Case 3:06-cv-00288-HTW-LRA Document 8 Filed 07/05/2006 Page 1 of 4

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

NICHOLAS COUGHLIN PLAINTIFF

VS. CIVIL ACTION NO. 3:06CV288-HTW-JCS

FRANKLINSQUIRES COMPANIES, LLC;

HILL ERICKSON, LLC AND C. RICK KOERBER DEFENDANTS

MOTION TO DISMISS

COME NOW Defendants FranklinSquires Companies, LLC (“FSC”) and Hill Erickson,

LLC(“HE”), by counsel, and pursuant to F.R.C.P. 12(b)(6) files this their Motion to Dismiss and in

support thereof state the following:

1. Plaintiff Nicholas Coughlin (“Coughlin”) alleges that he was an agent of FSC and

that, in connection therewith, Coughlin approached Mr. Jeff Brantley (“Brantley”) about purchasing

his Clinton, MS home (“Brantley Property”). Coughlin’s Complaint at paras. 14 and 15. Coughlin

further alleges that he “negotiated a deal with Jeff Brantley for the sale of his home” and that FSC

subsequently purchased the Brantley Property through HE, an entity Coughlin alleges is under the

control of FSC. Coughlin’s Complaint at paras. 16 and 18. Coughlin also alleges that FSC has

breached a contractual obligation to pay him a twenty-five percent commission arising out of FSC’s

purchase of the Brantley Property through HE. Coughlin’s Complaint at paras.21-24. Even if the

allegations of Coughlin’s Complaint were true, which is denied by FSC and HE, Coughlin fails to

state a claim against FSC and HE upon which relief can be granted.

2. For the purpose of a motion to dismiss pursuant to F.R.C.P. 12(b)(6), the allegations

of Coughlin’s Complaint must be taken as true. Fernandes-Montes v. Allied Pilots Assoc., 987 F.

2d 278, 284 (5th Cir. 1993). However, dismissal under Rule 12(b)(6) is proper where the pleadings
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on their face reveal that the plaintiff can prove no set of facts that would entitle the plaintiff to the

requested relief. Garrett v. Commonwealth Mort. Corp. of America, 938 F. 2d 591, 594 (5th Cir.

1991).

3. The facts pled by Coughlin reveal that his breach of contract claim for the payment

of a commission arising out of HE’s purchase of the Brantley Property fail to state a claim against

FSE and HE upon which relief can be granted. Miss. Code Ann. § 73-35-33(1) provides in pertinent

part,

No person ... shall bring or maintain an action in any court of this state for the recovery of
a commission ... for any act done or services rendered, the doing or rendering of which is prohibited
under the provisions of this chapter for persons other than licensed real estate brokers, unless such
person was duly licensed hereunder as a real estate broker at the time of the doing of such act or the
rendering of such service.

Miss. Code Ann. § 73-35-33(1)(1972, as amended).

Coughlin has alleged that he “negotiated a deal with Jeff Brantley for the sale of his home”,

that, based on such negotiations, FSC subsequently purchased the Brantley Property through HE and

that FSE has breached a contractual duty to pay Coughlin a commission arising out of such purchase.

Coughlin’s allegations clearly fall within the definition of real estate brokerage activities under

Mississippi law.

Miss. Code Ann. § 73-35-3(1) provides,

[t]he term “real estate broker”... shall include all persons, ... who for a fee, commission or
other valuable consideration, or who with the intention or expectation of receiving or collecting the
same, list, sell, purchase ... any real estate ... ; or who negotiate or attempt to negotiate any such
activity; ... ; or who direct or assist in the procuring of a purchaser or prospect calculated or intended
to result in a real estate transaction.

Miss. Code Ann. § 73-35-3 (1972, as amended). Moreover, in addition to criminal and/or civil

penalties, Miss Code Ann. § 73-35-31 provides that no person can recover a commission for real

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estate brokerage activities, as described in Miss. Code Ann. § 73-35-3 (1) (quoted above), unless

such a person is licensed as a real estate broker under Mississippi law.

Coughlin has neither alleged nor is he, in fact, a licensed real estate broker under the laws

of the State of Mississippi. As a result, since Coughlin is asserting a breach of contract claim for the

payment of a commission arising out of the performance of real estate brokerage activities, as

defined by Mississippi law, Coughlin is precluded from maintaining this action against FSC and HE.

4. Not only does Coughlin’s asserted claim for the payment of a commission violate

Mississippi law, Coughlin merely alleges that FSC, not HE, has breached a contract with Coughlin

to pay him the claimed commission. Therefore, even if FSC has breached a contract with Coughlin,

which is denied, there is no basis alleged in Coughlin’s Complaint upon which HE could be found

liable for a breach of contract to which it is not a party. Simply put, Coughlin has failed to state a

claim upon which relief can be granted against HE under a breach of contract theory even if

Coughlin’s asserted right to a commission did not violate Mississippi law.

5. For the reasons set forth herein, as well as those set forth in the Motion to Dismiss

of Defendant C. Rick Koerber, incorporated herein by reference pursuant to F.R.C.P. 10, all of

Coughlin’s claims against the defendants should be dismissed with prejudice. Further, at the time

Coughlin initiated this suit, Coughlin wrongfully filed a Lis Pendens Notice against and/or in relation

to the Brantley Property owned by HE. (See HE’s Counterclaim at paras. 16 and 19, as well as the

related exhibits, incorporated herein by reference pursuant to F.R.C.P. 10). Through a separate

motion, HE will seek the cancellation of Coughlin’s Lis Pendens Notice for the reasons set forth

herein, as well as others, that will be addressed in the motion.

WHEREFORE, PREMISES CONSIDERED, FSC and HE respectfully request the Court to

dismiss Coughlin’s claims against them with prejudice, that judgment be entered in favor of FSC and

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HE as a matter of law and that the Court award FSE and HE any and all other relief the Court deems

appropriate.

Respectfully submitted this the 5th day of July, 206.

Defendants FranklinSquires Companies, LLC

and Hill Erickson, LLC

BY: s/Eddie J. Abdeen (MSB#9321)

ONE OF THEIR ATTORNEYS

ATTORNEYS FOR DEFENDANTS

FRANKLINSQUIRES COMPANIES, LLC
AND HILL ERICKSON, LLC:

EDDIE J. ABDEEN, ESQ. (MSB #9321)

Attorney at Law
Post Office Box 2134
Madison, Mississippi 39130
Telephone: 601-607-4750
Facsimile: 601-427-0040

R. PAUL RANDALL, JR., ESQ. (MSB # 99960)

Willoughby, McCraney & Randall, PLLC
451 Northpark Drive, Suite A
Ridgeland, Mississippi 39157
Telephone: 601-956-2615
Facsimile: 601-956-2642

CERTIFICATE OF SERVICE

I hereby certify that on July 5, 2007, I electronically filed the foregoing with the Clerk of

the Court using the ECF System which sent notification of such filing to the following:

Xavier M. Frascona, Jr.

J. Fredrick Ahrend
Matthew Hetzel
FRASCOGNA COURTNEY, PLLC
P. O. Box 23126
Jackson, MS 39225

s/Eddie J. Abdeen

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