Marcus L. Wallace’s

(“Wallace”) [41] Fed. R. Civ. P. 12(b)(6) Motion to Dismiss.

attempting to impose individual capacity liability on Wallace by piercing M.A.C.’s corporate

which he is a party in his individual capacity.

Id. Wallace’s [41] Motion to Dismiss should therefore be denied.

at 5-6, ¶¶6-7.) According to Hemphill, M.A.C. is a subcontractor to Siemens Industry, Inc.,

system. ([1-1] at 5, ¶4.)

Treasurer, (and Third Party Defendant), Robert B. Collins. ([1-1] at 6, ¶7.)

Plaintiffs contend that M.A.C. unilaterally withdrew or transferred approximately $4,000,000 in

have not recovered from M.A.C. to date. ([1-1] at 8, ¶22.)

than the required number of signatures”).

B. REGIONS’ THIRD PARTY COMPLAINT AGAINST M.A.C. AND WALLACE