Pickett v. Panola County, Mississippi

Filing 65

ORDER granting 63 Motion for Reconsideration re 62 Order on Motion for Summary Judgment. Signed by District Judge Debra M. Brown on 2/9/15. (jtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
BRADLEY KEITH PICKETT

PLAINTIFF

V.

NO. 3:13-CV-00095-DMB-SAA

PANOLA COUNTY, MISSISSIPPI;
and CHRIS FRANKLIN

DEFENDANTS
ORDER

On January 30, 2015, this Court issued a Memorandum Opinion and Order granting in
part and denying in part the motion for summary judgment of Defendants Panola County and
Chris Franklin.

Doc. #62. In the order, the Court granted summary judgment in favor of

Franklin on Plaintiff’s claim for malicious interference with employment on the grounds that
Plaintiff failed to comply with the ninety-day notice requirement mandated by the Mississippi
Tort Claims Act (“MTCA”), Miss. Code Ann. § 11-46-1, et seq. Id. at 10–13.

In reaching this

conclusion, the Court noted that Plaintiff: (1) filed a notice of claim against Franklin on
September 10, 2013; and (2) added Franklin to this case on September 24, 2013, by filing his
first amended complaint. Id. at 11.
On February 3, 2015, Plaintiff filed a motion for reconsideration asking “that this Court
reconsider its opinion and dismiss Franklin … without prejudice.” Doc. #64 at 6 (emphasis
omitted). In seeking this relief, Plaintiff, citing to Price v. Clark, 21 So.3d 509, 521–22 (Miss.
2009), argues that the filing of the amended complaint on September 24, 2013, tolled the statute
of limitations, and justifies a dismissal without prejudice. Id. at 4–6. Counsel for Defendants
has notified the Court that Defendants do not oppose the requested relief.

In Price, the Mississippi Supreme Court held that “a properly served complaint – albeit a
complaint that is wanting of proper pre-suit notice – should … serve to toll the statute of
limitations until there is a ruling from the trial court.” 21 So.3d at 522. Thus, so long as the
premature complaint was filed within the applicable statute of limitations, a court must dismiss
the improperly noticed claims without prejudice. Id.
The MTCA provides, in relevant part, that “[a]ll actions brought under this chapter shall
be commenced within one (1) year next after the date of the tortious, wrongful or otherwise
actionable conduct on which the liability phase of the action is based.” Miss. Code Ann. § 1146-11(3)(a).

Here, Plaintiff’s MTCA notice alleges that Franklin caused an altercation in

January 2013, and that the altercation led to Plaintiff’s termination. Doc. #30-1. It is beyond
dispute that Plaintiff filed his amended complaint within one year of this allegedly wrongful
conduct.

Accordingly, the malicious interference claim against Franklin should have been

dismissed without prejudice rather than dismissed pursuant to summary judgment. See Rivera v.
PNS Stores, Inc., 647 F.3d 188, 195 (5th Cir. 2011) (summary judgment “is necessarily granted
with prejudice”).
It is, therefore, ORDERED that: (1) Plaintiff’s motion for reconsideration, Doc. #63, is
GRANTED; (2) Defendants’ motion for summary judgment on the malicious interference claim
against Franklin is DENIED; and (3) the malicious interference claim against Franklin is
DISMISSED without prejudice.

SO ORDERED, this 9th day of February, 2015.
/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE

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