Case: 16-60205   Document: 00513798655   Page: 1   Date Filed: 12/15/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                              No. 16-60205                   December 15, 2016
                            Summary Calendar
                                                                 Lyle W. Cayce
                                                                      Clerk
BENJAMIN F. CROSBY, III, Individually and as Power of Appointment for
the Benjamin F. Crosby, Jr. Revocable Living Trust and the Paula Crosby
Revocable Living Trust; BENJAMIN F. CROSBY, JR., Individually and as
Co-Trustee of the Benjamin F. Crosby, Jr. Revocable Living Trust and the
Paula Crosby Revocable Living Trust; PAULA CROSBY, Individually and as
Co-Trustee of the Benjamin F. Crosby, Jr. Revocable Living Trust and the
Paula Crosby Revocable Living Trust,

                                        Plaintiffs - Appellants
v.

VICKIE P. HARIEL, Individually and in her Capacity as Clerk of the Circuit
Court, Pearl River County, Mississippi; E. BRAGG WILLIAMS, III; JOSEPH
H. MONTGOMERY, in his individual capacity as a lawyer/partner with
Williams, Williams & Montgomery, P.A.; JOSEPH H. MONTGOMERY, in his
official capacity as attorney for the Chancery Clerk of Pearl River County,
Mississippi; GREGORY P. HOLCOMB; WILLIAMS, WILLIAMS &
MONTGOMERY, P.A.; NEOPOST USA, INCORPORATED, NEOPOST,
INCORPORATED, NEOPOST LEASING, INCORPORATED, also known as
Hasler; ABC SURETY COMPANY; ABC INSURANCE COMPANY; XYZ
SURETY COMPANY; XYZ INSURANCE COMPANY,

                                        Defendants - Appellees




                Appeal from the United States District Court
                  for the Southern District of Mississippi
                          USDC No. 1:15-CV-413
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                                      No. 16-60205
Before DAVIS, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
       Appellants appeal the district court’s dismissal with prejudice of their
complaint for failure to state a claim upon which relief can be granted. See
Federal Rule of Civil Procedure 12(b)(6). Appellants’ only claim is that the
district court should have dismissed the complaint without prejudice. Finding
no abuse of discretion, we AFFIRM.
       I.     PROCEDURAL HISTORY
       Two families, the Crosbys and the Mittelstaedts, have been involved in
a “long-running and contentious litigation” with respect to the Mittelstaedts’
need for an easement to enter their property through the Crosbys’ adjacent
property. Crosby v. Mittelstaedt, 186 So.3d 415, 416 (Miss. App. 2016). In
February of 2014, the families reached a settlement agreement in which the
Mittelstaedts agreed to pay $25,000 and maintain a fence and gate on the
property, and, in exchange, the Crosbys agreed to grant the requested
easement. Id. Shortly thereafter, the Crosbys filed a lis pendens notice against
the Mittelstaedts’ property, claiming the fence and gate were in violation of the
settlement agreement. Id. at 416-17.
       The Mittelstaedts brought suit against the Crosbys in Mississippi state
court to enforce the settlement agreement. Id. On December 16, 2014, the
state court issued an order concluding that the gate and fence were not in
violation of the terms of the agreement, cancelling the lis pendens, and
enforcing the settlement agreement. Id. at 417. The court also found that “the



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

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                                     No. 16-60205
Crosbys had deliberately violated the court-approved settlement and had not
lived up to their obligation to carry out its terms in ‘good faith.’” Id. However,
the Crosbys did not receive notice of the December 16th order until after the
deadline for filing a notice of appeal. Id. The order had been mailed to the
Crosbys in an envelope from the Clerk of the Circuit Court of Pearl River
County, Mississippi, and the postage meter date was June 4, 2014, some six
months prior to the issuance of the order.
      The Crosbys moved to reopen the time for appeal pursuant to Rule 4(h)
of the Mississippi Rules of Appellate Procedure. Id. The trial court denied the
motion, and the Court of Appeals of Mississippi held that the trial court did
not abuse his discretion in denying the motion. Id.
      Meanwhile, on December 15, 2015, during the pendency of the state
court appeal, the Crosbys, who are citizens of Florida, brought a diversity
action in federal district court in Mississippi against: (1) Vickie P. Hariel
(“Hariel”), who was the Clerk of the Circuit Court of Pearl River County; (2)
the following lawyers who represented the Mittelstaedts in the state court
litigation, E. Bragg Williams, Joseph H. Montgomery, Gregory P. Holcomb and
Williams, Williams & Montgomery, P.A., (collectively “WWM”); (3) Neopost
USA, Inc. (“Neopost”), which was the company that leased the postage meter
to Pearl River County; and (4) several unidentified surety and insurance
companies. 1 The complaint alleged conspiracy, mail fraud, and obstruction of
justice stemming from the late notice of the judgment against them with
respect to the state court action.




      1The Crosbys also named as a defendant, Matthew O’Quain, law clerk to the judge
who presided over the state court proceedings. However, the Crosbys’ appeal involving
O’Quain was dismissed by a panel of this Court on May 23, 2016.
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                                    No. 16-60205
      WWM filed a motion to dismiss, arguing that the complaint failed to
state a claim upon which relief can be granted because the claims in the
complaint are all based on criminal statutes that do not provide any basis for
a civil cause of action. Defendants Hariel and Montgomery 2 also filed a joint
motion to dismiss. The Crosbys then filed a motion for leave to file a first
supplemental and amending complaint to plead specific damages and add
claims against Pearl River County, Judge Prentiss Harrell, MailFinance, Inc.,
Kathryn Adele Mittelstaedt, Carol Ann Mittelstaedt Koelemay, Douglas E.
Mittelstaedt and Elizabeth Ross Hadley.
      The Crosbys filed an amended response to Montgomery and Hariel’s
motion to dismiss. With respect to Montgomery, the Crosbys argued that they
did not name him as a defendant in his official capacity as the attorney for the
Pearl River County Board of Supervisors. Instead, the Crosbys asserted that
Montgomery was sued in his individual capacity. With respect to Hariel, the
Crosbys asserted that they named her both individually and in her capacity as
Clerk of the Court. The Crosbys argued that she failed to properly mail them
notice of the order in violation of her duties as Clerk and that her use of the
postage meter in the conspiracy to commit fraud “should give sufficient rise to
deny” the motion to dismiss.
      Neopost filed a motion to dismiss, arguing, among other things, that the
Crosbys’ claims are based upon criminal statutes that do not provide a private
right of action.    The Crosbys filed a response to this motion to dismiss,
asserting that Neopost owned the postage meter that was used in conjunction
with the mailing of the late notice. The Crosbys further asserted that Neopost



      2   Montgomery was responding in his official capacity as attorney for the Chancery
Clerk of Pearl River County.
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                                       No. 16-60205
had not cooperated with their subpoenas, and thus Neopost had participated
in the “coverup” of the conspiracy to deny them access to the courts.
      The district court granted the defendants’ motions to dismiss, ruling that
there is no private cause of action for violation of the three criminal statutes
relied upon by the Crosbys. Additionally, the court ruled that “[b]ecause the
law provides no basis for relief on Plaintiffs’ three claims, further amendment
is futile.” The Crosbys timely filed a notice of appeal.
      II.      DISMISSAL WITH PREJUDICE UNDER RULE 12(b)(6)
      The Crosbys expressly disavow any challenge to the district court’s
ruling that their complaint failed to state a claim under Rule 12(b)(6).
However, they do contend that the dismissal should have been without
prejudice. With respect to the standard of review, the Crosbys contend that
their claim should be reviewed de novo. We disagree. Although we review de
novo a district court’s dismissal of a complaint for failure to state a claim, 3 the
Crosbys are not challenging the grant of the Rule 12(b)(6) motion. Instead, as
stated above, they are arguing that the dismissal should have been without
prejudice. We have explained that “[b]ecause the district court is best situated
to determine when plaintiffs have had sufficient opportunity to state their best
case, we review [its] decision to grant a motion to dismiss with or without
prejudice only for abuse of discretion.” Club Retro, L.L.C. v. Hilton, 568 F.3d
181, 215 n.34 (5th Cir. 2009). Accordingly, we must determine whether the
district court abused its discretion in dismissing the complaint with prejudice.
      As set forth previously, the district court ruled that “[b]ecause the law
provides no basis for relief on Plaintiffs’ three claims, further amendment is




      3   See Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007).
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                                      No. 16-60205
futile.” 4 It is undisputed that the three criminal statutes relied upon in the
complaint do not afford the Crosbys a private action against the Appellees.
Nonetheless, the Crosbys argue that the district court should have dismissed
the complaint without prejudice because the facts as alleged in their complaint
could support other causes of action. The Crosbys give examples such as
negligent misrepresentation or civil liability based on the Mississippi
Racketeer Influenced and Corrupt Organization Act (“MRICO”). Miss. Code
§ 97-43-9. However, the Crosbys did not raise these claims before the district
court, and thus, the claims “‘cannot be asserted for the first time on appeal.’”
Alsenz v. Aurora Bank, 641 F. App’x 359, 362 (5th Cir. 2016) (quoting NCDR,
L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 752 (5th Cir. 2014)).
       Moreover, in their brief, the Crosbys do not explain how the facts alleged
in their complaint state a claim for negligent misrepresentation or civil liability
under MRICO. “Although we liberally construe pro se briefs, such litigants
must still brief contentions in order to preserve them.” Longoria v. Dretke, 507
F.3d 898, 901 (5th Cir. 2007). Under these circumstances, the Crosbys have
failed to show that the district court abused its discretion in dismissing their
complaint with prejudice.
       III.   CONCLUSION
       For the above reasons, the district court’s judgment is AFFIRMED.



       4 The district court did not expressly rule on the Crosbys’ motion for leave to amend
their complaint; however, it implicitly denied the motion when it held that any further
amendment would be “futile.” In any event, the Crosbys’ brief states that “this Court should
disregard any of the appellate arguments made by defendants as to Plaintiffs’ motion for
leave to file an amended complaint and Plaintiffs’ proposed amended complaint as they are
beyond the scope of the district court’s ruling and the issues raised on this appeal by the
Crosbys.” Reply brief at 11. Accordingly, we do not consider the motion or proposed amended
complaint in our analysis of the Crosbys’ argument.

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