West et al v. City of Holly Springs, Mississippi et al

Filing 180

ORDER directing the parties to file amended pleadings. Signed by District Judge Michael P. Mills on 06/09/2019. (rmw)

UNITED STATES DISTRICT COURT
IN THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION

BOBBY WEST, COYA JACKSON, DIANECHIA
PATTERSON, MICHAEL PERKINS,
FILANDO MARION, JANET F. POWER,
AND DANIEL GREEN
VS.

PLAINTIFFS

CIVIL ACTION NO. 3:16CV79-MPM-RP

CITY OF HOLLY SPRINGS, MISSISSIPPI,
KELVIN O. BUCK, Mayor of the
City of Holly Springs, and J
OHN DOES 1-5

DEFENDANTS

ORDER
This cause comes before the court on its own motion, ordering the parties to file, prior to
trial, amended pleadings which fully set forth their claims and defenses in this case. In the
court’s view, the pleadings filed by both sides in this case include certain omissions which it
would be helpful to clarify prior to trial.
In his Third Amended complaint, plaintiff Cora Jackson asserted a malicious prosecution
claim against “defendants” in this case, which includes both Mayor Buck and the City of Holly
Springs. In its answer, the City failed to raise sovereign immunity as a defense to this claim, and
none of the parties appear to have taken note of this issue until shortly before trial, when this
court’s staff brought it to their attention. Representations from defense counsel make it clear that
the City does, in fact, assert sovereign immunity as a defense in this case, and, that being the
case, defendant should clearly assert it as an affirmative defense. See Estate of Grimes ex rel.
Grimes ex rel. Wrongful Death Beneficiaries v. Warrington, 982 So. 2d 365, 370 (Miss.
2008)(“This Court considers MTCA immunity as an affirmative defense.”)

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In granting the City an opportunity to amend its answer, this court is not attempting to
give defendant a “break” so much as to vindicate Mississippi law, as it was intended to operate.
In Univ. of Mississippi Med. Ctr. v. Oliver, 235 So. 3d 75, 83 (Miss. 2017), the Mississippi
Supreme Court recently made it clear that malicious prosecution actions may only be brought
against governmental employees individually and that their employers may not be held
vicariously liable for any such malicious prosecutions.
In so concluding, the Supreme Court wrote in Oliver that:
Under Section 11–46–5(2), torts in which malice is an essential element “are not within
the course and scope of employment.” Zumwalt, 19 So.3d at 688. “Thus, these intentional
torts are outside the scope of the MTCA's waiver of immunity, and the MTCA does not
apply.” Id. Rather, “any legal action against a governmental employee for these
intentional torts must necessarily proceed against him or her as an individual.” Id. Malice
is an essential element of malicious prosecution. Strong v. Nicholson, 580 So.2d 1288,
1293 (Miss. 1991). This means, to prove UMMC's officers committed malicious
prosecution, Oliver must prove the officers acted with malice. If he meets this burden,
then necessarily he has proven they were acting outside the course and scope of their
employment for purposes of the MTCA. See Miss. Code Ann. § 11–46–5(2) (Rev. 2012);
see also Miss. Code Ann. § 11–46–7(2) (Rev. 2012) (containing identical provision).
For UMMC, this means, as a matter of law, it cannot be liable, and sovereign immunity
cannot be considered to have been waived for the alleged malicious conduct of its
officers. So the circuit court erred by not granting UMMC summary judgment on this
basis. For McBeath and Stewart, this means Oliver's malicious-prosecution action
necessarily proceeds against them in their individual capacities. See Zumwalt, 19 So.3d at
688. Because the MTCA does not apply, Section 11–46–7(2) does not act as a shield
against individual liability. See Miss. Code Ann. § 11–46–7(2); see also Rogers v. City of
Tupelo, Miss., 2015 WL 3450266, at *12.
Oliver, 235 So. 3d at 82-83.
In light of this authority, plaintiff should have known that asserting a malicious
prosecution claim against the City was improper under Mississippi law. Under these
circumstances, this court sees no valid argument that plaintiff would be suffering any legal
prejudice by granting defendant leave to amend its answer. It certainly would have been
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preferable for defendant to have asserted this affirmative defense in its original answer, but it is
well settled that “delay without resulting prejudice to [the non-moving party] is not sufficient to
warrant denial of [a] motion [to amend a pleading].” Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, 6 Fed. Prac. & Proc. Civil § 1488 (3d ed. April 2016) (“In most cases, delay
alone is not a sufficient reason for denying leave.”).
In order for a court to determine if the threat of prejudice to the opposing party is
“undue,” courts should consider “the hardship to the moving party if leave to amend is denied,
the reasons for the moving party failing to include the material to be added in the original
pleading, and the injustice resulting to the party opposing the motion should it be granted.”
United States v. All Assets Held at Bank Julius, 229 F. Supp. 3d 62, 68 (D.D.C.). In considering
the “hardship” and “injustice” in this context, this court notes that, even if it were to deny
defendant leave to amend, then it would still presumably serve as the trier of fact in any MTCA
action against the City.1 Given the court’s view that plaintiff’s malicious prosecution claim
against the City is defective as a matter of substantive Mississippi law, then it would almost
certainly not permit plaintiff to obtain recovery against the City on that claim. In so stating, this
court notes that § 11–46–7(2)’s provision that malice-based claims are outside the course and
scope of employment establishes substantive Mississippi law, apart from any asserted affirmative
defense of immunity.
The City of Holly Springs acts through its Board of Aldermen, and there is no contention
that the Board ordered plaintiff to be prosecuted for disturbing the peace. Rather, it was Mayor
Buck who asked that plaintiff be prosecuted, and any recovery against the City for his actions in

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If this is somehow incorrect, then this court would still be required to address any motions for
judgment as a matter of law before the case was submitted to a jury.
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this regard would, presumably, depend upon the respondeat superior doctrine. However, § 11–
46–7(2) makes it clear that any malice-based decision by Mayor Buck in this context was outside
of the course and scope of his employment, as a matter of substantive Mississippi law. It
therefore seems clear that, even if this court were to deny the City leave to assert sovereign
immunity as an affirmative defense, then plaintiff’s malicious prosecution claim against the City
would still be meritless. This fact clearly supports a conclusion that plaintiff would not be
unduly prejudiced by the City being granted leave to amend its answer, and it will accordingly be
given an opportunity to do so.
By the same token, this court concludes that the “promotion pay” plaintiffs should be
granted an opportunity to amend their complaint to plainly assert the implied contract and
promissory estoppel theories upon which they rely in this case. While the promotion pay claims
set forth in the Third Amended Complaint are quite straight-forward and easy to understand, it is
also true that the complaint did not specifically assert “implied contract” and “promissory
estoppel” as theories of recovery. This court does not believe that defendant would suffer any
undue prejudice by plaintiffs being allowed to amend their complaint in this regard, since, once
again, the nature of the claims is quite straight-forward. This court is showing defendant a
certain degree of leniency in allowing it to amend its answer, and it believes that this is a context
in which sauce for the goose is sauce for the gander.
In light of the foregoing, it is ordered that plaintiffs and defendant should submit, prior to
trial, amended pleadings consistent with this order.
This, the 9th day of June, 2019.

/s/ Michael P. Mills
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI
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