Dearman v. Stone County School District et al
Filing
55
ORDER denying Defendant's Motion 33 for Reconsideration of Memorandum Opinion and Order 30 . Signed by District Judge Halil S. Ozerden on 7/29/2014 (HM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
KRISTI DEARMAN
PLAINTIFF
v.
Civil No. 1:13-cv-267-HSO-RHW
STONE COUNTY SCHOOL DISTRICT, and
GWEN MILLER, individually
DEFENDANTS
ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION OF
MEMORANDUM OPINION AND ORDER
BEFORE THE COURT is the Motion [33] for Reconsideration of Memorandum
Opinion and Order, filed by Defendant Dr. Gwen Miller, in her individual and official
capacities. Plaintiff Kristi Dearman has filed a Response [34] and Dr. Miller a Reply
[35]. After consideration of the parties’ submissions, the record, and relevant legal
authorities, the Court finds that Dr. Miller’s Motion for Reconsideration should be
denied.
I. BACKGROUND
On March 21, 2014, the Court issued its Memorandum Opinion and Order [30]
Granting in Part and Denying in Part Dr. Gwen Miller’s Motion [23] to Dismiss All
Claims Against Defendant Gwen Miller. The Court did not dismiss the malicious
interference with employment claim advanced against Dr. Miller. Dr. Miller submits
that not dismissing this claim was error because Ms. Dearman did not file a notice of
claim pursuant to the Mississippi Torts Claims Act (“MTCA”), Mississippi Code §1146-1, et seq., prior to filing this suit. Dr. Miller asserts that reconsideration is
warranted in order to correct a clear error of law and prevent manifest injustice.
Def.’s Mot. [33] 1.
II. DISCUSSION
“Federal Rule of Civil Procedure 54(b) authorizes a district court to reconsider
and reverse rulings on an interlocutory order ‘for any reason it deems sufficient.’”
United States v. Renda, 709 F.3d 472, 479 (5th Cir. 2013)(citing Saqui v. Pride Ctr.
Am., LLC, 595 F.3d 206, 210-11 (5th Cir. 2010)). The Court’s decision to grant or
deny reconsideration is reviewed for abuse of discretion. Id. at 478-79. Dr. Miller is
seeking reconsideration under a standard applicable to motions to alter or amend
judgment under Federal Rule of Civil Procedure 59(e). For this reason, the Court will
review Dr. Miller’s Motion under the standard she proffers and determine whether
she has demonstrated a need to correct a clear error of law or prevent manifest
injustice. In re Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002).
Dr. Miller seeks dismissal of Ms. Dearman’s claim for malicious interference
with employment on the basis that Ms. Dearman did not file a MTCA notice of claim
prior to filing suit. As she did in response to Dr. Miller’s original Motion [23] to
Dismiss, Ms. Dearman relies on the Mississippi Supreme Court’s decision in Zumwalt
v. Jones Co. Bd. of Supervisors, 19 So. 3d 672 (Miss. 2009), maintaining that no
presuit notice of claim is required in order to pursue a claim for malicious interference
with employment. In Zumwalt, the Mississippi Supreme Court held that the MTCA
does not apply to a claim for “tortious interference with business relations and/or
contracts” because such a claim requires proof of malice, and claims requiring proof of
malice fall outside the scope of the MTCA. Id. at 688 (citing Miss Code Ann. § 11-465(2)).
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The Court relied on Zumwalt in denying Dr. Miller’s request to dismiss the
malicious interference with employment claim. The Court’s decision was also guided
by the fact that Dr. Miller did not address or rebut Ms. Dearman’s reliance on
Zumwalt. Def.’s Reply [29] 8. Dr. Miller, in effect, conceded in rebuttal that Zumwalt
controlled, focusing her briefing instead on the alleged substantive deficiencies of Ms.
Dearman’s claim for malicious interference with employment. Id.
The Court’s Order [30] noted, however, that the Fifth Circuit Court of Appeals
had recently questioned whether Zumwalt remains good law on this point. In
Johnson v. City of Shelby, Miss., the Fifth Circuit concluded that more recent
Mississippi Supreme Court precedent contradicted Zumwalt “on the question of
whether a plaintiff alleging malicious interference by a public employee must satisfy
the notice requirements of § 11-46-11 of the MTCA.” No. 12-60735, 743 F.3d 59, 6364 (5th Cir. 2013).1 The more recent Mississippi Supreme Court precedent relied on
by the Fifth Circuit in Johnson is Whiting v. University of Southern Mississippi, 62
So. 3d 907 (Miss. 2011).
In Whiting, the Mississippi Supreme Court found that claims for “tortious
breach of contract and tortious interference with contract” are subject to the MTCA,
such that exhaustion of administrative remedies is required prior to filing suit. Id. at
916. The Court in Whiting affirmed the lower court’s dismissal of a professor’s claim
1
As noted by Ms. Dearman, Johnson is an unpublished opinion, and the Fifth
Circuit has instructed that unpublished opinions are not precedent “except under the
doctrine of res judicata, collateral estoppel or law of the case (or similarly to show
double jeopardy, notice, sanctionable conduct, entitlement to attorney’s fees, or the
like).” 5th Cir. Rule 47.5.5.
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for tortious breach of contract asserted against a state university because the
professor had filed suit prior to a final decision by the Board of Trustees. Id. at 915.
Dr. Miller now seeks reconsideration on the basis of the Fifth Circuit’s decision
in Johnson, which was issued after Dr. Miller’s underlying Motion [23] to Dismiss
was briefed. Def.’s Mot. [33] 2. Dr. Miller’s counsel submits that she “did research
and attempt to locate precedent to contradict Zumwalt, but found no clear precedent
to cite to the court at that time.” Def.’s Mot. [33] 2. Dr. Miller maintains that “[t]here
were no Mississippi decisions which specifically negated the Zumwalt holding . . . .
until the case of Johnson v. City of Shelby, Mississippi was decided by the Fifth
Circuit on November 19, 2013.” Def.’s Mot. [33] 2-3.
Dr. Miller’s position overlooks the fact that Johnson was based on Whiting,
which was published by the Mississippi Supreme Court over two years before Dr.
Miller filed her Motion [23] to Dismiss. This weighs against a finding of manifest
injustice, one of the grounds for Dr. Miller’s Motion for Reconsideration. Dr. Miller
has also not demonstrated the need to correct a clear error of law, the other ground
for her Motion for Reconsideration. While Whiting and Zumwalt may appear
contradictory, the Mississippi Supreme Court in Whiting did not reference or
explicitly overrule Zumwalt. It is therefore unclear whether the Mississippi Supreme
Court intended for Whiting to overrule Zumwalt or whether the two cases are
somehow distinguishable. The apparent conflict between the two cases has led to
inconsistent decisions by federal district courts applying Mississippi law. Six of these
decisions were collected and referenced by the Fifth Circuit in Johnson, 743 F.3d at
64 n.4.
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The Mississippi Supreme Court, however, “is the final arbiter of its own state
law issues.” Pennell v. Wells Fargo Bank, N.A., 507 Fed. App’x 335, 338 (5th Cir.
2013)(citing Lucas v. United States, 807 F.2d 414, 418 (5th Cir. 1986)). The
Mississippi Supreme Court has not yet clarified whether Whiting overrules Zumwalt,
and for this reason, Dr. Miller cannot demonstrate a clear error of law. Dr. Miller’s
Motion [33] for Reconsideration of Memorandum Opinion and Order should be denied
at this time.
III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Motion [33]
for Reconsideration of Memorandum Opinion and Order, filed by Defendant Dr. Gwen
Miller, in her individual and official capacities, is DENIED.
SO ORDERED AND ADJUDGED, this the 29th day of July, 2014.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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