IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60205

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

FILED

December 15, 2016

Lyle W. Cayce

Clerk

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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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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.

 

1 The 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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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 Montgomery2 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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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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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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