U-Save Auto Rental of America, Inc. v. Sandford Miller

Filing 277

ORDER granting 228 Motion for Summary Judgment Signed by Chief District Judge Louis Guirola, Jr on 06/25/2014 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
U-SAVE AUTO RENTAL OF AMERICA, INC.
v.

PLAINTIFF
CAUSE NO. 3:13CV127-LG-JMR

SANFORD MILLER

DEFENDANT

SANFORD MILLER

COUNTER-CLAIMANT/
THIRD PARTY PLAINTIFF

v.
U-SAVE AUTO RENTAL OF AMERICA,
INC.; FRANCHISE SERVICES OF
NORTH AMERICA, INC.; and
THOMAS P. McDONNELL, III

COUNTER-DEFENDANT/
THIRD PARTY DEFENDANTS

ORDER GRANTING FSNA’S SUPPLEMENTAL
MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is the Supplemental Motion for Summary
Judgment [228] filed by Franchise Services of North America, Inc., (FSNA).
Sanford Miller has filed a response in opposition to the Motion, and FSNA has filed
a reply. After reviewing the submissions of the parties and the applicable law, the
Court finds that FSNA’s Motion should be granted.
BACKGROUND
In a Memorandum Opinion and Order [221] entered on May 22, 2014, the
Court dismissed the breach of contract and breach of the duty of good faith and fair
dealing claims that Sanford Miller filed against FSNA, but FSNA did not seek
summary judgment as to Miller’s defamation and intentional infliction of emotional
distress claims. However, the Court granted the Motion for Summary Judgment

filed by FSNA’s chief executive officer, Thomas P. McDonnell, III, as to Miller’s
defamation and emotional distress claims. After the Memorandum Opinion and
Order was entered, FSNA requested permission to file an out-of-time motion for
summary judgment, claiming that FSNA is entitled to summary judgment for the
same reasons that summary judgment was granted in favor of McDonnell. In the
interest of consistency as well as the interest of saving time and resources, the
Court permitted FSNA to file its supplemental motion.
DISCUSSION
I. Miller’s Defamation Claim against FSNA
Miller argues that FSNA is liable for defamation committed by McDonnell,
its CEO. Essentially, Miller claims that FSNA is not entitled to summary
judgment, because this Court erred in holding that McDonnell was entitled to
summary judgment. The summary judgment in favor of McDonnell was granted,
because this Court found that McDonnell was entitled to a qualified privilege.
Miller argues that McDonnell was not entitled to a qualified privilege, because he
acted with malice.
In the context of a defamation claim, actual malice is defined as a statement
made “with knowledge that it was false or with reckless disregard of whether it was
false or not.” Eckman v. Cooper Tire & Rubber Co., 893 So. 2d 1049, 1053 (¶13)
(Miss. 2005). “[I]f the defendant honestly believed the plaintiff’s conduct to be such
as he described it, the mere fact that he used strong words in describing it is no
evidence of malice.” Id.
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McDonnell allegedly told third parties that Miller was terminated by FSNA
for self-dealing. Miller argues that this statement was made with reckless
disregard for the truth, because McDonnell did not conduct an investigation into
whether Miller acted with self-dealing before he made the statement.
A reckless disregard for the truth requires more than a departure from
reasonably prudent conduct. There must be sufficient evidence to
permit the conclusion that the defendant in fact entertained serious
doubt as to the truth of his publication . . . . The standard is a
subjective one – there must be sufficient evidence to permit the
conclusion that the defendant actually had a high degree of awareness
of . . . probable falsity.
Journal Publ’g Co. v. McCullough, 743 So. 2d 352, 361 (Miss. 1999) (internal
citations and quotation marks omitted). Since there is no evidence that McDonnell
had a “high degree of awareness” that the statements he made were false, both
McDonnell and his employer, FSNA, are entitled to summary judgment as to
Miller’s defamation claim. See id.
II. Miller’s Intentional Infliction of Emotional Distress Claim against
FSNA
As with the defamation claim, Miller intentional infliction of emotional
distress claim seeks to hold FSNA liable for McDonnell’s conduct. Miller argues
that this Court did not provide sufficient explanation for granting summary
judgment in favor of McDonnell.
“Generally, ‘meeting the requisites of a claim for intentional infliction of
emotional distress is a tall order in Mississippi.” Riley v. F.A. Richard & Assocs.,
Inc., 16 So. 3d 708, 719 (¶33) (Miss. Ct. App. 2009) (quoting Speed v. Scott, 787 So.

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2d 626, 630 (¶17) (Miss. 2001)). The focus when considering the merits of such a
claim should be on “the defendant’s conduct, not the plaintiff’s emotional condition.”
Robinson v. Hill City Oil Co., Inc., 2 So. 3d 661, 668 (¶25) (Miss. Ct. App. 2008). “A
claim for intentional infliction of emotional distress requires conduct that is ‘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.’” Jones v. Mullen, 100 So. 3d 490, 498 (Miss. Ct. App. 2012)
(quoting Langston v. Bigelow, 820 So. 2d 752, 757 (¶11) (Miss. Ct. App. 2002)). For
example, sexual assault of a child constitutes behavior that satisfies this strict
standard. J.R. ex rel. R.R. v. Malley, 62 So. 3d 902, 907 (¶15) (Miss. 2011).
Furthermore, malicious prosecution and racial slurs may rise to the standard.
Perkins v. Wal-Mart Stores, Inc., 46 So. 3d 839, 848-49 (Miss. Ct. App. 2010); Jones
v. Fluor Daniel Servs. Corp., 959 So. 2d 1044, 1048-49 (Miss. 2007). However,
“liability clearly does not extend to mere insults, indignities, threats, annoyances,
petty oppression, or other trivialities.” Brown v. Inter-City Fed. Bank for Sav., 738
So. 2d 262, 265 (Miss. Ct. App. 1999). Furthermore, “[o]nly 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.” Id.
This lawsuit arose out of the termination of Miller’s employment. Miller has
not alleged any conduct that is extreme and outrageous, and he certainly has not

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alleged conduct that could reasonably be viewed as “so extreme in degree, as to go
beyond all possible bounds of decency.” See Jones, 100 So. 3d at 498. As a result,
FSNA is entitled to summary judgment as to Miller’s intentional infliction of
emotional distress claim.
CONCLUSION
For the foregoing reasons, FSNA’s Supplemental Motion for Summary
Judgment is granted. All of the claims Miller asserted against FSNA have now
been dismissed.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the
Supplemental Motion for Summary Judgment [228] filed by Franchise Services of
North America, Inc., is GRANTED. Sanford Miller’s defamation and intentional
infliction of emotional distress claims against FSNA are hereby DISMISSED
WITH PREJUDICE.
SO ORDERED AND ADJUDGED this the 25th day of June, 2014.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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