warnock file merged

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 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


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


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


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.

OF COUNSEL: THE CARSON LAW GROUP Capital Towers 125 South Congress Street, Suite 1336 Jackson, Mississippi 39201 Telephone: (601) 351-9831 Facsimile: (601) 510-9056 [email protected] [email protected] [email protected] [email protected]


mailto:[email protected]



CERTIFICATE OF SERVICE

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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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

Case 3:16-cv-00240-DPJ-FKB Document 2 Filed 04/06/16 Page 1 of 3


2

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]



3


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


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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



safety.

More specifically, Rudy Warnock is wrongfully withholding Madison County’s State Aid

engineering documents as attempted leverage for payments allegedly owed by Madison County

on other road projects. In fact, no monies are owed and Rudy Warnock’s refusal to turn over

those State Aid engineering documents, which constitutes conversion of Madison County’s

property; prevents State Aid’s payments to contractors; jeopardizes Madison County’s ability to

begin new State Aid work, thereby jeopardizing the safety of those traveling Madison County’s

roads and bridges. Accordingly, Madison County is entitled to a preliminary injunction requiring

Rudy Warnock to deliver all State Aid engineering documents prepared by him or in his

possession to Madison County or directly to State Aid.

Similarly, Warnock LLC has failed and refused to timely submit the required engineering

documents prepared by him or prepared by others and in his possession to the Mississippi

Department of Environmental Quality for the benefit of Madison County, including, but not

limited to a notice of completion and a set of “as-built” plans prepared by Warnock LLC as

design engineer showing that the Sulphur Springs Lake dam was completed in substantial

compliance with Warnock LLC’s plans approved by MDEQ in January, 2013. Until those

documents are submitted, MDEQ will not issue a surface water impoundment permit. Since

impounding water without a permit is a violation of State law, Warnock LLC’s refusal to turn

over the required documents will result in money penalties assessed against Madison County,

could result in an MDEQ order that the lake be drained, and could impact the safety of Madison

County residents using the lake, and those downstream of the dam, if not properly constructed.

Therefore, the public’s safety could be at risk unless and until the required MDEQ documents are

turned over. Accordingly, Madison County is entitled to a preliminary injunction requiring



Warnock LLC to deliver all necessary Sulphur Springs engineering documents in his possession

to Madison County or directly to MDEQ.

Therefore, the only remedy available to the County to satisfy the County’s obligations to

the several State agencies is for Rudy Warnock’s and Warnock LLC’s delivery of the required

engineering documents, which are mandatory according to State Aid and MDEQ, respectively.

Money damages are not a substitute for the production and delivery of the required

documentation.

II. FACTS

A. State Aid Projects

1. During the previous term of the Madison County Board of Supervisors (2012-

2015), Rudy Warnock served as Madison County’s Miss. Code Ann. § 65-9-13 State Aid County

Engineer.

2. The Office of State Aid Road Construction administers the State Aid Road

Program. Miss. Code Ann. § 65-9-5. The Office of State Aid also administers the Local System

Bridge Replacement and Rehabilitation Program (“LSBP”). Miss. Code Ann. § 65-37-1.

3. The State Aid Road Program is funded from the proceeds of gasoline, diesel fuel

or kerosene taxes. Miss. Code Ann. §§ 27-65-75, 65-9-17. The LSBP is funded through a general

allocation from the State Legislature. Miss. Code Ann. § 65-37-13. The allocation of State Aid

and LSBP money to the various counties is determined by a statutory formula. Miss. Code Ann.

§§ 27-65-75, 65-37-17.

4. A county is eligible for State Aid if the State Aid system in the county has been

designated and approved, has employed a State Aid County Engineer, has an annual program

filed by its State Aid County Engineer and designated and approved by the State Aid Engineer,



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.



Exs. “A” and “B” at Section “V.”

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



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.



15. Rudy Warnock has refused to cooperate with Madison County and Madison

County’s new State Aid County Engineer to provide the necessary documents in Rudy

Warnock’s possession to transition the projects to the new State Aid County Engineer, to close

out the projects listed in ¶ 11.b. above and to begin construction of the projects listed in ¶ 11.a.

above, despite the fact that Madison County has paid Rudy Warnock to date for all services

provided in accordance with the payment terms of his contracts as Madison County’s State Aid

County Engineer. Specifically, those contracts provide for payment of fees calculated at 4.8% of

construction costs for design engineering services and 7.2% of construction costs for

construction engineering services due when funds are received from State Aid. See, Exs. “A”

and “B,” page one at paragraph beginning with “NOW THEREFORE.” On the projects listed in

¶ 11 above, Rudy Warnock has been paid all monies received from State Aid for those projects.

16. Madison County State Aid Project LSBP-45(9) Dobson Avenue is currently in

construction. As part of Rudy Warnock’s refusal to participate in the transition to Madison

County’s new State Aid County Engineer, Rudy Warnock did not submit any request for

payment to the contractor. Accordingly, the State Aid Engineer has statutorily appointed

Madison County’s new State Aid County Engineer to complete LSBP-45(9) Dobson Avenue. A

copy of the State Aid Engineer’s February 24, 2016 letter to Madison County is attached as

Exhibit “C.”

17. The inability to obtain the documents for the projects listed in ¶¶ 11.a. and 11.b.

above is directly delaying completion of the current work in progress and close out of completed

projects and, in turn, delaying the release of State Aid funds for new projects.

18. Rudy Warnock’s intentional and willful refusal to cooperate with the current State

Aid Engineer and Madison County’s new State Aid County Engineer is directly delaying



completion of the current work in progress and close out of completed projects and delaying the

release of State Aid funds for new projects.

B. Sulphur Springs

19. On January 3, 2012, Madison County entered into a “General Engineering

Services” contract with Warnock LLC.

20. The General Engineering Services Contract provides for Madison County to

direct Warnock LLC to perform engineering services on a project by project basis paid by the

hour. A copy of the General Engineering Services Contract is attached as Exhibit “D.”

21. Per the General Engineering Services Contract, Madison County assigned

Warnock LLC the design and construction administration of the Sulphur Springs Recreational

Park project.

22. Warnock LLC, as the project engineer, was required to submit to the Mississippi

Department of Environmental Quality a notice of completion and a set of “as-built” plans by the

design engineer showing that the Sulphur Springs park dam work was completed in substantial

compliance with the plans approved by MDEQ in January 2013. MDEQ has been requesting this

information since October 26, 2015. A copy of MDEQ’s January 20, 2016 letter is attached as

Exhibit “E.” Warnock has refused to provide the requested information that is in or should be in

his possession.

23. Without the above listed required documents, MDEQ will not issue a surface

water impoundment permit. Impounding water without a permit is a violation of State law.

24. Failure to comply with MDEQ’s requests will result in a final notice letter being

issued by MDEQ that will set a timeline for bringing this matter before the Commission on

Environmental Quality. The Commission can order that the lake be drained and that any dam



remaining in an unsafe condition be removed. Warnock LLC has failed and refused to submit the

required documents to the detriment of the citizens of Madison County, particularly those

desiring to safely enjoy the Sulphur Springs lake and those living downstream of the dam.

III. INJUNCTIVE RELIEF

In order to grant a preliminary injunction, this Court must determine that, “(1) [a]

substantial likelihood of success on the merits; (2) [a] substantial threat that plaintiff[s] will

suffer irreparable injury; (3) [that the] injury outweighs any harm the injunction might cause the

defendant[s]; and (4) [that the] injunction is in the public interest.” Campaign v. Miss. Dep't of

Human Servs., 2016 U.S. Dist. LEXIS 43897, *34 (S.D. Miss. Mar. 31, 2016).

A. State Aid Projects

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.

According to the plain language of the State Aid Contracts, Madison County is the

rightful and exclusive owner of all State Aid engineering documents. Exs. “A” and “B” at

Section “V.” Rudy Warnock’s State Aid work is not complete until he delivers the required

engineering documents to Madison County for State Aid, and he is not entitled to be paid until he

completes his work and State Aid pays Madison County for his work. Exs. “A” and “B.” Finally,

and most importantly, the State is demanding the delivery of those required engineering

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 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



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.



B. Sulphur Springs

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



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.



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



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]


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


warnock file merged

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