Durham v. Ankura Consulting Group, LLC et al

Filing 26

MEMORANDUM OPINION AND ORDER granting in part and denying in part 15 Motion to Dismiss. The Court grants the motion to dismiss as to Plaintiff's negligence claims, but denies it in all other respects. Signed by District Judge Keith Starrett on 1/11/21. (cb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
WILLIAM H. DURHAM

PLAINTIFF

v.

CIVIL ACTION NO. 2:20-CV-112-KS-MTP

ANKURA CONSULTING GROUP, LLC

DEFENDANT

MEMORANDUM OPINION AND ORDER
For the reasons provided below, the Court grants in part and denies in part
Defendant’s Motion to Dismiss [15]. The Court grants the motion as to Plaintiff’s
claims of negligence and gross negligence, but the Court denies it in all other respects.
I. BACKGROUND
Plaintiff is a doctor who provides services to attorneys and law firms involved
in asbestos litigation. Specifically, he reads chest x-rays of people allegedly exposed
to asbestos in support of claims submitted to settlement trusts. Plaintiff alleges that
the settlement trust administrators noticed the high volume of x-rays he reviewed
and hired Defendant to conduct an audit of his readings. He contends that Defendant
intentionally designed the audit so that he would fail it, by “cherry-picking” x-rays
with low opacity, which indicates fewer asbestos particles. According to Plaintiff,
Defendant wanted him to fail the audit because that would allow the trust
administrators to deny more claims.
After Plaintiff failed the audit, the trust administrators declined to accept any
more reports from him, and they sent a letter stating as much to several law firms in

Mississippi that had retained Plaintiff’s services. The trusts also refused to pay on
certain claims. As a result, Plaintiff’s clients did not pay for his services on certain
claims, and they have not hired him again.
Plaintiff filed this lawsuit against Defendant, asserting claims of negligence
and tortious interference with contract. He demands past losses of $2,215,630.00,
future losses of $12,000,000.00, and punitive damges. Defendant filed a Motion to
Dismiss [15], which the Court now addresses.
II. DISCUSSION
A.

Personal Jurisdiction
First, Defendant argues that the Court does not have personal jurisdiction over

it in this case. “A federal court siting in diversity may exercise personal jurisdiction
only to the extent permitted [in] a state court under state law.” Paz v. Brush
Engineered Materials, Inc., 445 F.3d 809, 812 (5th Cir. 2006) (citations omitted). “The
court may only exercise jurisdiction if: (1) the state’s long-arm statute applies, as
interpreted by the state’s courts, and (2) if due process is satisfied under the 14th
Amendment to the federal Constitution.” Id.
“When a nonresident defendant moves to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of establishing the district court’s
jurisdiction over the nonresident . . . . A plaintiff satisfies this burden by presenting
a prima facie case for personal jurisdiction.” Unified Brands, Inc. v. Teders, 868 F.
Supp. 2d 572, 577 (S.D. Miss. 2012) (citations omitted). “The district court is not
2

obligated to consult only the assertions in the plaintiff’s complaint . . . . Rather, the
district court may consider the contents of the record at the time of the motion,
including affidavits.” Paz, 445 F.3d at 812 (citations omitted). But “uncontroverted
allegations in the plaintiff’s complaint must be accepted as true, and all disputed facts
must be construed in the plaintiff’s favor.” Blacklidge Emulsions, Inc. v. Blankenship,
2013 WL 6492876, at *1 (S.D. Miss. Dec. 10, 2013) (citations omitted).
1.

Long-Arm Statute

“Mississippi’s long-arm statute provides the courts shall have jurisdiction over
a nonresident who: (1) makes a contract with a resident of this state to be performed
in whole or in part by any party in this state, (2) commits a tort in whole or in part in
this state against a resident or nonresident, or (3) does any business or performs any
character of work or service in this state.” Smith v. Antler Insanity, LLC, 58 F. Supp.
3d 716, 720 (S.D. Miss. 2014). Plaintiff argues that jurisdiction over Defendant is
appropriate under the doing-business and tort prongs.
a.

Doing-Business Prong

The doing-business prong applies to “[a]ny nonresident . . . who shall do any
business or perform any character of work or service in this state if the action or
proceeding accrues from acts done in this state.” Adara Networks, Inc. v. Langston,
301 So. 3d 618, 624 (Miss. 2020) (quoting C. H. Leavell & Co. v. Doster, 211 So. 2d
813, 815 (Miss. 1968)). A nonresident defendant may be “doing business” in
Mississippi if “he did various acts here for the purpose of realizing a pecuniary benefit
3

or otherwise accomplishing an object.” Retail Coach v. r360, LLC, 2017 WL 875831,
at *3 (N.D. Miss. Mar. 3, 2017) (quoting McDaniel v. Ritter, 556 So. 2d 303, 309 (Miss.
1989)).
Defendant argues that jurisdiction is improper under the doing-business prong
because Plaintiff has not identified any actions by it in Mississippi, other than
requests for information from Mississippi residents for an audit conducted in
Washington, D.C. Defendant presented a declaration from its Senior Managing
Director, Gary Wingo, in which he declares that 1) Defendant does not have any
members in Mississippi, 2) its principal place of business is in New York, 3) it has no
offices or employees in Mississippi, and 4) it has not been authorized to do business
in Mississippi. Exhibit 1 to Motion to Dismiss at 1, Durham v. Ankura Consulting
Group, LLC, No. 2:20-CV-112-KS-MTP (S.D. Miss. Aug. 10, 2020), ECF No. 15-1.
Wingo claims that Defendant “is a professional services consulting firm that provides
(among other things) administrative services to various settlement funds, including
certain trusts, and that “[n]one of the Trusts were formed under Mississippi law and
none of them are located in Mississippi.” Id.
Plaintiff alleged – and Defendant has not denied – that Defendant contacted
Mississippi law firms to obtain copies of x-ray films for its audits. Amended
Complaint at 5, Durham v. Ankura Consulting Group, LLC, No. 2:20-CV-112-KSMTP (S.D. Miss. July 27, 2020), ECF No. 12. According to Plaintiff, Defendant then
mailed correspondence, a software program, and the copies of the x-rays back to the
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Mississippi law firms, with instructions to provide them to Plaintiff, who was to send
them back to Defendant with certain responses or mark-ups. Id. Plaintiff alleges that
Defendant conducted these activities while knowing 1) that Plaintiff was a
Mississippi resident, 2) that some of the claimants were Mississippi residents, 3) that
the x-rays were stored in Mississippi, and 4) that the law firms it was communicating
with were in Mississippi. Id. at 6.
Plaintiff essentially argues that Defendant conducted business in Mississippi
because, as part of the audit it was hired to conduct by the asbestos trusts, it
corresponded with persons in Mississippi and obtained medical records of persons
who live in Mississippi, all with the knowledge that its activities affected persons in
Mississippi, including Plaintiff. In other words, Plaintiff contends that Defendant
directed its audit activities at Mississippi. The Court agrees, and finds that
Defendant’s contacts are sufficient to establish jurisdiction under the doing-business
prong of the long-arm statute. See ITL Int’l, Inc. v. Constenla, S.A., 669 F.3d 493, 495
(5th Cir. 2012) (defendant was amenable to suit under doing-business prong where
only contact with Mississippi was an exchange of possession of goods from plaintiffs’
shipper to defendants’ shipper in Gulfport).
b.

Tort Prong

“Under the tort prong of the Mississippi long-arm statute, personal jurisdiction
is proper if any element of the tort (or any part of any element) takes place in
Mississippi.” Allred v. Moore & Peterson, 117 F.3d 278, 282 (5th Cir. 1997). This Court
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has previously addressed the long-arm statute’s application to a tortious interference
claim. Several district judges in this state have held that when the plaintiff’s
principal place of business or residence is in Mississippi, the alleged injury
necessarily occurred here. See, e.g. Chain Elec. Co. v. Joubert, 2016 WL 1020861, at
*2 (S.D. Miss. Mar. 14, 2016) (citing numerous cases). Plaintiff, a Mississippi
resident, alleges that Defendant’s actions caused him to suffer damages in the form
of lost business in Mississippi. Plaintiff further alleged that Defendant knew Plaintiff
was a Mississippi resident, and that he contracted with Mississippi attorneys. These
allegations are sufficient to demonstrate that an element of tortious interference
occurred in Mississippi, and that jurisdiction is appropriate under the tort prong of
the long-arm statute.
Defendant contends that Plaintiff was not injured in Mississippi. It argues that
Plaintiff merely experienced “consequences stemming from the actual tort injury,”
and that such consequences are not enough to “confer personal jurisdiction at the site
or sites where such consequences happen to occur.” Dunn v. Yager, 58 So. 3d 1171,
1184 (Miss. 2011). Defendant argues that, by Plaintiff’s own allegations, the tort
occurred outside Mississippi, where Defendant conducted its audit. Setting aside the
issue of Defendant’s alleged actions directed at Mississippi, such as correspondence
with Mississippi law firms, the “long-arm statute contains no requirement that the
part of the tort which causes the injury be committed in Mississippi.” Id. (quoting
Horne v. Mobile Area Water & Sewer Sys., 897 So. 2d 972, 977 (Miss. 2004)).
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Here, Plaintiff’s actual injury, not its mere consequences, occurred in
Mississippi. Defendant directed numerous actions, as part of its audit and the
resulting fallout from the audit, to Mississippi. Mississippi law firms ceased retaining
Plaintiff’s services. Plaintiff’s economic losses occurred here. For these reasons, the
Court concludes that the tort prong of the long-arm statute applies.
2.

Due Process Clause

The Fourteenth Amendment’s Due Process Clause “permits the exercise of
personal jurisdiction over a nonresident defendant when (1) that defendant has
purposefully availed himself of the benefits and protections of the forum state by
establishing minimum contacts with the forum state; and (2) the exercise of
jurisdiction over that defendant does not offend traditional notions of fair play and
substantial justice.” Unified Brands, 868 F. Supp. 2d at 577. “Minimum contacts . . .
can be established either through contacts sufficient to assert specific jurisdiction, or
contacts sufficient to assert general jurisdiction.” Id.
Plaintiff contends that the Court has specific jurisdiction over Defendant.
“Specific jurisdiction exists when the defendant has purposefully directed his
activities at residents of the forum . . . and the litigation results from alleged injuries
that arise out of or relate to those activities.” Clemens v. McNamee, 615 F.3d 374, 378
(5th Cir. 2010). The Court “applies a three-step analysis to determine specific
jurisdiction: (1) whether the defendant has minimum contacts with the forum state;
(2) whether the plaintiff’s cause of action arises out of or results from the defendant’s
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forum-related contacts; and (3) whether the exercise of personal jurisdiction is fair
and reasonable.” Jackson v. Tanfoglio Guiseppe S.R.L., 615 F.3d 579, 585 (5th Cir.
2010).
The Court’s inquiry “focuses on the relationship among the defendant, the
forum, and the litigation.” Walden v. Fiore, 571 U.S. 277, 284, 134 S. Ct. 1115, 188 L.
Ed. 2d 12 (2014). “[T]he relationship must arise out of contacts that the defendant
himself creates with the forum State.” Id. In other words, the Court must determine
whether the nonresident defendant directed specific acts toward the forum state.
McFadin v. Gerber, 587 F.3d 753, 762 (5th 2009); Bustos v. Lennon, 538 F. App’x 565,
568 (5th Cir. 2013). “[E]ven an act done outside the [forum] state that has
consequences or effects within the state will suffice as a basis for jurisdiction in a suit
arising from those consequences if the effects are seriously harmful and were
intended or highly likely to follow from the nonresident defendant’s conduct.”
McFadin, 587 F.3d at 761. However, “[m]erely causing harm to a resident of the state
is not sufficient.” Bustos, 538 F. App’x at 568. Likewise, “foreseeable injury in the
state is not enough absent the direction of specific acts toward the forum.” Id.
Here, Plaintiff alleges that Defendant agreed to audit him, intentionally
directing its auditing activities toward Mississippi, while knowing that Plaintiff is a
Mississippi resident and that the audit would harm him. In other words, Plaintiff
alleged “act[s] done outside the [forum] state” with intended “consequences or effects
within the state.” McFadin, 587 F.3d at 761. Defendant is “not charged with mere
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untargeted negligence,” but, rather, “intentional . . . tortious actions . . . knowingly
initiated and aimed at” a Mississippi resident. Guidry v. U.S. Tobacco Co., Inc., 188
F.3d 619, 630 (5th Cir. 1999). Under these circumstances, Defendant “must
reasonably anticipate being haled into court” in Mississippi. Id. Therefore, the Court
concludes that Defendant has minimum contacts with Mississippi, and that the
present action arises from those contacts.
“The specific jurisdiction inquiry next asks whether jurisdiction would comport
with fair play and substantial justice,” Taishan-Gypsum Co. v. Gross, 753 F.3d 521,
544 (5th Cir. 2014), or “whether the exercise of personal jurisdiction is fair and
reasonable.” Jackson, 615 F.3d at 585. “[T]he burden shifts to the defendant to defeat
jurisdiction by showing that its exercise would be unfair or unreasonable.” Seiferth v.
Helicopteros Atuneros, Inc., 472 F.3d 266, 271 (5th Cir. 2006). The Court considers
five factors: “(1) the defendant’s burden; (2) the forum state’s interests; (3) the
plaintiff’s interest in convenient and effective relief; (4) the judicial system’s interest
in efficient resolution of controversies; and (5) the state’s shared interest in furthering
fundamental social policies.” Taishan-Gypsum, 753 F.3d at 544.
Defendant made no attempt in briefing to demonstrate that the Court’s
exercise of personal jurisdiction here would be unfair or unreasonable. Rather, its
argument focused solely on the minimum contacts analysis. Therefore, the Court
concludes that Defendant failed to carry its burden in the third prong of the specific
jurisdiction analysis.
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For all these reasons, the Court concludes that it has personal jurisdiction over
Defendant in the present case.
B.

Subject Matter Jurisdiction
Next, Defendant argues that the Court lacks subject matter jurisdiction over

this case because Plaintiff lacks standing. “Article III of the Constitution confines the
federal courts to adjudicating actual ‘cases’ or ‘controversies.’” Allen v. Wright, 468
U.S. 737, 750, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984). The case-or-controversy
requirement reflects the separation of powers principle, which is central to the
foundation of the federal government, and limits federal power via several doctrines,
such as standing, mootness, and ripeness. Id. In general terms, Article III standing
requires that a plaintiff “allege an injury in fact that is fairly traceable to the
defendant’s conduct and likely to be redressed by a favorable ruling.” Harold H.
Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n. 2 (5th Cir. 2011). The party
invoking federal jurisdiction must demonstrate that he has standing to sue at the
time the complaint is filed. Pluet v. Frazier, 355 F.3d 381, 385 (5th Cir. 2004).
Article III standing implicates subject matter jurisdiction and should be
examined under Rule 12(b)(1). Harold H. Huggins, 634 F.3d at 795 n. 2. When
addressing a motion under Rule 12(b)(1), the Court generally may consider “(1) the
complaint alone; (2) the complaint supplemented by undisputed facts evidenced in
the record; or (3) the complaint supplemented by undisputed facts plus the court’s
resolution of disputed facts.” Wolcott v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011).
10

The Court may also generally rely on documents of public record or documents
attached to the complaint. Voisin’s Oyster House, Inc. v. Guidry, 799 F.2d 183, 189 n.
5 (5th Cir. 1986). The party asserting jurisdiction has the burden of proof. Wolcott,
635 F.3d at 762.
However, “[w]hen standing is challenged on the basis of the pleadings, [the
Court] must accept as true all material allegations of the complaint and . . . construe
the complaint in favor of the complaining party.” Ass’n of Am. Physicians & Surgeons
v. Tex. Med. Bd., 627 F.3d 547, 550 (5th Cir. 2010). “At the pleading stage, general
factual allegations of injury resulting from the defendant’s conduct may suffice, for
on a motion to dismiss we presume that general allegations embrace those specific
facts that are necessary to support the claim.” Massachusetts v. EPA, 549 U.S. 497,
518, 127 S. Ct. 1438, 167 L. Ed. 2d 248 (2007). But “standing cannot be inferred
argumentatively from averments in the pleadings, but rather . . . it is the burden of
the party who seeks the exercise of jurisdiction in his favor clearly to allege facts
demonstrating that he is a proper party to invoke judicial resolution of the dispute.”
FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S. Ct. 596, 107 L. Ed. 2d 603 (1990)
(internal citations and punctuation omitted). Application of these requirements is not
a “mechanical exercise.” Pennell v. City of San Jose, 485 U.S. 1, 7, 108 S. Ct. 849, 99
L. Ed. 2d 1 (1988).
Defendant argues that Plaintiff has not alleged that he suffered or will suffer
an actual, concrete injury. Specifically, Defendant contends that Plaintiff has not
11

alleged that he was entitled to any payment from Defendant, but, rather, he alleged
that certain law firms refused to pay him after Defendant returned an unfavorable
decision on the audit. Defendant argues that a possible loss of fees from hypothetical
future claims is not certain enough to establish standing, citing Mandelbrot v.
Armstrong World Indus. Asbestos Personal Injury Settlement Trust, 618 F. App’x 57
(3rd Cir. 2015).
Mandelbrot is not applicable here. In that case, the Third Circuit held that an
attorney who represented asbestos claimants could not sue settlement trusts for their
alleged refusal to accept claims from his law firm. Id. at 58. The Court noted that
“[o]nly claimants themselves, not the claimants’ representatives, have standing to
assert legally cognizable claims against a trust.” Id. Here, Defendant is not a trust,
and Plaintiff is not suing it for breach of trust.
Defendant cites Mandelbrot for the general principle that the loss of potential
fees is not certain enough to create an injury-in-fact. Id. at 59. However, Diamond v.
Charles, 476 U.S. 54, 106 S. Ct. 1697, 90 L. Ed. 2d 48 (1986), cited by the Third
Circuit, provided that a fee award in a case challenging the constitutionality of a state
law was not enough to grant an intervenor standing because the fee award had no
“nexus to the substantive character of the statute or regulation at issue.” Id. at 70. In
other words, the fee award at issue there was not “fairly traceable” to the allegedly
unconstitutional statute and, therefore, not “likely to be redressed by a favorable
ruling.” FNC, 634 F.3d at 795 n. 2.
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Here, Plaintiff asserted a claim of tortious interference with contract, claiming
that Defendant intentionally interfered with his business relationship with certain
law firms by creating an audit that he was sure to fail, and then sending
correspondence to his business associates advising them that he had failed the audit.
The loss of both past and future fees that he alleges is fairly traceable to Defendants’
alleged tortious conduct, and allegations of economic injury are sufficient for purposes
of establishing the injury-in-fact element of standing. Clinton v. City of New York,
524 U.S. 417, 432, 118 S. Ct. 2091, 141 L. Ed. 2d 393 (1998); Cole v. GMC, 484 F.3d
717, 723 (5th Cir. 2007). As this Court has noted in a prior opinion, “while it is clear
that a future injury may, in some circumstances, be sufficiently certain or imminent
to satisfy Article III’s standing requirements, it is likewise clear that there is an outer
limit as to how far a plaintiff may reach.” Bryant v. Holder, 2011 WL 710693, at *10
(S.D. Miss. Feb. 3, 2011). But it is unlikely that there is a fixed time limit, given the
fluid nature of the standing analysis. Id. (citing Pennell, 485 U.S. at 7).
Construing Plaintiff’s allegations in the light most favorable to Plaintiff, Ass’n
of Am. Physicians & Surgeons, 627 F.3d at 550, the Court concludes that his alleged
future loss of fees is sufficiently concrete and imminent to confer standing.
C.

Failure to State a Claim
Next, Defendant argues that Defendant’s Amended Complaint should be

dismissed for failure to state a claim for which relief can be granted. To survive a
motion to dismiss under Rule 12(b)(6), the “complaint must contain sufficient factual
13

matter, accepted as true, to state a claim to relief that is plausible on its face.” Great
Lakes Dredge & Dock Co. LLC v. La. State, 624 F.3d 201, 210 (5th Cir. 2010). “To be
plausible, the complaint’s factual allegations must be enough to raise a right to relief
above the speculative level.” Id. (punctuation omitted). The Court must “accept all
well-pleaded facts as true and construe the complaint in the light most favorable to
the plaintiff.” Id. But the Court will not accept as true “conclusory allegations,
unwarranted factual inferences, or legal conclusions.” Id. Likewise, “a formulaic
recitation of the elements of a cause of action will not do.” PSKS, Inc. v. Leegin
Creative Leather Prods., Inc., 615 F.3d 412, 417 (5th Cir. 2010) (punctuation omitted).
“While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937,
1950, 173 L. Ed. 2d 868 (2009).
“The court’s review is limited to the complaint, any documents attached to the
complaint, and any documents attached to the motion to dismiss that are central to
the claim and referenced by the complaint.” Ironshore Europe DAC v. Schiff Hardin,
LLP, 912 F.3d 759, 763 (5th Cir. 2019). The Court may also consider matters of public
record, Davis v. Bayless, 70 F.3d 367, n. 3 (5th Cir. 1995), and any other matters of
which it may take judicial notice. Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir.
2011). “If, on a motion under Rule 12(b)(6) . . . , matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56,” and “[a]ll parties must be given a reasonable
14

opportunity to present all the material that is pertinent to the motion.” FED. R. CIV.
P. 12(d). However, the “district court has complete discretion to either accept or
exclude the evidence.” Gen. Retail Servs., Inc. v. Wireless Toyz Franchise, LLC, 255
F. App’x 775, 783 (5th Cir. 2008).
Both parties presented materials outside the pleadings. The Court declines to
consider them when addressing Defendant’s 12(b)(6) arguments.
1.

Negligence

Defendant argues that Plaintiff failed to state a claim of negligence because
Plaintiff has not alleged that, as a third-party to Defendant’s contract with the trusts,
he detrimentally relied on Defendant’s audit. Anyone “providing expert or specialized
services to the public” is “held to a duty of reasonable care . . . .” Hosford v. McKissack,
589 So. 2d 108, 110 (Miss. 1991). Privity of contract is not required. Id. (citing Miss.
Code Ann. § 11-7-20). A person offering services to the public may be liable in tort to
third parties with whom it did not contract to provide said services, under certain
circumstances. Id. at 110-11. The question is one of “foreseeability and detrimental
reliance.” Id. at 110. An auditor may be liable to any third parties it “may reasonably
be expected to supply with information,” who then rely on the information to their
detriment. Id. at 111.
Plaintiff did not allege any facts indicating that he detrimentally relied on
Defendant’s audit. In fact, he did not even make a conclusory allegation of
detrimental reliance. Rather, he plainly disagreed with Defendant’s findings.
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Therefore, the Court finds that Plaintiff has failed to allege sufficient facts to state a
claim of negligence against Defendant. See Arnona v. Smith, 749 So. 2d 63, 66 (Miss.
1999) (where home owners did not detrimentally rely on title opinion by attorney
retained by buyer, their negligence claim failed).
2.

Tortious Interference

Defendant argues that Plaintiff failed to state a claim of tortious interference
because he did not allege the existence of an enforceable contract between himself
and any law firms.
“An action for tortious interference with contract ordinarily lies when a party
maliciously interferes with a valid and enforceable contract, causing one party not to
perform and resulting in injury to the other contracting party.” Hollywood Cemetery
Ass’n v. Bd. of Mayor and Selectmen of City of McComb, 760 So. 2d 715, 719 (Miss.
2000). A plaintiff asserting this cause of action must prove the following elements:
(1) that the acts were intentional and willful;
(2) that they were calculated to cause damage to the plaintiffs in their
lawful business;
(3) that they were done with the unlawful purpose of causing damage
and loss, without right or justifiable cause on the part of the defendant
(which constitutes malice); and
(4) that actual damage and loss resulted.
McClinton v. Delta Pride Catfish, Inc., 792 So. 2d 968, 976 (Miss. 2001). Additionally,
“[t]he plaintiff must prove that an enforceable obligation existed between the plaintiff
and another party,” and “that the contract would have been performed but for the
16

alleged interference.” Par Indus., Inc. v. Target Container Co., 708 So. 2d 44, 48 (Miss.
1998).
In the Amended Complaint, Plaintiff alleged that he “regularly entered into
valid verbal contracts with attorneys and law firms” to read x-rays for asbestos claims
in exchange for payment. Amended Complaint [12], at 13. Plaintiff further alleged
that he had “valid existing verbal contracts” with such attorneys, until Defendant
sent correspondence to them, intentionally interfering with said contracts. Id.
Plaintiff named specific attorneys, id. at 11, 13, and he attached an affidavit from one
of them. Exhibit 3 to Amended Complaint, Durham v. Ankura Consulting Group,
LLC, No. 2:20-CV-112-KS-MTP (S.D. Miss. July 27, 2020), ECF No. 12-3. The
attorney, Gene Hortman, declared that his firm “had an oral agreement with
[Plaintiff] . . . for him to read and interpret chest x-rays of potential asbestos clients
. . . .” Id. at 1. Hortman said that his firm was “still involved in representing asbestos
clients and [it] had planned on continuing to use [Plaintiff] to perform x-ray reports
and other asbestos claims related professional services for years to come.” Id.
Hortman also said that when his firm received the correspondence notifying them
that the trusts would no longer accept x-ray reports from Plaintiff, the firm owed
Plaintiff $49,720.00.” Id. at 2. “Because of the notice . . . [the] firm did not pay
[Plaintiff] the $49,720 owed to him for the B-reads he had done . . . .” Id.
In the Court’s opinion, these factual allegations are sufficient to state a claim
for tortious interference with contract. Plaintiff included both general and specific
17

factual allegations that he had verbal contracts with law firms for provision of x-ray
reports, and that the audit report caused the law firms to not perform their end of the
contract. He included specific allegations regarding fees owed to him by one law firm.
The Court renders no opinion as to the extent of damages that Plaintiff can prove
with sufficient certainty, but this is only the pleading stage.
Defendant also argues that its alleged interference was privileged and,
therefore, not actionable. Defendant contends that its actions were privileged because
it had a contractual right to perform the audit. For a viable claim of intentional
interference, “the interference complained of must be wrongful.” Gulf Coast Hospice,
LLC v. LHC Group, Inc., 273 So. 3d 721, 746 (Miss. 2019). “Even if a party interferes
with the . . . execution of a contract, if he has a legitimate interest therein or a
contractual right to perform said act it is privileged and thus not wrongful and
actionable.” Id.
The tortious interference of which Plaintiff complains is not the performance
of an audit. Rather, Plaintiff contends that Defendant intentionally performed a
dishonest audit with the purpose of failing him. Specifically, Plaintiff alleges that
Defendant intentionally selected x-rays that could be read in different manners,
intentionally ignoring the industry’s recognition of variability in certain scan results.
Defendant does not argue – or present any authority demonstrating – that it had a
legitimate interest or contractual right to conduct an intentionally slanted, dishonest
audit, which is what Plaintiff alleges. Therefore, the Court rejects Defendant’s
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privilege argument.
D.

Transfer
Finally, Defendant argues that this case should be transferred to the United

States District Court for the District of Columbia pursuant to 28 U.S.C. § 1404(a).
District courts “have broad discretion in deciding whether to order a transfer”
pursuant to § 1404(a). In re Volkswagen of Am., 545 F.3d 304, 311 (5th Cir. 2008).
The statute provides: “For the convenience of the parties and witnesses, in the
interest of justice, a district court may transfer any civil action to any other district
or division where it might have been brought or to any district or division to which
all parties have consented.” 28 U.S.C. § 1404(a).
The first question under Section 1404(a) is whether the case “might have been
brought in the destination venue.” In re Volkswagen of Am., 545 F.3d at 312. A civil
action may be brought in:
(1) a judicial district in which any defendant resides, if all defendants
are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as
provided in this section, any judicial district in which any defendant is
subject to the court’s personal jurisdiction with respect to such action.
28 U.S.C. § 1392(b). The Court will assume, for the purpose of addressing the
present motion, that Defendant had demonstrated that this case could have been
brought in the District of Columbia.
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Next, a party seeking a transfer under § 1404(a) must demonstrate “good
cause” for a transfer. In re Volkswagen of Am., 545 F.3d at 315. Good cause has been
defined as follows:
When viewed in the context of § 1404(a), to show good cause means that
a moving party, in order to support its claim for a transfer, must satisfy
the statutory requirements and clearly demonstrate that a transfer is
for the convenience of parties and witnesses, in the interest of justice.
Thus, when the transferee venue is not clearly more convenient than the
venue chosen by the plaintiff, the plaintiff’s choice should be respected.
When the movant demonstrates that the transferee venue is clearly
more convenient, however, it has shown good cause and the district
court should therefore grant the transfer.
Id. To determine whether the transferee venue is clearly more convenient than the
present venue, the Court considers various factors impacting the private and public
interests in the case. Id.
The private interest factors are: (1) the relative ease of access to the
sources of proof; (2) the availability of compulsory process to secure the
attendance of witnesses; (3) the cost of attendance for willing witnesses;
and (4) all other practical problems that make trial of a case easy,
expeditious and inexpensive. The public interest factors are (1) the
administrative difficulties flowing from court congestion; (2) the local
interest in having localized interests decided at home; (3) the familiarity
of the forum with the law that will govern the case; and (4) the avoidance
of unnecessary problems of conflict of laws or in the application of
foreign law.
Id. While these factors “are appropriate for most transfer cases, they are not
necessarily exhaustive or exclusive,” and none of them carry “dispositive weight.” Id.
Section

1404(a)

“requires

an

individualized,

case-by-case

consideration

of

convenience and fairness.” In re Rolls Royce Corp., 775 F.3d 671, 678 (5th Cir. 2014).
Defendant argues that the public interest factors are irrelevant because there
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is no localized interest in keeping the case here. It also argues that the private factors
“overwhelmingly” support transferring the case to D.C. because its audit team is
based there, and all the records, witnesses, and other sources of proof related to its
actions are there.
As for the private-interest factors, the Court is not convinced that they
“overwhelmingly” support a transfer, as Defendant argues. Defendant conveniently
ignored substantial evidence here in Mississippi. The law firms with which
Defendant corresponded are here. Plaintiff’s past and future law firm clients are here.
Plaintiff is here. All of these sources of evidence go toward both Plaintiff’s damages
and the question of causation. Therefore, the Court concludes that the privateinterest factors do not demonstrate that either Mississippi or D.C. is clearly more
convenient than the other. Either way, someone will have to contend with the
geographical distance.
As for the public-interest factors, court congestion is not an issue. In fact, the
undersigned senior judge recently transferred half his case load to new judges.
Mississippi has a local interest in this matter because Plaintiff is a Mississippi
citizen. In contrast, Defendant is not citizen of D.C. Finally, the Court assumes that
it has greater familiarity with Mississippi law than a D.C. court, and Defendant has
not represented that there will be any conflict-of-law issues.
For all these reasons, the Court concludes that Defendant has not
demonstrated good cause for a transfer.
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III. CONCLUSION
For these reasons, the Court grants in part and denies in part Defendant’s
Motion to Dismiss [15]. The Court grants the motion as to Plaintiff’s claims of
negligence and gross negligence, but the Court denies it in all other respects.
SO ORDERED AND ADJUDGED this 11th day of January, 2021.
/s/

Keith Starrett
KEITH STARRETT
UNITED STATES DISTRICT JUDGE

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