Cleland v. Academy Sports and Outdoors et al
Filing
23
ORDER granting Defendant's 6 Motion to Dismiss; denying Plaintiff's 17 Motion for Leave to File a Second Amended Complaint. Plaintiff's claims against Academy Sports and Outdoors are dismissed with prejudice and a separate Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure shall be entered. Signed by District Judge Keith Starrett on August 26, 2013 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
EDDIE CLELAND
PLAINTIFF
V.
CIVIL ACTION NO. 2:13cv9-KS-MTP
ACADEMY SPORTS AND OUTDOORS
DEFENDANT
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss [6] of the Defendant
Academy Sports and Outdoors (“Academy”)1 and the Motion for Leave to File Second
Amended Complaint (“Motion for Leave”) [17] of the Plaintiff Eddie Cleland. Having
considered the submissions of the parties, the record and the applicable law, the Court
finds that the Motion to Dismiss [6] should be granted and that the Motion for Leave [17]
should be denied.
BACKGROUND
Academy hired Eddie Cleland as a manager in training in September of 2010 to
work at its Hattiesburg, Mississippi store. Cleland began working at this store as a
department manager in November of 2011. Louis Tenney was the store director and
Cleland’s immediate supervisor at this location. Cleland’s employment with Academy
was terminated on November 6, 2012.
On December 12, 2012, Cleland filed suit against Academy and Tenney in the
Circuit Court of Lamar County, Mississippi, asserting numerous state law claims relating
1
The Defendant asserts that it is incorrectly identified in the caption and that its
correct title is “Academy Ltd. d/b/a Academy Sports + Outdoors”. Any potential
misnomer in the case caption is not dispositive of any issue before the Court, and the
Defendant will be referred to as “Academy” for purposes of clarity and convenience.
to the termination of his employment. (See Compl. [1-2].) Cleland alleged that he was
treated unfairly and harassed by Tenney because of his political beliefs: Cleland is a
conservative Republican, whereas Tenney is a liberal Democrat. (See Compl. [1-2] at
¶¶ 8-9, 21.) Cleland further asserted, inter alia, that Tenney asked him to forge
information on ATF Form 4473, which must be completed for an individual to purchase
a firearm from Academy. (See Compl. [1-2] at ¶ 14.) Cleland complained to Tenney
and to upper management about Tenney’s alleged discriminatory, unethical and illegal
actions. (See Compl. [1-2] at ¶¶ 16-18.) Academy terminated Cleland for poor work
performance, which, according to Cleland, was a pretext for his refusal to participate in
criminal and unethical activity; his reporting of illegal and unethical activity to Academy
supervisors; and his political beliefs. (See Compl. [1-2] at ¶¶ 19-21.)
On January 14, 2013, Cleland filed an Amended Complaint [6-1] in the state
court asserting the following causes of action: defamation (against Academy and
Tenney); malicious interference with employment (against Tenney); intentional and
negligent infliction of emotional distress (against Academy and Tenney); discharge in
violation of public policy (against Academy); breach of contract/good faith and fair
dealing (against Academy); negligent retention/supervision (against Academy); and
negligence per se (against Academy).
On January 18, 2013, Academy and Tenney removed the proceeding to this
Court on the basis of diversity of citizenship jurisdiction under Title 28 U.S.C. § 1332.
(See Notice of Removal [1].) On February 6, 2013, Plaintiff moved for the remand of
this action to the Circuit Court of Lamar County. (See Mot. to Remand [8].) Plaintiff
argued that complete diversity of citizenship was lacking in light of his and Tenney’s
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Mississippi citizenship. On May 9, 2013, the Court entered its Opinion and Order
Denying Motion to Remand [16], finding that Tenney had been improperly joined and
dismissing him from the litigation without prejudice.
Currently pending are Academy’s Motion to Dismiss [6] and Cleland’s Motion for
Leave [17]. The Motion to Dismiss [6] was filed on February 5, 2013, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.2 Cleland’s Motion for Leave [17] was
filed on May 13, 2013, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure.
The Court has fully considered the parties’ submissions and is ready to rule.
DISCUSSION
I.
Academy’s Motion to Dismiss [6]
A.
Standard of Review
To withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L.
Ed. 2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.; see also In re Great Lakes Dredge & Dock Co.,
624 F.3d 201, 210 (5th Cir. 2010) (“To be plausible, the complaint’s ‘[f]actual allegations
must be enough to raise a right to relief above the speculative level.’”) (quoting
2
Resolution of the Motion to Dismiss [6] was stayed pending the Court’s ruling on
the remand issue. (See Order [12].) Although Academy and Tenney both filed this
motion, only Academy’s request for dismissal is live given Tenney’s dismissal on May 9,
2013. (See Order [16].)
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Twombly, 550 U.S. at 555). A complaint containing mere “labels and conclusions, or a
formulaic recitation of the elements” is insufficient. Bowlby v. City of Aberdeen, Miss.,
681 F.3d 215, 219 (5th Cir. 2012) (citation and internal quotation marks omitted).
Although courts are to accept all well-pleaded facts as true and view those facts in the
light most favorable to the nonmoving party, courts are not required “to accept as true a
legal conclusion couched as factual allegation.” Randall D. Wolcott, M.D., P.A. v.
Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (citation omitted). Ultimately, the court’s
task “is to determine whether the plaintiff has stated a legally cognizable claim that is
plausible, not to evaluate the plaintiff’s likelihood of success.” In re McCoy, 666 F.3d
924, 926 (5th Cir. 2012) (citing Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC,
594 F.3d 383, 387 (5th Cir. 2010)), cert. denied, 133 S. Ct. 192 (2012).
B.
Analysis
The Court now considers whether the claims asserted against Academy in the
Amended Complaint [6-1] measure up to the preceding standard. Cleland’s malicious
interference with employment allegation will not be considered since it was only
asserted against Tenney, who has been dismissed from this litigation. (See Order [16].)
1.
Defamation
Cleland asserts “that all pre-textual reasons put forward by Defendants for
terminating . . . [him] are knowingly and intentionally false”, and that his employment
“record and reputation have now been permanently defamed and harmed . . . .” (Am.
Compl. [6-1] at ¶ 23.) The following four elements must be proven in order for Cleland
to recover on his defamation claim:
(1) a false and defamatory statement concerning the plaintiff; (2) an
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unprivileged publication to a third party; (3) fault amounting at least to
negligence on the part of the publisher; and (4) either actionability of the
statement irrespective of special harm or the existence of special harm
caused by the publication.
Weible v. Univ. of S. Miss., 89 So. 3d 51, 65 (¶ 43) (Miss. Ct. App. 2011) (quoting
Simmons Law Group, P.A. v. Corp. Mgmt., Inc., 42 So. 3d 511, 517 (¶ 10) (Miss.
2010)), cert. denied, 94 So. 3d 290 (Miss. 2012).3 In the absence of bad faith or malice,
an employer enjoys a qualified privilege as to communications concerning the
termination of an employee made to any person having a legitimate and direct interest
in the matter. See Raiola v. Chevron U.S.A., Inc., 872 So. 2d 79, 85 (¶ 20) (Miss. Ct.
App. 2004) (citing Young v. Jackson, 572 So. 2d 378, 383 (Miss. 1990)).
Academy argues that Cleland has failed to plead requisite facts regarding “what
false and defamatory statements were made, if any, whether there was a publication to
a third party, and whether there was any negligence on behalf of the publisher.” (Def.’s
Mem. Brief in Supp. of Mot. to Dismiss [7] at p. 12.) Cleland’s Response to the Motion
to Dismiss [20] fails to address Academy’s argument. In fact, the only reference to
Cleland’s defamation claim in his response is the conclusory assertion that Academy’s
“defamatory reprimands” constitute tortious acts. (Pl.’s Resp. to Mot. to Dismiss [20] at
p. 13.) The Court finds Academy’s request for dismissal well taken based on this
record. The Amended Complaint [6-1] lacks sufficient factual content to permit “the
court to draw the reasonable inference that” Academy is liable to Cleland for the tort of
defamation. Ashcroft, 556 U.S. at 678.
3
The substantive law of Mississippi applies in this diversity action. See Specialty
Rental Tools & Supply, LP v. Shoemaker, 553 F.3d 415, 419 (5th Cir. 2008).
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2.
Intentional Infliction of Emotional Distress
An action for intentional infliction of emotional distress requires the defendant’s
“conduct to be so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community.” Raiola, 872 So. 2d at 85 (¶ 23). Liability will not attach for
mere insults, threats, indignities, petty oppression, annoyances, or other trivialities.
Jones v. Mullen, 100 So. 3d 490, 499 (¶ 40) (Miss. Ct. App. 2012) (citing Clark v. Luvel
Dairy Prods., Inc., 821 So. 2d 827, 831 (¶ 9) (Miss. Ct. App. 2001)). Furthermore,
employment disputes will not ordinarily support an emotional distress claim. Lee v.
Golden Triangle Planning & Dev. Dist., Inc., 797 So. 2d 845, 851 (¶ 24) (Miss. 2001)
(citations omitted). “Only in the most unusual cases does the conduct move out of the
‘realm of an ordinary employment dispute’ into the classification of ‘extreme and
outrageous,’ as required for the tort of intentional infliction of emotional distress.” Brown
v. Inter-City Fed. Bank for Savings, 738 So. 2d 262, 265 (¶ 9) (Miss. Ct. App. 1999)
(citing Prunty v. Ark. Freightways, Inc., 16 F.3d 649, 654 (5th Cir. 1994)).
Academy contends that Cleland has failed to allege facts sufficient to move this
controversy out of “the realm of an ordinary employment dispute”, stating a claim for
intentional infliction of emotional distress. (Def.’s Mem. Brief in Supp. of Mot. to Dismiss
[7] at p. 7.) Cleland’s Response to the Motion to Dismiss [20] does not address this
contention. Notwithstanding Cleland’s apparent concession of this request for
dismissal, the Court finds that the Amended Complaint’s intentional infliction of
emotional distress claim relies too much on “labels and conclusions,” and too little on
“well-pleaded facts”. Bowlby, 681 F.3d at 219. Accordingly, this claim is due to be
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dismissed.
3.
Negligent Infliction of Emotional Distress, Negligent
Retention/Supervision, and Negligence Per Se
Academy asserts that all of Cleland’s negligence-based claims are barred by the
exclusivity provision of the Mississippi Workers’ Compensation Act (the “Act”). See
Miss. Code Ann. § 71-3-9. The Mississippi Supreme Court has long held that the Act’s
exclusivity provision covers claims made by an injured employee against his employer
or any co-employee causing injury. See, e.g., Christian v. McDonald, 907 So. 2d 286,
290 (¶ 20) (Miss. 2005); Sawyer v. Head, 510 So. 2d 472, 476-77 (Miss. 1987); Brown
v. Estess, 374 So. 2d 241, 242 (Miss. 1979). Moreover, negligence allegations like
those raised by Cleland in this lawsuit have consistently been found to fall within the
scope of the Act. See, e.g., Ford v. Madison HMA, Inc., 867 F. Supp. 2d 843, 849 (S.D.
Miss. 2012) (finding claims of negligent infliction of emotional distress and negligent
supervision, retention and hiring to be barred under the Act); Bailey v. Cooper Lighting,
Inc., No. 5:07cv196, 2008 WL 1868568, at *5 (S.D. Miss. Apr. 24, 2008) (same);
Seiferth v. Camus, No. 4:03cv463, 2009 WL 3163327, at *1 (N.D. Miss. Sept. 29, 2009)
(same as to negligence and negligence per se claims), aff’d, 377 Fed. Appx. 417 (5th
Cir. 2010). Cleland fails to present any contrary precedent or persuasive argument as
to why the Act’s exclusivity provision does not govern here. Therefore, his negligencebased causes of action are also due to be dismissed.
4.
Discharge in Violation of Public Policy
Cleland alleges that he was discharged by Academy in violation of public policy
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because: (a) he reported illegal and unethical conduct and (b) he is a Republican. (See
Am. Compl. [6-1] at ¶ 32.) It is undisputed that Cleland was an at-will employee of
Academy with no express contract of employment. Mississippi adheres to the
employment-at-will doctrine. See Senseney v. Miss. Power Co., 914 So. 2d 1225, 1228
(¶ 8) (Miss. Ct. App. 2005) (citing Kelly v. Miss. Valley Gas Co., 397 So. 2d 874, 874
(Miss. 1981)). Where there is no written employment agreement (or where an
agreement does not specify the length of employment), the employment relationship is
terminable at the will of either party. Perry v. Sears, Roebuck & Co., 508 So. 2d 1086,
1088 (Miss. 1987). This “means that an employer may terminate an employee at any
time for a good reason, a wrong reason, or no reason at all.” Senseney, 914 So. 2d at
1228 (¶ 8).
There are two exceptions to the employment-at-will doctrine recognized under
Mississippi law. See McArn v. Allied Bruce-Terminix Co., 626 So. 2d 603 (Miss. 1993);
Bobbitt v. Orchard, Ltd., 603 So. 2d 356 (Miss. 1992). In opposing Academy’s request
for dismissal of this claim, Cleland relies on the public policy exception identified in
McArn, and requests that the Court recognize a new public policy exception when an
employee is discriminated against because of his political affiliation. (See Pl.’s Resp. to
Mot. to Dismiss [20] at pp. 6-11.) Cleland’s breach of contract/good faith and fair
dealing allegation, addressed in the next section of this opinion, is principally based on
the case of Bobbitt.
a. Whether the Amended Complaint States a Claim for Wrongful Discharge
Under McArn v. Allied Bruce-Terminix Co.
In McArn, the Mississippi Supreme Court recognized “a narrow public policy
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exception to the” doctrine of employment-at-will in two circumstances:
(1) an employee who refuses to participate in an illegal act . . . shall not be
barred by the common law rule of employment at will from bringing an action
in tort for damages against his employer; (2) an employee who is discharged
for reporting illegal acts of his employer to the employer or anyone else is not
barred by the employment at will doctrine from bringing action in tort for
damages against his employer.
626 So. 2d at 607. An employee’s subjective good faith belief that conduct is illegal is
insufficient in either instance. See Wheeler v. BL Dev. Corp., 415 F.3d 399, 403 (5th
Cir. 2005). The alleged conduct must actually constitute “criminally illegal activity”. Id.
at 404. Although McArn does not require that a crime already have been committed, it
does require that the activities “complained of warrant the imposition of criminal
penalties, as opposed to mere civil penalties.” Hammons v. Fleetwood Homes of Miss.,
Inc., 907 So. 2d 357, 360 (¶ 11) (Miss. Ct. App. 2004) (citations omitted); see also
Howell v. Operations Mgmt. Int’l, Inc., 161 F. Supp. 2d 713, 719 (N.D. Miss. 2001)
(refusing to expand McArn to encompass acts giving rise to civil penalties under OSHA
regulations), aff’d, 77 Fed. Appx. 248 (5th Cir. 2003). The criminality of the conduct
must be demonstrated via “‘substantial evidence or citation to binding statutory and/or
case law.’” Vaughn v. Carlock Nissan of Tupelo, Inc., No. 1:09cv293, 2011 WL
3651271, at *4 (N.D. Miss. Aug. 18, 2011) (quoting Kyle v. Circus Circus Miss., Inc., 430
Fed. Appx. 247, 252 (5th Cir. 2011)).
Cleland argues that he is protected under both prongs of McArn because he
refused to forge information on ATF Form 4473, and because he reported the criminal
act to his employer. (See Pl.’s Resp. to Mot. to Dismiss [20] at ¶ 19.) Cleland further
argues that Tenney violated section 97-1-1 of the Mississippi Code (conspiracy) and
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section 97-1-7 of the Mississippi Code (attempt to commit a crime) when he requested
that Cleland commit the crime of “forgery.” (Pl.’s Resp. to Mot. to Dismiss [20] at ¶ 20.)
Mississippi Code sections 97-1-1 and 97-1-7 are not determinative of the McArn issue
before the Court since their operation is dependent upon an underlying criminal act.
Thus, Cleland’s McArn claim will stand or fall on the adequacy of his “forgery”
allegation.
The Mississippi Code criminalizes forgery in numerous contexts. See, e.g., Miss.
Code Ann. §§ 97-21-1 (false entries or alterations in public account books), -3 (false
entries or alterations in corporate account books), -29 (fraud upon person with same
name), -35 (pleadings, process, orders or licenses), -51 (unauthorized use of name in
communication), -59 (uttering counterfeit instruments). Curiously, neither the Amended
Complaint [6-1] nor Cleland’s Response to the Motion to Dismiss [20] cites any of these
provisions. The Court’s review of the preceding statutes and Mississippi case law leads
to the conclusion that “fraudulent intent” or, stated differently, “intent to defraud” is an
essential element of the crime of forgery. See, e.g., Nelson v. State, 32 So. 3d 534, 537
(¶ 6) (Miss. Ct. App. 2009); Tel. Man, Inc. v. Hinds County, 791 So. 2d 208, 210 (¶ 11)
(Miss. 2001); Rowland v. State, 531 So. 2d 627, 630 (Miss. 1988); Smith v. State, 220
Miss. 67, 70 So. 2d 56, 57 (Miss. 1954).
The Amended Complaint is woefully lacking of any facts leading to the
reasonable inference that Tenney intended to defraud anyone (i.e., that he intended to
cause injury or loss by trickery or deceit)4 when he purportedly “asked Cleland to forge
4
See United States v. Edmonson, 175 F. Supp. 2d 889, 893 (S.D. Miss. 2001) (“The
term ‘defraud’ is defined as the taking or withholding of ‘some possession, right, or
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information on ATF Form 4473 . . . .” (Am. Compl. [6-1] at ¶ 14.) Tenney’s motivation,
good or bad, in making this request of Cleland is left to the reader’s imagination.
Cleland’s opposition to dismissal sheds light on this issue, but that light furthers
Academy’s request for dismissal. Cleland explains his forgery allegation as follows:
Ordinarily, where a mistake or error is made on a 4473 [Form], Academy is
required to contact the customer to come back in and correct the error. From
time to time, the “error” stack would become so high that substantial work
was required to have the errors corrected by customers. In lieu of contacting
the numerous customers, Tenney requested that Cleland simply correct the
errors himself and to forge the customers’ information.
(Pl.’s Resp. to Mot. to Dismiss [20] at ¶ 7.)
It is implausible that Tenney intended to injure anyone by trickery or deceit in
requesting that Cleland correct customer errors on ATF Forms. Instead, it appears that
Tenney’s aim was to clear a backlog of paperwork in a short period of time by not
requiring customers to return to the store to make the subject corrections. Overlooking
the wisdom vel non of this activity, the allegations of the Amended Complaint fall short
of evincing any criminal “forgery” under Mississippi law. Therefore, Cleland’s reliance
on McArn in support of his wrongful discharge claim is not well taken.
b. Whether the Amended Complaint States a Claim for Wrongful Discharge
Based on Interference with Cleland’s Political Rights
Cleland relies on the following Mississippi authorities in requesting that the Court
declare a public policy exception based on Academy’s alleged interference with his
interest by calculated misstatement or perversion of truth, trickery, or other deception.’”)
(quoting Webster’s Third New International Dictionary 593 (1986)), aff’d, 57 Fed. Appx.
212 (5th Cir. 2003); Black’s Law Dictionary 434 (7th ed. 1999) (defining “defraud” as the
act of causing “injury or loss to (a person) by deceit”).
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political rights: (1) article 7, section 191 of the Mississippi Constitution;5 (2) section 791-9 of the Mississippi Code;6 and (3) section 23-15-871 of the Mississippi Code.7 Article
5
“The legislature shall provide for the protection of the employees of all corporations
doing business in this state from interference with their social, civil, or political rights by
said corporations, their agents or employees.” Miss. Const. art. 7, § 191.
6
“Any corporation doing business in this state shall be liable to a penalty of two
hundred fifty dollars ($250.00) for every unlawful interference with the social, civil, or
political rights of any of its agents or employees, and the same may be recovered by
suit, to be brought by the injured party.” Miss. Code Ann. § 79-1-9.
7
“It shall be unlawful for any corporation or any officer or employee thereof, or any
member of a firm, or trustee or any member of any association, or any other employer,
to direct or coerce, directly or indirectly, any employee to vote or not to vote for any
particular person or group of persons in any election, or to discharge or to threaten to
discharge any such employee, or to increase or decrease the salary or wages of an
employee, or otherwise promote or demote him, because of his vote or failure to vote
for any particular candidate or group of candidates; and likewise it shall be unlawful for
any employer, or employee having the authority to employ or discharge other
employees, to make any statement public or private, or to give out or circulate any
report or statement, calculated to intimidate or coerce or otherwise influence any
employee as to his vote, and when any such statement has obtained circulation, it shall
be the duty of such employer to publicly repudiate it, in the absence of which
repudiation the employer shall be deemed by way of ratification to have made it himself.
Nor shall any employee be requested, directed or permitted to canvass for or against
any candidate or render any other services for or against any candidate or group of
candidates, during any of the hours within which the salary of said employee as an
employee is being paid or agreed to be paid; nor shall any such employee be allowed
any vacation or leave of absence at the expense of the employer to render any service
or services for or against any candidate or group of candidates, or to take any active
part in any election campaign whatsoever; nor shall any employee at the expense, in
whole or in part, of any employer take any part whatever in any election campaign,
except the necessary time to cast his vote. The prohibitions of this section shall apply to
all state, state district, county and county district officers, and to any board or
commission and the members thereof by whatever name designated and whether
elective or appointive, and to each and every one of those employed by them or any of
them. And no state, state district, county or county district officer, or any employee of
any of them who directly or indirectly has the control, or in any way the power of control,
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7, section 191 is not self-executing and fails to support a cause of action for wrongful
termination under Mississippi law. See Cooper v. Drexel Chem. Co., 949 F. Supp.
1275, 1282 (N.D. Miss. 1996). Section 79-1-9 clearly authorizes a private right of action
by an aggrieved employee for $250.00. However, the Fifth Circuit has rejected the
argument “that this section should be construed as a general wrongful discharge
statute, essentially supplanting Mississippi’s employment at will doctrine.” Bradley v.
Lockheed Martin Corp., 275 Fed. Appx. 396, 398 (5th Cir. 2008); see also Price v.
Lockheed Martin Corp., 261 Fed. Appx. 761, 764 (5th Cir. 2008) (affirming the district
court’s ruling that an at-will employee lacked any social, civil or political rights subject to
violation through the termination of her employment).8 It is unclear whether section 2315-871 applies outside the realm of public employment. Employees of Mississippi
counties are the subject of the two (2) cases identified by this Court referencing this
or who asserts or pretends that he has such power, over the expenditure of any public
funds in this state, whatever the purpose or object of said expenditure may be, shall
state, suggest or intimate, publicly or privately, or in any manner or form, that any such
expenditure shall in any wise depend upon or be influenced by the vote of any person,
group of persons, or community or group of communities, whether for or against any
candidate or group of candidates at any election. This section and every part of it shall
apply also to all federal officers, agents, employees, boards and commissions by
whatever name known and to each and every one of those employed by them or any of
them, as to any interference by them or any of them, contrary to the provisions of this
chapter, in the elections of this state.” Miss. Code Ann. § 23-15-871 (emphasis added).
8
Although Bradley and Price are unpublished, they are still persuasive. See Am.
Family Life Assurance Co. v. Biles, 714 F.3d 887, 893 (5th Cir. 2013) (citing an
“unpublished but persuasive” Fifth Circuit opinion).
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statute.9 In any event, no authority has been identified recognizing an at-will
employee’s claim for wrongful termination based on a violation of section 23-15-871.
It is this Court’s task to apply Mississippi law, not to make it. Consequently, the
Court declines Cleland’s request for it to act effectively as the Mississippi Legislature or
Mississippi Supreme Court and establish a new public policy exception to Mississippi’s
longstanding employment-at-will doctrine based on interference with political rights.10
There is also no procedural mechanism available for the Court to grant Cleland’s
alternative request to certify this issue to the Mississippi Supreme Court.11 Ultimately,
the Amended Complaint fails to state a cognizable claim for wrongful discharge under
current Mississippi law.
9
See Beattie v. Madison County Sch. Dist., 254 F.3d 595 (5th Cir. 2001); Straughter
v. Collins, 819 So. 2d 1244 (Miss. 2002). Mississippi Attorney General Opinions
discussing this statute also concern governmental employees. See Miss. A.G. Op. No.
2003-0336 (July 18, 2003), 2003 WL 21962298; Miss. A.G. Op. No. 2000-0042 (Feb.
11, 2000), 2000 WL 300226; Miss. A.G. Op. No. 98-0114 (Mar. 6, 1998), 1998 WL
156071.
10
Cf. Wheeler, 415 F.3d at 404 (“To assist Appellants in broadening the scope of
what the Mississippi Supreme Court and this Court have continually recognized as a
‘narrow public policy exception,’ . . . would serve to envelope a much wider class of
activities-a broadening that is at odds with the intent of the Mississippi Supreme Court
when it first created the [McArn] exception.”); Medina v. Mims Oil Co., No. Civ.A.
4:04cv236, 2005 WL 1629800, at *1 (N.D. Miss. July 11, 2005) (rejecting the plaintiff’s
request for a new public policy exception in support of her wrongful termination claim
since the authority to make new law rested solely with the Mississippi Legislature); Cook
v. Wallot, No. 2011-CA-01056-COA, 2013 WL 1883533, at *6 (¶¶ 29-30) (Miss. Ct. App.
May 7, 2013) (refusing to extend McArn to a former organization member’s claim for
unlawful retaliation/whistle-blowing, and noting that such an extension would have to be
made by the Mississippi Supreme Court).
11
Mississippi Rule of Appellate Procedure 20 only authorizes the Mississippi
Supreme Court to answer certified questions from the United States Supreme Court or
any United States Court of Appeals. See Miss. R. App. P. 20(a).
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5.
Breach of Contract/Good Faith and Fair Dealing
Mississippi’s employment-at-will doctrine generally precludes employee suits for
breach of contract or breach of the implied covenant of good faith and fair dealing. See
Cooper, 949 F. Supp. at 1282; Young v. N. Miss. Med. Ctr., 783 So. 2d 661, 663 (¶ 9)
(Miss. 2001). In Bobbitt, however, the Mississippi Supreme Court held that when an
employer furnishes its employees a detailed manual setting forth its rules of
employment and the procedures to be followed in the event that an employee violates
its rules, the manual creates a contractual obligation on the part of the employer to
follow its provisions in disciplining an employee for rules infractions specifically covered
by the manual. 603 So. 2d at 361. Cleland’s Amended Complaint appears to rely on
Bobbitt via the allegation that “Academy was required to follow certain policies and
procedures in handling the matters complained of by Cleland and in terminating
Cleland’s employment.” (Am. Comp. [6-1] at ¶ 34.)
The Court finds that Cleland’s allegations are insufficient “to raise a right to relief
above the speculative level.” In re Great Lakes Dredge & Dock Co., 624 F.3d at 210.
Absent from the Amended Complaint is any description of “a detailed manual” furnished
to Academy employees, setting forth procedures to “be followed in event of infraction of
. . . [Academy’s] rules of employment . . . .” Bobbitt, 603 So. 2d at 361. Much less does
Cleland specify how Academy failed to follow such procedures “in reprimanding,
suspending or discharging” him. Id.
Cleland’s opposition to dismissal is somewhat more descriptive of his claim under
Bobbitt. Cleland asserts that Academy was obligated to follow the provisions of its
employee handbook in reprimanding and disciplining him, and that “Defendant wholly
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failed to do so.” (Pl.’s Resp. to Mot. to Dismiss [20] at ¶ 35.) Cleland explains that he is
not in possession of the employee handbook, but asserts on information and belief that
“Defendant failed to follow the same guidelines which Defendant alleged Cleland failed
to follow.” (Pl.’s Resp. to Mot. to Dismiss [20] at ¶ 37.) Plausible facts giving rise to
Cleland’s belief that he and his employer were required to follow the same guidelines
are unstated. Even if these conclusory and speculative contentions were contained in
the Amended Complaint, the pleading would fail to survive Rule 12(b)(6) scrutiny. See
Mann v. Palmer, 713 F.3d 1306, 1315 (11th Cir. 2013) (declining to accept as true, for
purposes of Rule 12(b)(6), an allegation stated “upon information and belief” in the
absence of sufficient facts lending plausibility to the allegation), cert. denied, 133 S. Ct.
1752 (2013); In re Great Lakes Dredge & Dock Co., 624 F.3d at 210 (“We do not accept
as true conclusory allegations, unwarranted factual inferences, or legal conclusions.”).12
Cleland’s reliance on the case of University of Southern Mississippi v. Williams,
891 So. 2d 160 (Miss. 2004), in support of his allegation that Academy breached a duty
of good faith and fair dealing is misplaced. (See Am. Compl. [6-1] at ¶ 35.) In Williams,
a doctoral candidate brought suit alleging that the University breached an implicit and
explicit contract whereby she paid the University a significant monetary sum in
12
The Court also finds the Amended Complaint devoid of facts sufficient “‘to raise a
reasonable expectation that discovery will reveal evidence of’” Academy’s violation of
policies and procedures giving rise to a Bobbitt claim. In re S. Scrap Material Co., 541
F.3d 584, 587 (5th Cir. 2008) (quoting Twombly, 550 U.S. at 556). “Rule 8 marks a
notable and generous departure from the hyper-technical, code-pleading regime of a
prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing
more than conclusions.” Ashcroft, 556 U.S. at 678-79. Moreover, it is untenable that
“Cleland relied upon the employee handbook and expected” Academy to follow it when
he needs discovery to “cite exactly what portions of the handbook Defendant failed to
follow.” (Pl.’s Resp. to Mot. to Dismiss [20] at ¶¶ 42, 43.)
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exchange for the opportunity to pursue her academic endeavors free from harassment.
891 So. 2d at 169 (¶ 18). In reviewing the plaintiff’s claim, the court noted “that the
student/university relationship is contractual in nature . . . .” Id. at (¶ 21). The court
then found sufficient evidence for the jury to conclude that the University and its
employees breached the duty of good faith and fair dealing in their dealings with the
plaintiff. Id. at 171 (¶ 25). The evidence showed that “USM and its employees
knowingly conducted themselves in ways which violated standards of decency, fairness,
and reasonableness.” Id. at (¶ 26). For example, the plaintiff claimed that one of her
professors impeded her progress through the doctoral program because she refused to
engage in sexual relations with him. Id. at (¶ 28). The court specifically noted that its
holding was “very fact specific” and “narrowly written”. Id. at 167 (¶ 13).
Williams’ narrow holding regarding a breach of the duty of good faith and fair
dealing in the context of a student/university relationship has no application in this
employment dispute. Although numerous Mississippi cases “state that all contracts
contain an implied duty of good faith and fair dealing, [the Supreme Court] has never
recognized a cause of action based on such a duty arising from an employment at-will
relationship.” Miranda v. Wesley Health Sys., LLC, 949 So. 2d 63, 68 (¶ 19) (Miss. Ct.
App. 2006) (citation omitted), cert. denied, 949 So. 2d 37 (Miss. 2007). To view the
validity of the termination of an at-will employment relationship through a good faith lens
would essentially nullify the principle that an at-will employee may be fired for a good
reason, a bad reason or no reason at all. Id. Cleland’s breach of good faith allegation
fails in light of the undisputed at-will nature of his prior employment with Academy. “It is
well established under Mississippi law that an at-will employee is precluded from
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bringing such a cause of action.” Crawford v. Bannum Place of Tupelo, No. 3:10cv54,
2013 WL 104963, at *7 (N.D. Miss. Jan. 8, 2013) (citing Hartle v. Packard Elec., 626 So.
2d 106, 110 (Miss. 1993); Porter v. Tunica Co., 2012 WL 113741, at *6 (N.D. Miss. Jan.
13, 2012)); see also Young, 783 So. 2d at 663 (¶ 9).
For the foregoing reasons, Academy’s request for dismissal of all of the claims
asserted against it in the Amended Complaint will be granted.
II.
Cleland’s Motion for Leave [17]
Cleland seeks leave to file a Second Amended Complaint [17-1] “to add factual
support for the pretextual reprimands made by Tenney to cause Academy to terminate
Cleland.” (Pl.’s Mot. for Leave [17] at ¶ 3.) Cleland’s proposed Second Amended
Complaint [17-1] contains the same causes of action as the Amended Complaint [6-1],
and again names Tenney as a Defendant. Academy opposes the motion because of
Tenney’s prior dismissal and because the proposed amended pleading encompasses
the same issues complained of in the Motion to Dismiss [6].
Leave to amend should be freely given “when justice so requires.” Fed. R. Civ.
P. 15(a)(2). Moreover, a court should ordinarily provide a claimant an opportunity to
amend his complaint prior to granting a motion to dismiss with prejudice under Rule
12(b)(6). See Hart v. Bayer Corp., 199 F.3d 239, 248 n.6 (5th Cir. 2000) (citations
omitted). Yet, the district “court acts within its discretion in denying leave to amend
where the proposed amendment would be futile because it could not survive a motion to
dismiss.” Rio Grande Royalty Co. v. Energy Transfer Partners, L.P., 620 F.3d 465, 468
(5th Cir. 2010) (citing Briggs v. Mississippi, 331 F.3d 499, 508 (5th Cir. 2003)).
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The Court determines that allowing Cleland to file his proposed Second
Amended Complaint [17-1] would be an exercise in futility as to Academy. Cleland’s
proposed amended pleading contains no new causes of action. Furthermore, all of the
additional fact allegations are geared toward shoring up Cleland’s malicious interference
claim, which is only asserted against Tenney. Thus, the above findings on Academy’s
request for dismissal of the Amended Complaint [6-1] apply equally to Cleland’s
proposed Second Amended Complaint [17-1]. Cleland had adequate time to prepare
an amended pleading meeting the deficiencies identified by Academy in its dismissal
motion given the period of approximately three months between the filing of the Motion
to Dismiss [6] and the Motion for Leave [17]. His failure to do so leads the Court to
conclude that justice does not compel a grant of his request for leave to amend. See
Duzich v. Advantage Fin. Corp., 395 F.3d 527, 529, 531 (5th Cir. 2004) (affirming the
district court’s grant of a motion to dismiss with prejudice and denial of a motion for
leave to file an amended complaint where any amendment would have been futile);
United States v. Regents of the Univ. of Cal., 363 F.3d 398, 404 (5th Cir. 2004) (finding
no abuse of discretion in the lower court’s ruling that “[o]ne opportunity to amend, in the
face of motions that spelled out the asserted defects in the original pleadings, was
sufficient under the circumstances”).
As to Tenney, Cleland has failed to identify and brief the appropriate standard for
leave to amend. Cleland and Tenney are both citizens of Mississippi. (See Notice of
Removal [1] at ¶ 13; Am. Compl. [6-1] at ¶¶ 1, 3.) Bringing Tenney back into the lawsuit
would thus result in incomplete diversity of citizenship between the parties and deprive
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the Court of jurisdiction under 28 U.S.C. § 1332. Title 28 U.S.C. § 1447(e),13 as
opposed to Rule 15, governs a district court’s consideration of a request for joinder of a
non-diverse defendant. See White v. City Fin. Co., 277 F. Supp. 2d 646, 650 n.7 (S.D.
Miss. 2003). “The district court must scrutinize an amendment [to a pleading] that
would add a non-diverse party more closely than an ordinary amendment.” Priester v.
JP Morgan Chase Bank, N.A., 708 F.3d 667, 679 (5th Cir. 2013) (citation and internal
quotation marks omitted). The Fifth Circuit has identified the following considerations to
guide a district court’s scrutiny of an amendment that would join non-diverse parties:
“[1] the extent to which the purpose of the amendment is to defeat federal jurisdiction,
[2] whether plaintiff has been dilatory in asking for amendment, [3] whether plaintiff will
be significantly injured if amendment is not allowed, and [4] any other factors bearing on
the equities.” Id. The Motion for Leave [17] addresses none of these factors.
Ordinarily, the Court would defer ruling on the joinder of a non-diverse defendant
pending briefing from the parties addressing the above-listed factors. However, this
case presents the unusual circumstance of a plaintiff attempting to add a non-diverse
defendant that was previously dismissed without prejudice to a suit where the plaintiff
cannot state a claim against the existing defendant. (See Order [16].) If the Court were
to grant the Motion for Leave [17], it would have to remand Cleland’s suit against
Tenney due to an absence of subject matter jurisdiction. See 28 U.S.C. § 1447(e). If
the Court were to deny the motion, the prior dismissal of Tenney without prejudice
13
“If after removal the plaintiff seeks to join additional defendants whose joinder
would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder
and remand the action to the State court.” 28 U.S.C. § 1447(e).
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would remain in place and Cleland could obtain the effective result of a remand by
refiling his claims against Tenney in state court. The Court finds the denial of Tenney’s
request for leave to amend without further delay to be the soundest and most
expeditious method of resolving this issue under this unique set of circumstances.
Accordingly, the Motion for Leave [17] will be denied.
CONCLUSION
IT IS THEREFORE ORDERED AND ADJUDGED:
1.
That Academy’s Motion to Dismiss [6] is granted and Plaintiff’s claims
against Academy are dismissed with prejudice.
2.
That Plaintiff’s Motion for Leave [17] is denied.
3.
A separate judgment will be entered in accordance with Rule 58 of the
Federal Rules of Civil Procedure.
SO ORDERED AND ADJUDGED this the 26th day of August, 2013.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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