UNITED STATES DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF ALABAMA 

Donna Dorsey Davis, ) 

as an individual and derivatively upon behalf ) 

of I-65 Properties, Inc. ) 

 ) 

 Plaintiff, ) 

 ) 

vs. ) CIVIL ACTION NO: 2:06cv766 

 ) 

Richard M. Dorsey, as an individual, ) 

and CD& O, LLC, as a necessary party, ) 

 ) 

 Defendant. ) 

 ) 

and ) 

 ) 

Richard M. Dorsey, ) 

Dorsey Motor Sales, Inc., ) 

and TD & O, Inc., ) 

 ) 

 Counter Plaintiffs, ) 

 ) 

vs. ) 

 ) 

Donna Dorsey Davis, ) 

 ) 

 Counter Defendant. ) 

Plaintiff/Counter-Defendant’s Reply to Defendants/Counter-Plaintiffs’ Motion to 

Strike Summary Judgment 

Comes now Plaintiff/Counter-Defendant, Donna Dorsey Davis, individually and 

derivatively, in the above-styled cause, and submit the following Reply to 

Defendants/Counter-Plaintiffs’ Motion to Strike Summary Judgment and in support 

thereof states as follows: 

Case 2:06-cv-00766-MHT-TFM Document 39 Filed 04/27/2007 Page 1 of 4
 

1. On August 25, 2006, the Plaintiff filed a Stock Holder Derivative Suit in 

which Defendant, Richard M. Dorsey is the majority stockholder, and the Plaintiff, his 

sister, Donna Dorsey Davis, is the minority stockholder. With the brother and sister 

being the only stockholders of I-65 Properties, Inc., it is considered a closely held 

corporation. 

2. On November 2, 2006, this Court entered a Scheduling Order setting the 

deadline for dispostive motions as ninety days prior to the pre-trial hearing, which is set 

for June 15, 2007. The dispostive motion deadline was therefore March 19, 2007. 

 2. On January 5, 2007, February 1, 2007, and February 7, 2007, Plaintiff’s 

counsel attempted to schedule depositions with counsel for Defendant to no avail. 

 3. On February 8, 2007, approximately one hundred forty-five days (145) 

beyond the twenty days prescribed by Rule 8 of the Fed. R. Civ. Proc., Defendant filed an 

answer to the Complaint which included a Counter-Claim against Plaintiff. 

 4. On February 28, 2007, Plaintiff noticed the deposition of the Defendant 

which occurred on March 12, 2007. 

 5. On March 19, 2007, Defendant filed his Motion for Summary Judgment. 

On April 9, 2007, Plaintiff filed her response thereto, and in the alternative, a Cross 

Motion for Summary Judgment. 

 6. On April 11, 2007, this Court entered an Order requiring the Defendants to 

file a response to Plaintiff’s Motion by April 11, 2007. 

 7. The Pretrial Conference is set for June 15, 2007, and the trial on the matter 

has been set for July 23, 2007. The Court denying the Defendant’s Motion to Strike the 

Case 2:06-cv-00766-MHT-TFM Document 39 Filed 04/27/2007 Page 2 of 4
Plaintiff’s Motion for Summary Judgment will in no way have an effect on the parties 

being prepared to move forward on the above Ordered dates. 

8. In light of the fact that the Defendant improperly filed an Answer and 

Counter-Claim on February 8, 2007, leaving the Plaintiff only a small amount of time in 

which to complete discovery and formulate a reply, the Plaintiff’s Motion for Summary 

Judgment on Defendants’ Counter-claims will not be prejudicial to any party by being 

filed out of time, but as reasonably filed contemporaneously in a response to Defendant’s 

Motion for Summary Judgment. 

9. This Court has properly given the Defendants the relief requested in the 

Motion to Strike by Ordering any and all responses to Plaintiff’s Motion for Summary 

Judgment on Defendants’ Counter-claims due on April 27, 2007. 

10. According to Fed. R. Civ. P. 12(f), the “court may order stricken from any 

pleading any insufficient defense or any redundant, immaterial, impertinent, or 

scandalous matter.” The essence of the Plaintiff’s Motion for Summary Judgment is 

based on the Defendant, Richard M. Dorsey, cross-claiming against his sister for a debt 

that is not associated with her individually and is barred from recovery. For there to be 

justice to prevail, not only is the substance of the Motion for Summary Judgment a 

sufficient defense, but is very material to this matter before the Court. 

 WHEREFORE, PREMISES CONSIDERED, and in the interest of justice, 

Plaintiff prays this honorable Court will Deny Defendants’ Motion to Strike, and 

furthermore, Grant her leave of Court to file her Motion for Summary Judgment out of 

time, and any further and different relief this Court may deem necessary and proper. 

Case 2:06-cv-00766-MHT-TFM Document 39 Filed 04/27/2007 Page 3 of 4
RESPECTFULLY SUBMITTED, 

 By: _s/Lindsay B. Erwin_______ 

 Lindsay B. Erwin (ERW005) 

 ASB-5299-y59e 

Meacham, Earley & Fowler, P.C. 

5704 Veterans Parkway 

Columbus, GA 31904 

(706) 576-4064 

 

CERTIFICATE OF SERVICE

 I hereby certify that on this 27th day of April, 2007, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system and have served a copy 

of same electronically and placing a copy of same in the Unites States Mail, postage 

prepaid and properly addressed to: 

Clifford W. Cleveland James E. Roberts 

Post Office Box 680689 4908 Cahaba River Road, Suite 204 

Prattville, Alabama 36068 Birmingham, Alabama 35243 

 __s/Lindsay B. Erwin______ 

 Of Counsel 

Case 2:06-cv-00766-MHT-TFM Document 39 Filed 04/27/2007 Page 4 of 4