IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION WARNOCK AND ASSOCIATES, LLC, and RUDOLPH M. WARNOCK, JR., an individual, Plaintiffs, v. MADISON COUNTY, MISSISSIPPI, DANIEL B. GUILLET, P.E., individually and in his official capacity as Madison County Engineer, TREY BAXTER, individually and in his official capacity as Madison County Supervisor, SHEILA JONES, individually and in her official capacity as Madison County Supervisor, DAVID BISHOP, individually and in his official capacity as Madison County Supervisor, GERALD STEEN, individually and in his official capacity as Madison County Supervisor, and PAUL GRIFFIN, individually and in his official capacity as Madison County Supervisor. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CAUSE NO.: 3:16-cv-00068-CWR- FKB MADISON COUNTY, MISSISSIPPI BY AND THROUGH THE MADISON COUNTY BOARD OF SUPERVISORS, Plaintiffs, v. RUDY WARNOCK AND WARNOCK & ASSOCIATES, LLC Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CAUSE NO.: 3:16-cv-240-DPJ-FKB Case 3:16-cv-00068-CWR-FKB Document 6 Filed 04/08/16 Page 1 of 6
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
WARNOCK AND ASSOCIATES, LLC, and RUDOLPH M. WARNOCK, JR., an individual, Plaintiffs,
v.
MADISON COUNTY, MISSISSIPPI, DANIEL B. GUILLET, P.E., individually and in his official capacity as Madison County Engineer, TREY BAXTER, individually and in his official capacity as Madison County Supervisor, SHEILA JONES, individually and in her official capacity as Madison County Supervisor, DAVID BISHOP, individually and in his official capacity as Madison County Supervisor, GERALD STEEN, individually and in his official capacity as Madison County Supervisor, and PAUL GRIFFIN, individually and in his official capacity as Madison County Supervisor.
Defendants.
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
CAUSE NO.: 3:16-cv-00068-CWR-FKB
MADISON COUNTY, MISSISSIPPI BY AND THROUGH THE MADISON COUNTY BOARD OF SUPERVISORS, Plaintiffs,
v.
RUDY WARNOCK AND WARNOCK & ASSOCIATES, LLC
Defendants.
) ) ) ) ) ) ) ) ) ) ) ) )
CAUSE NO.: 3:16-cv-240-DPJ-FKB
Case 3:16-cv-00068-CWR-FKB Document 6 Filed 04/08/16 Page 1 of 6
MEMORANDUM IN SUPPORT OF MOTION FOR CONSOLIDATION OF RELATED ACTIONS
COME NOW Warnock and Associates, LLC, and Rudolph M. Warnock, Jr. (collectively,
“Warnock”), respectfully submit this memorandum in support of their motion to consolidated the
two above-styled actions.
INTRODUCTION AND BACKGROUND
Warnock filed a Complaint in this Court on February 1, 2016 (See Dkt. Item No. 1, Case
No. 3:16-cv-00068-CWR-FKB), for declaratory and equitable relief under copyright law, and for
breach of contract against Defendant Madison County, Mississippi. Shortly after applying for
copyright registrations on three of the copyrighted project plans, Plaintiffs then filed their First
Amended Complaint on March 24, 2016 (See Dkt. Item No. 3, Case No. 3:16-cv-00068-CWR-
FKB), adding copyright infringement claims, and also adding as defendants several Madison
County officials (collectively, “Madison County”). All claims arise from and relate to work
performed by Warnock under several engineering services contracts between Warnock and
Madison County that were recently terminated by Madison County.
Apparently not confident in this Court’s ability to resolve the parties’ copyright and
contract disputes, on March 30, 2016, the Madison County Board of Supervisors filed suit in state
court in Madison County, alleging breach of contract by Warnock of the same contracts at issue in
the suit previously filed by Warnock in this Court. On April 4, 2016, Warnock removed Madison
County’s state court action to this Court, and the removed case was assigned case number 3:16-
cv-240-DPJ-FKB (See Dkt. Item No. 1, Case No. 3:16-cv-00240-DPJ-FKB).
Because the case originally filed by Warnock and the now-removed case filed by Madison
County both involve the same work product created by Warnock under the same contracts at issue
in both actions, consolidation of the two cases would expedite the trial, eliminate unnecessary
Case 3:16-cv-00068-CWR-FKB Document 6 Filed 04/08/16 Page 2 of 6
repetition, confusion, and costs, and avoid needless duplication of judicial resources. Accordingly,
the two cases should be consolidated under Rule 42(a) of the Federal Rules of Civil Procedure.
ARGUMENT
Rule 42(a) of the Federal Rules of Civil Procedure governs consolidation. Consolidation
is appropriate when, as here, actions involve common questions of law or fact. See, e.g., Fed. R.
Civ. P. 42(a); Mills v. Beech Aircraft Corp., 886 F.2d 758, 761-62 (5th Cir. 1989) (“A trial court
has broad discretion in determining whether to consolidate a case pending before it.”); Huene v.
United States, 743 F.2d 703, 704 (9th Cir. 1984) (“The district court, in exercising its broad
discretion to order consolidation of actions presenting a common issue of law or fact under Rule
42(a), weighs the saving of time and effort consolidation would produce against any
inconvenience, delay, or expense that it would cause.”); and Gentry v. Smith, 487 F.2d 571, 581
(5th Cir. 1973) (quoting Dupont v. S. Pac. Co., 366 F.2d 193, 195 (5th Cir. 1966)) (“In [the Fifth
Circuit], district judges have been ‘urged to make good use of Rule 42(a)… in order to expedite
the trial and eliminate unnecessary repetition and confusion.’”).
There are several factors district courts consider when weighing consolidation, including
whether the actions to be consolidated are pending before the same court; whether they involve
common parties; whether consolidation will result in any prejudice or confusion; the risk of
inconsistent adjudications of common factual or legal questions if the matters are tried separately;
whether consolidation will reduce the time and cost of trying the cases separately; and whether the
cases are at a similar stage of preparation for trial. Arnold & Co., LLC v. David K. Young
Consulting, LLC, 2013 U.S. Dist. LEXIS 50103, at *4 (W.D. Tex. 2013). The district court in
Arnold & Co. determined consolidation was appropriate in that case because there were common
questions of law and fact in that both cases involved interpretation of the same contracts between
Case 3:16-cv-00068-CWR-FKB Document 6 Filed 04/08/16 Page 3 of 6
the parties; both cases involved essentially the same parties; consolidation would not cause delay,
prejudice, or confusion; the cases were filed less than a month apart; no dispositive motions had
been filed; and very little discovery had occurred. Id. at *5-*6 (concluding from its analysis of
those factors that “consolidation will expedite trial of these cases and eliminate unnecessary
repetition and confusion”) . The factors considered by the Fifth Circuit in Beech Aircraft Corp.,
Gentry, and their progeny, as well as Arnold & Co., all weigh in favor of consolidating the two
cases at issue in this motion.
These two cases involve the exact same questions of law and fact in interpreting the same
contracts between the same parties. The cases were both recently filed, discovery has not begun,
and no dispositive motions have been filed. Consolidation would not cause any delay, prejudice,
or confusion, but would instead eliminate unnecessary time, repetition, and litigation costs, and
avoid the very real risk that proceeding separately would result in inconsistent adjudications of
common factual and legal questions.
Accordingly, as the Fifth Circuit urged in Gentry, this Court should “make good use of
Rule 42(a)… to expedite the trial and eliminate unnecessary repetition and confusion” and
consolidate the cases at issue here. See also Colorado Prop. Investors v. HCNO Servs., Inc., 1998
U.S. Dist. LEXIS 21204 (5th Cir. 1998) (after three actions for declaratory judgment and damages
under copyright claims were consolidated, Fifth Circuit held that it was not in the interest of
judicial economy to force multiple legal proceedings).
If consolidated, Rule 42 of the Uniform Local Rules of the U.S. District Courts for the
Northern and Southern Districts of Mississippi provides that the cases proceed in the lower docket
number and be tried by the judge assigned to such lower docket number. See L.U.CIV .R. 42 (“In
civil actions consolidated under FED.R.CIV. P. 42(a), the action bearing the lower or lowest
Case 3:16-cv-00068-CWR-FKB Document 6 Filed 04/08/16 Page 4 of 6
docket number will control the designation of the district or magistrate judge before whom the
motion to consolidate is noticed; the docket number will also determine the judge before whom
the case or cases will be tried….”). Accordingly, should this motion be granted, the consolidated
cases should proceed in case no. 3:16-cv-00068-CWR-FKB, with District Judge Reeves presiding.
CONCLUSION
For the reasons stated above, Warnock respectfully requests that the Court enter an order
consolidating the two above-styles cases and that such consolidated action proceed as case no.
3:16-cv-00068-CWR-FKB, with District Judge Reeves presiding.
Dated: April 8, 2016.
Respectfully submitted, /s/Dorsey R. Carson, Jr. Dorsey R. Carson, Jr., Esq. (MSB #10493) David S. Humphreys, Esq. (MSB #100085) Julie C. Skipper, Esq. (MSB #101591) S. Anna Powers, Esq. (MSB #103201) Attorneys for Warnock and Associates, LLC, and Rudolph M. Warnock, Jr.
I, Dorsey R. Carson, Jr., hereby certify that I filed a copy of the foregoing Motion to
Consolidate, and it has been served on the following by via U.S. Mail on this the 8th day of April,
2016:
Mr. Gerald Steen 312 Bob White Lane Ridgeland, MS 39157 Ms. Sheila Jones 120 Hampton Way Madison, MS 39110 Mr. David Bishop 149 Woodland Springs Drive Ridgeland, MS 39157 Mr. Paul Griffin 173 Highway 17 Camden, MS 39045 Mr. Daniel B. Gaillet, P.E. 1241 Ratliff Ferry Road Lot 7 Canton, MS 39046 Mr. Trey Baxter 122 Northlake Drive Madison, MS 39110
/s/Dorsey R. Carson, Jr. OF COUNSEL
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION MADISON COUNTY, MISSISSIPPI by and through PLAINTIFFF the MADISON COUNTY BOARD OF SUPERVISORS V. CAUSE NO. 3:16-cv-240-DPJ-FKB RUDY WARNOCK and WARNOCK & ASSOCIATES, LLC DEFENDANTS MADISON COUNTY’S MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Fed. R. Civ. P. 65, Madison County, Mississippi, by and through the Madison
County Board of Supervisors, moves for a preliminary injunction against Defendants Rudy
Warnock and Warnock & Associates, LLC requiring their delivery of the following documents
to Madison County and/or Mississippi’s State Aid Engineer and/or the Mississippi Department
of Environmental Quality for the reasons set forth in Madison County’s Memorandum in
Support:
A. Warnock State Aid Contracts, Preliminary Engineering Phase Projects - Any and all plans prepared and all other engineering documents prepared or received as of December 31, 2015 for the following:
1. STP 6979 (1)B Robinson Springs Road 2. SAP 45(7)M Patrick Road, Virila Road, Pocahontas Road, Lake Cavalier
Road, Davis Crossing, Stump Bridge Road, North Old Canton Road 3. LSBP 45 16 Dinkins Street 4. LSBP 45 17 Ben Luckett Road 5. LSBP 45 18 Way Road B. Warnock State Aid Contracts, Construction Engineering Phase Projects – Any
and all engineering documents required by State Aid to close out or complete the following:
1. SAP-45(12)M Pear Orchard/Rice Road
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2. LSBP-45(10) Moss Road 3. LSBP-45(11) Gus Green Road 4. LSBP-45(14) Permenter Road 5. LSBP-45(12) Cane Creek Road 6. SAP 45(11)M Livingston Road 7. LSBP-45(9) Dobson Avenue C. Warnock General Engineering Services Contract, Sulphur Springs project –
completion documents required by MDEQ, including but not limited to, a notice of completion and a set of “as-built” plans by the design engineer showing that the work was completed in substantial compliance with the plans approved by MDEQ in January, 2013.
Madison County also requests such other and further relief as this Court deems just and
proper.
This the 6th day of April, 2016. Respectfully submitted,
MADISON COUNTY, MISSISSIPPI BY AND THROUGH THE MADISON COUNTY BOARD OF SUPERVISORS
By its attorneys, MOCKBEE HALL & DRAKE, P.A. By: /s/ Alexander F. Guidry DAVID W. MOCKBEE, MSB #3396 ALEXANDER F. GUIDRY, MSB #101908 MOCKBEE HALL & DRAKE, P.A. 125 S. Congress Street, Suite 1820 Jackson, MS 39201 Tel: (601) 353-0035 Fax: (601) 353-0045 Email: [email protected][email protected]
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CERTIFICATE OF SERVICE
I, Alexander F. Guidry, do hereby certify that as of this date, I have filed electronically the foregoing with the Clerk of Court using the ECF system that sent notification to counsel. This the 6th day of April, 2016. /s/ Alexander F. Guidry Alexander F. Guidry
Case 3:16-cv-00240-DPJ-FKB Document 2 Filed 04/06/16 Page 3 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION MADISON COUNTY, MISSISSIPPI by and through PLAINTIFF the MADISON COUNTY BOARD OF SUPERVISORS V. CAUSE NO. 3:16-cv-240-DPJ-FKB RUDY WARNOCK and WARNOCK & ASSOCIATES, LLC DEFENDANTS
MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Plaintiff, Madison County, Mississippi, by and through the Madison County Board of
Supervisors (“Madison County”), files this Memorandum in Support of its motion for a
preliminary injunction per Fed. R. Civ. P. 65 against Defendants Rudy Warnock and Warnock &
Associates, LLC (“Warnock LLC”)(collectively “Warnock”), requiring the delivery of certain
documents in the possession of Warnock required to be provided by Madison County to several
State agencies.
I. INTRODUCTION
The parties dispute whether work has been properly performed and fully paid for under
various contracts between Madison County and Warnock. However, Madison County’s motion
for a preliminary injunction has nothing to do with the parties’ various money disputes. The
money disputes will be resolved another day. Madison County’s motion for a preliminary
injunction is before this Court because Rudy Warnock and Warnock LLC are in possession of
certain engineering documents prepared by Warnock for Madison County that the several State
agencies requires be provided by Madison County. Therefore, while Madison County is
demanding the documents, it is the State that ultimately requires them. As discussed in more
detail below, Warnock’s failure to deliver these engineering documents jeopardizes the public
Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 1 of 15
and has complied with all rules and regulations promulgated by the State Aid Engineer. Miss.
Code Ann. § 65-9-13.
5. Similarly, a county is eligible for LSBP funds if it has a bridge replacement
program, has employed a qualified engineer, agrees to construct the approaches to the bridge,
acquires the necessary rights of way, and relocates or makes adjustments to public utilities for
each bridge project in its jurisdiction. Miss. Code Ann. § 65-37-7.
6. Madison County participates in the State Aid Program and the LSBP Program.
7. Until December 31, 2015, Rudy Warnock was Madison County’s State Aid
County Engineer per the following State Aid Contracts:
a. Contract Agreement Covering Payment from State Aid Funds for the Engineering Services Performed on State Aid Projects (attached hereto as Exhibit “A”)
b. Contract Agreement Covering Payment from State Aid Funds for the
Engineering Services Performed on Local State Bridge and Rehabilitation (LSBP) Projects (attached hereto as Exhibit “B”)
Collectively referred to as the “Warnock State Aid Contracts.”
8. The State Aid Engineer’s General Rules, Regulations and Procedures are
incorporated into the Warnock State Aid Contracts. See Exs. “A” and “B.”
9. According to the Warnock State Aid Contracts, Madison County owns all
engineering documents created by Rudy Warnock for any and all State Aid Projects.
Specifically, Section V. ENGINEERING DOCUMENTS, provides:
All engineering documents, including survey notes, plans, tabulations of quantities, project diary and other project records, shall remain the property of the Board. A County Engineer who has prepared special designs, requiring above-normal work and cost, may retain the original drawings for said designs but shall furnish the Board and the State Aid Engineer, upon request, a copy of same for the project records.
Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 4 of 15
10. The Warnock State Aid Contracts were voided as of the end of the Madison
County Board of Supervisors’ term on December 31, 2015 per Mississippi law by vote of the
Board on January 4, 2016.
11. According to the State Aid Engineer, as of December 31, 2015, Rudy Warnock,
as Madison County’s State Aid County Engineer, had the following State Aid and LSBP
construction projects in progress:
a. Preliminary Engineering Phase Projects:
i. STP 6979 (1)B Robinson Springs Road – awaiting completion of final design plans, contract documents, and award of the construction contract;
ii. SAP 45(7)M Patrick Road, Virila Road, Pocahontas Road, Lake
Cavalier Road, Davis Crossing, Stump Bridge Road, North Old Canton Road – awaiting completion of preliminary design plans, final design plans, contract documents, and award of the construction contract;
iii. LSBP 45 16 Dinkins Street – awaiting utility certification, Army
Corp of Engineers permit and letter, and award of the construction contract;
iv. LSBP 45 17 Ben Luckett Road – awaiting completion of the
preliminary design plans, final design plans, contract documents, and award of the construction contract; and,
v. LSBP 45 18 Way Road – awaiting completion of the preliminary
design plans, final design plans, contract documents, and award of the construction contract.
b. Construction Engineering Phase Projects
i. SAP-45(12)M Pear Orchard/Rice Road – State Aid requested test reports on October 26, 2015. This project was accepted on February 19, 2016. Rudy Warnock still must submit a packet of State Aid final documentation, including required certifications;
ii. LSBP-45(10) Moss Road – The project is complete and the final
Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 5 of 15
inspection was done on October 2, 2012. State Aid is waiting on Rudy Warnock’s punch list certification and test reports per State Aid’s October 8, 2012 letter;
iii. LSBP-45(11) Gus Green Road – The project is complete. Rudy
Warnock still must submit test reports and final documentation per State Aid’s July 22, 2014 letter;
iv. LSBP-45(14) Permenter Road – The project is complete and final
inspection was done on October 20, 2015. Rudy Warnock still must submit two test reports and a packet of State Aid final documentation, including required certifications;
v. LSBP-45(12) Cane Creek Road – The project is complete and final
inspection was done on October 28, 2015. Rudy Warnock still must submit to State Aid the punch list certification, test reports and a packet of State Aid final documentation, including required certifications per State Aid’s October 20, 2015 letter;
vi. SAP 45(11)M Livingston Road – The project is complete and was
accepted on January 22, 2016. Rudy Warnock still must submit a packet of State Aid final documentation, including required certifications; and,
vii. LSBP-45(9) Dobson Avenue – Construction is in progress.
State Aid’s letters are not attached as Rudy Warnock should have a copy of same.
12. State Aid cannot allocate any further State Aid funding for Madison County
roadwork until State Aid receives all documents prepared by the County State Aid Engineer prior
to December 31, 2015 on those projects listed in ¶ 11.a. above.
13. State Aid also cannot allocate any further State Aid funds for Madison County
roadwork until the contracts listed in ¶ 11.b. above are closed out.
14. State Aid is receiving calls from contractors who have not been paid for work
completed on construction phase Madison County State Aid Projects and State Aid cannot issue
funds to pay those contractors because Rudy Warnock has not sent the required project closeout
documents to State Aid for those projects listed in ¶ 11.b. above.
Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 6 of 15
2. Madison County will suffer immediate and irreparable injury, loss or damage if Rudy Warnock does not relinquish Madison County’s State Aid documents “Irreparable harm requires a showing that: (1) the harm to the plaintiff is imminent; (2)
the injury would be irreparable; and (3) that the plaintiff has no other adequate legal remedy.”
Bond Pharm., Inc. v. Anazaohealth Corp., 815 F. Supp. 2d 966, 975 (S.D. Miss. 2011). “[T]he
central inquiry in deciding whether there is a substantial threat of irreparable harm to the plaintiff
is whether the plaintiff's injury could be compensated by money damages.” Id. at 974. “[W]hen
economic rights are especially difficult to calculate, a finding of irreparable harm may be
appropriate.” Trinity USA Operating, LLC v. Barker, 844 F. Supp. 2d 781, 787 (S.D. Miss.
2011).
Madison County is faced with imminent and irreparable harm if preliminary injunctive
relief is not granted requiring Rudy Warnock to relinquish to Madison County and/or State Aid
any and all State Aid engineering documents prepared by Rudy Warnock and required to close
out the projects in construction listed in ¶¶ 11.a and 11.b above because: 1) Madison County
cannot complete State Aid projects in progress without said engineering documents and Rudy
Warnock’s failure to perform leaves contractors unpaid; 2) Madison County cannot begin any
new State Aid projects until Rudy Warnock’s State Aid projects in construction are completed;
3) Madison County cannot begin any new State Aid projects until Rudy Warnock’s design phase
engineering documents are delivered; 4) Madison County will incur substantial unnecessary
costs to the detriment of Madison County taxpayers if Madison County has to pay to recreate any
engineering documents; and, 5) any delay in commencing new State Aid projects, either because
State Aid will refuse to issue new funds or because Rudy Warnock’s design engineering
documents are not delivered, will result in continued deterioration of roadway and bridge
Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 10 of 15
conditions within the County, which will lead to property damage, personal injury, and possibly
death. The only remedy to avoid such further deterioration is Rudy Warnock’s production of the
required engineering documents that are mandatory per the State Aid Engineer’s Rules and
Regulations to complete the design and close out the State Aid projects. Money damages are not
a substitute for the production and delivery for the required documentation, in terms of
protecting the safety of the traveling public on Madison County’s State Aid roads and bridges.
3. Minimal or at least a lessor likelihood of irreparable injury to Rudy Warnock in the event of the granting of the preliminary injunction Rudy Warnock will not be harmed by a preliminary injunction since Madison County is
the rightful and exclusive owner of any and all State Aid Contract engineering documents
created or received by Rudy Warnock and Rudy Warnock’s injuries, if any, are monetary.
Further, Rudy Warnock is not entitled to payment until he completes his work and payment is
made by State Aid to Madison County. Exs. “A” and “B.”
4. That the granting of the preliminary injunction will not disserve the public interest Rudy Warnock’s delivery of the required documents will indisputably serve the public’s
interest. Otherwise, Madison County cannot timely and properly maintain and/or upgrade its
State Aid roads and bridges. Further, in addition to the other public interest factors enumerated in
No. 2 above, this matter involves possession of property owned by Madison County (the
taxpayers) and non-delivery of that property by Rudy Warnock jeopardizes receipt of funds due
to Madison County for the upkeep and safety of Madison County roads and bridges. Therefore,
the public interest will be harmed if an injunction is not ordered.
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1. Substantial likelihood that Madison County will succeed on the merits
“To assess the likelihood of success on the merits, [the Court] look[s] to ‘standards
provided by the substantive law.’” Ins. Assocs. of Lamar County, LLC v. Bolling, 2014 U.S. Dist.
LEXIS 151446, at *6 (S.D. Miss. Oct. 24, 2014). “A plaintiff is not required to prove its
entitlement to summary judgment in order to establish a 'substantial likelihood of success on the
merits' for preliminary injunction purposes.” Id.
Warnock LLC failed and refused to submit required documents to MDEQ prior to
December 31, 2015, despite its contractual obligations to do so and despite MDEQ’s demand for
same. And again, most importantly, the State is demanding the delivery of those required
documents. Therefore, it is substantially likely that Madison County will succeed on the merits.
2. Madison County will suffer immediate and irreparable injury, loss or damage if Warnock LLC does not relinquish the Sulphur Springs project documents required by MDEQ “Irreparable harm requires a showing that: (1) the harm to the plaintiff is imminent; (2)
the injury would be irreparable; and (3) that the plaintiff has no other adequate legal remedy.”
Bond, 815 F. Supp. 2d at 975. “[T]he central inquiry in deciding whether there is a substantial
threat of irreparable harm to the plaintiff is whether the plaintiff's injury could be compensated
by money damages.” Id. at 974. “[W]hen economic rights are especially difficult to calculate, a
finding of irreparable harm may be appropriate.” Trinity, 844 F. Supp. 2d at 787.
Madison County is faced with imminent and irreparable harm if preliminary injunctive
relief is not granted. If the documents required by MDEQ are not submitted to MDEQ, Madison
County may face monetary penalties and possible destruction of the Sulphur Springs lake dam.
Without the dam certification documents, Madison County and the public cannot know that the
Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 12 of 15
dam is safe or whether additional measures are necessary to render the dam safe. That
uncertainty puts the using public at risk. Further, Madison County will incur unnecessary costs to
the detriment of Madison County taxpayers if it has to recreate the required documents or rebuild
the dam. Therefore, Warnock LLC must deliver the documents required by MDEQ to either
MDEQ or Madison County to complete the project to prevent Madison County’s violation of
state law, imposition of State monetary penalties, and/or deliberate destruction of its Sulphur
Springs Lake dam.
The only meaningful remedy is Warnock LLC’s production of the required close out
documents, which are mandatory by MDEQ to close out the Sulphur Springs project. Money
damages are not a substitute for the production and delivery for the required documentation.
3. Minimal or at least a lessor likelihood of irreparable injury to Warnock LLC in the event of the granting of the preliminary injunction Warnock LLC cannot be paid for work not performed. Further, Madison County believes
it has overpaid Warnock LLC for this project and is entitled to a credit. Warnock LLC will not
be irreparably harmed by relinquishing documents that Madison County has paid for since his
remedy, if any, is money damages.
4. That the granting of the preliminary injunction will not disserve the public interest Only a preliminary injunction will serve the public’s interest. Madison County cannot
ensure the safety of the Sulphur Springs park dam until Rudy Warnock delivers the required
close out documents for Madison County’s review and MDEQ’s approval. Further, In addition to
the public interest factors enumerated in No. 2 above, since the refusal to submit the required
documents to MDEQ involves the use and possible waste of Madison County’s taxpayer funds,
the public interest will be harmed if an injunction is not ordered.
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WHEREFORE, Madison County requests that Rudy Warnock be enjoined to deliver to
Madison County and/or State Aid and/or MDEQ all plans, specifications, test reports, “as-
builts,” notices of completion and any other engineering deliverables prepared or maintained by
Rudy Warnock and Warnock & Associates, LLC as of December 31, 2015 and as required by
State Aid and/or MDEQ as follows:
A. Warnock State Aid Contracts, Preliminary Engineering Phase Projects - Any and all plans prepared and all other engineering documents prepared or received as of December 31, 2015 for the following:
1. STP 6979 (1)B Robinson Springs Road 2. SAP 45(7)M Patrick Road, Virila Road, Pocahontas Road, Lake Cavalier
Road, Davis Crossing, Stump Bridge Road, North Old Canton Road 3. LSBP 45 16 Dinkins Street 4. LSBP 45 17 Ben Luckett Road 5. LSBP 45 18 Way Road B. Warnock State Aid Contracts, Construction Engineering Phase Projects – Any
and all engineering documents required by State Aid to close out or complete the following:
1. SAP-45(12)M Pear Orchard/Rice Road 2. LSBP-45(10) Moss Road 3. LSBP-45(11) Gus Green Road 4. LSBP-45(14) Permenter Road 5. LSBP-45(12) Cane Creek Road 6. SAP 45(11)M Livingston Road 7. LSBP-45(9) Dobson Avenue C. Warnock General Engineering Services Contract, Sulphur Springs project –
completion documents required by MDEQ, including but not limited to, a notice of completion and a set of “as-built” plans by the design engineer showing that
Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 14 of 15
the work was completed in substantial compliance with the plans approved by MDEQ in January, 2013.
Madison County also requests such other and further relief as this Court deems just and
proper.
This the 6th day of April, 2016.
Respectfully submitted,
MADISON COUNTY, MISSISSIPPI BY AND THROUGH THE MADISON COUNTY BOARD OF SUPERVISORS
By its attorneys, MOCKBEE HALL & DRAKE, P.A. By: /s/ Alexander F. Guidry DAVID W. MOCKBEE, MSB #3396 ALEXANDER F. GUIDRY, MSB #101908 MOCKBEE HALL & DRAKE, P.A. 125 S. Congress Street, Suite 1820 Jackson, MS 39201 Tel: (601) 353-0035 Fax: (601) 353-0045 Email: [email protected][email protected]
CERTIFICATE OF SERVICE
I, Alexander F. Guidry, do hereby certify that as of this date, I have filed electronically the foregoing with the Clerk of Court using the ECF system that sent notification to counsel. This the 6th day of April, 2016. /s/ Alexander F. Guidry Alexander F. Guidry
Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 15 of 15