Case 3:06-cv-00288-HTW-LRA Document 25 Filed 09/06/2006 Page 1 of 3

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

REBUTTAL IN SUPPORT OF 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 Rebuttal in Support of

Motion to Dismiss and in support thereof state the following:

1. Pursuant to F.R.C.P. 10, FSC and HE incorporate herein by reference their original

Motion to Dismiss and supporting memorandum.

2. Coughlin seeks to avoid dismissal of his claims against FSC and HE by asserting that

the veil piercing doctrine somehow precludes the dismissal of the claims against HE. See para. 8 and

pp. 2-3 of Coughlin’s response in opposition to the Motion to Dismiss of FSC and HE and related

memorandum, respectively. Coughlins veil piercing theory fails as a matter of law and/or otherwise

fails to state a claim under the applicable law. See para. 14 of the defendants’ Response to Motion

for Leave to File Amended Complaint, incorporated herein by reference pursuant to F.R.C.P. 10.

3. As set forth in the Motion to Dismiss of FSC and HE, Coughlin’s asserted

entitlement to a commission in relation to the Brantley Property specifically violates the real estate

brokerage provisions of the Mississippi Code as Coughlin has neither alleged nor is he, in fact, a

licensed real estate broker. See the Motion to Dismiss of FSC and HE at para. 3, incorporated herein

by reference pursuant to F.R.C.P. 10. It is undisputed that the Brantley Property is located in
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Mississippi. As a result, the real estate brokerage provisions of the Mississippi Code apply to the

Brantley Property transaction.

4. Despite the clear applicability of the Mississippi real estate brokerage provisions to

the Brantley Property transaction, Coughlin asserts that Utah law applies to his contract claim for

a commission in relation to the Brantley Property and cites Anderson v. Johnson, 160 P. 2d 725

(Utah 1945) for the proposition that he is entitled to the claimed commission. See para. 13 and pp.

3-4 of Coughlin’s response in opposition to the Motion to Dismiss of FSC and HE and related

memorandum, respectively. Coughlin’s reliance on Anderson is misplaced. The activities of the

Plaintiff in Anderson did not come within the provisions of the Utah real estate licensing provisions

because the plaintiff merely sought compensation from a broker for assisting him in obtaining a real

estate listing. Anderson, 160 P. 2d at 728-729. In contrast, Coughlin is claiming entitlement to a

commission in relation to the Brantley Property transaction arising from HE’s purchase of such

property and would run afoul of either the Utah or Mississippi real estate licensing provisions. See,

Anderson, 160 P. 2d at 728; and para. 3 of the Motion to Dismiss of FSC and HE.

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

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 6th day of September, 2006.

Defendants FranklinSquires Companies, LLC

and Hill Erickson, LLC

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

ONE OF THEIR ATTORNEYS

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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 September 6, 2006, 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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