Case 3:16-cv-00068-CWR-FKB Document 6 Filed 04/08/16 Page 1 of 6

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.

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-00068-CWRFKB

)
)
)
)
)
)
)
)
)
)
)
)

CAUSE NO.: 3:16-cv-240-DPJ-FKB

Case 3:16-cv-00068-CWR-FKB Document 6 Filed 04/08/16 Page 2 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-CWRFKB), 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 Courts 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
Countys state court action to this Court, and the removed case was assigned case number 3:16cv-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 3 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 4 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 5 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.

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
dcarson@thecarsonlawgroup.com
dhumphreys@thecarsonlawgroup.com
jskipper@thecarsonlawgroup.com
apowers@thecarsonlawgroup.com

Case 3:16-cv-00068-CWR-FKB Document 6 Filed 04/08/16 Page 6 of 6

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

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

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MADISON COUNTY, MISSISSIPPI by and through
the MADISON COUNTY BOARD OF SUPERVISORS
V.

PLAINTIFFF
CAUSE NO. 3:16-cv-240-DPJ-FKB

RUDY WARNOCK and

WARNOCK & ASSOCIATES, LLC

DEFENDANTS

MADISON COUNTYS 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 Mississippis State Aid Engineer and/or the Mississippi Department
of Environmental Quality for the reasons set forth in Madison Countys Memorandum in
Support:
A.

B.

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

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

\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Mot Preliminary Injunction.docx

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

C.

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

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: dmockbee@mhdlaw.com
aguidry@mhdlaw.com

\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Mot Preliminary Injunction.docx

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

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

\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Mot Preliminary Injunction.docx

Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MADISON COUNTY, MISSISSIPPI by and through
the MADISON COUNTY BOARD OF SUPERVISORS
V.

PLAINTIFF
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 Countys motion
for a preliminary injunction has nothing to do with the parties various money disputes. The
money disputes will be resolved another day. Madison Countys 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, Warnocks failure to deliver these engineering documents jeopardizes the public
\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Memo Preliminary Injunction.docx

Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 2 of 15

safety.
More specifically, Rudy Warnock is wrongfully withholding Madison Countys 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 Warnocks refusal to turn over
those State Aid engineering documents, which constitutes conversion of Madison Countys
property; prevents State Aids payments to contractors; jeopardizes Madison Countys ability to
begin new State Aid work, thereby jeopardizing the safety of those traveling Madison Countys
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 LLCs 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 LLCs 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 publics 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
\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Memo Preliminary Injunction.docx

Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 3 of 15

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 Countys obligations to
the several State agencies is for Rudy Warnocks and Warnock LLCs 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 Countys 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,
\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Memo Preliminary Injunction.docx

Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 4 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 Countys 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 Engineers 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.
\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Memo Preliminary Injunction.docx

Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 5 of 15

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 Countys State Aid County Engineer, had the following State Aid and LSBP
construction projects in progress:
a.

b.

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.

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

\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Memo Preliminary Injunction.docx

Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 6 of 15

inspection was done on October 2, 2012. State Aid is waiting on

Rudy Warnocks punch list certification and test reports per State
Aids 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 Aids 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 Aids 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 Aids 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.
\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Memo Preliminary Injunction.docx

Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 7 of 15

15.

Rudy Warnock has refused to cooperate with Madison County and Madison

Countys new State Aid County Engineer to provide the necessary documents in Rudy
Warnocks 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 Countys 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 Warnocks refusal to participate in the transition to Madison

Countys 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 Countys new State Aid County Engineer to complete LSBP-45(9) Dobson Avenue. A
copy of the State Aid Engineers 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 Warnocks intentional and willful refusal to cooperate with the current State

Aid Engineer and Madison Countys new State Aid County Engineer is directly delaying
\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Memo Preliminary Injunction.docx

Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 8 of 15

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 MDEQs 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 MDEQs 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
\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Memo Preliminary Injunction.docx

Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 9 of 15

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 Warnocks 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.
\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Memo Preliminary Injunction.docx

Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 10 of 15

2.

Madison County will suffer immediate and irreparable injury, loss or

damage if Rudy Warnock does not relinquish Madison Countys 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
Warnocks failure to perform leaves contractors unpaid; 2) Madison County cannot begin any
new State Aid projects until Rudy Warnocks State Aid projects in construction are completed;
3) Madison County cannot begin any new State Aid projects until Rudy Warnocks 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 Warnocks design engineering
documents are not delivered, will result in continued deterioration of roadway and bridge
\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Memo Preliminary Injunction.docx

10

Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 11 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 Warnocks production of the
required engineering documents that are mandatory per the State Aid Engineers 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 Countys 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 Warnocks 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 Warnocks delivery of the required documents will indisputably serve the publics
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.

\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Memo Preliminary Injunction.docx

11

Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 12 of 15

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 MDEQs 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
\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Memo Preliminary Injunction.docx

12

Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 13 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 Countys 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 LLCs 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 publics interest. Madison County cannot
ensure the safety of the Sulphur Springs park dam until Rudy Warnock delivers the required
close out documents for Madison Countys review and MDEQs 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 Countys taxpayer funds,
the public interest will be harmed if an injunction is not ordered.
\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Memo Preliminary Injunction.docx

13

Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 14 of 15

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, asbuilts, 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.

B.

C.

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

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

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

\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Memo Preliminary Injunction.docx

14

Case 3:16-cv-00240-DPJ-FKB Document 3 Filed 04/06/16 Page 15 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: dmockbee@mhdlaw.com
aguidry@mhdlaw.com
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

\\vfs1\netshare\docs\GUIDRYA\PLD\21581001 Memo Preliminary Injunction.docx

15