Bracey v. City of Jackson, Mississippi et al

Filing 35

ORDER granting 14 Motion to Dismiss for the reasons set out in the Order. Yarber's Counterclaim is dismissed. Signed by District Judge Daniel P. Jordan III on March 20, 2017. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
KIMBERLY V. BRACEY

PLAINTIFF

v.

CIVIL ACTION NO. 3:16cv657-DPJ-FKB

CITY OF JACKSON, MISSISSIPPI, et al.

DEFENDANTS
ORDER

This case is before the Court on Counter-Defendant Kimberly V. Bracey’s Motion to
Dismiss [14]. Bracey asks the Court to dismiss Counter-Plaintiff Tony Yarber’s Counterclaim
[9] against her. For the reasons that follow, the motion is granted and the Counterclaim is
dismissed.
I.

Facts and Procedural History
On August 25, 2016, Kimberly V. Bracey filed this lawsuit alleging sex-discrimination,

sexual-harassment, hostile-work-environment, and retaliation claims against the City of Jackson
and Mayor Tony Yarber, individually and in his official capacity. In general terms, Bracey’s
claims center on allegations of mistreatment by Yarber while she was employed by the City of
Jackson from April 2014, through April 2015.
On October 24, 2016, Yarber, in his individual capacity, filed his Answer and
Counterclaim [9]. He asserts claims against Bracey for abuse of process and defamation related
to her filing of the Complaint and Amended Complaint [3] in this action. Bracey moved to
dismiss those claims under Federal Rule of Civil Procedure 12(b)(6). Following the entry of a
show-cause order, Yarber responded in opposition, and Bracey filed a reply. The Court has
personal and subject-matter jurisdiction and is prepared to rule.

II.

Standard
When considering a motion to dismiss under Rule 12(b)(6), the “court accepts ‘all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’” Martin K. Eby
Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting Jones v.
Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam)). But “the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). To overcome a motion to dismiss, a plaintiff must plead
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
“Factual allegations must be enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555
(citations and footnote omitted).
III.

Analysis
A.

Abuse of Process

Yarber alleges that “the filing of the Complaint and the filing and service of the Amended
Complaint containing false allegations . . . constitute abuse of process.” Countercl. [9] at 9.
To maintain an action for abuse of process, the plaintiff must establish: “(1) that
the defendant made an illegal and improper perverted use of the process, a use
neither warranted nor authorized by the process; (2) that the defendant had an
ulterior motive or purpose in exercising such illegal, perverted, or improper use of
process; and (3) that damage resulted to the plaintiff from the irregularity.”
Moon v. Condere Corp., 690 So. 2d 1191, 1197 (Miss. 1997) (quoting State ex rel. Foster v.
Turner, 319 So. 2d 233, 236 (Miss. 1975)).
Typical of the cases where the action of abuse of process will lie is where through
the employment of process a man has been arrested or his property seized in order
to extort payment of money from him, even though the claim be a just one other
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than in that suit, or to prevent a conveyance, or to compel him to give up
possession to some thing or value, when such were not the legal objects of the
suit.
Edmonds v. Delta Democrat Publishing Co., 93 So. 2d 171, 175 (Miss. 1957). Where “the only
process involved was a simple summon to defend the suit,” a claim for abuse of process will not
lie. Id.; see also Gatheright v. Clark, No. 16-60364, 2017 WL 728698, at *3 (5th Cir. Feb. 23,
2017) (“Where a claim is based solely on the filing of a suit, and not on any perversion of the
process once process issues, a claim for abuse of process will fail.”); Austin Firefighters Relief &
Ret. Fund v. Brown, 760 F. Supp. 2d 662, 676–77 (S.D. Miss. 2010) (“[W]here an abuse of
process claim is based simply on the filing of a lawsuit, it cannot be said that process of the court
has been abused by accomplishing a result not commanded by it or not lawfully obtainable under
it.”).
In this case, as in the cases cited above, Yarber’s counterclaim is “not based on any
perversion of any process[;] rather, it [is] based simply on the filing of the suit.” Moon, 690 So.
2d at 1197 (citing Edwards, 93 So. 2d at 174); see also id. (“[T]he only process involved in this
case was the summons. There were no arrests made, and there was no seizure of property. Thus,
there was no improper use of process after it had been issued.”). Because Yarber’s abuse-ofprocess claim is based solely on Bracey’s filing of this lawsuit, the claim fails as a matter of law.
The motion to dismiss is granted as to the abuse-of-process claim, which is dismissed with
prejudice.
B.

Defamation

In his defamation count, Yarber claims that Bracey “made numerous false and
defamatory statements concerning” him. Countercl. [9] at 10. All of the false statements
attributed to Bracey in the facts section of the Counterclaim are described as contained within
either the Complaint or the Amended Complaint in this matter. Id. at 8–9.
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To establish a claim for defamation, a plaintiff must prove the following
elements: “(1) a false and defamatory statement concerning plaintiff; (2)
unprivileged publication to third party; (3) fault amounting at least to negligence
on part of publisher; (4) and either actionability of statement irrespective of
special harm or existence of special harm caused by publication.”
Armistead v. Minor, 815 So. 2d 1189, 1193 (Miss. 2002) (emphasis added) (quoting Franklin v.
Thompson, 722 So. 2d 688, 692 (Miss. 1998)). Importantly, “[s]tatements made in connection
with judicial proceedings, including pleadings, are, if in any way relevant to the subject matter of
the action, absolutely privileged and immune from attack as defamation, even if such statements
are made maliciously and with knowledge of their falsehood.” McCorkle v. McCorkle, 811 So.
2d 258, 266 (Miss. Ct. App. 2001) (citing Gunter v. Reeves, 21 So. 2d 468, 470 (Miss. 1945));
see also Knotts by Knotts v. Hassell, 659 So. 2d 886, 890 (Miss. 1995) (“This Court has long
recognized the absolute privilege that is attached to relevant statements made during the course
of judicial proceedings.”).
For his part, Yarber does not seem to dispute the absolute privilege afforded to statements
made in judicial proceedings, instead characterizing the Counterclaim as including “defamatory
statements [Bracey made] about [Yarber] to Anna Wolfe of the Clarion Ledger Newspaper that
were printed in an article,” as well as statements made in a radio interview. Counter-Pl.’s Resp.
[17] at 3. But the Counterclaim does not reference these alleged statements, so as of now, they
are not part of Yarber’s defamation claim. As pleaded, the defamation claim fails to allege the
unprivileged publication of any false statement. The motion to dismiss is also granted as to the
defamation claim, which is dismissed without prejudice.

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IV.

Conclusion
The Court has considered all arguments. Those not specifically addressed would not

have changed the outcome. For the foregoing reasons, Counter-Defendant Kimberly V. Bracey’s
Motion to Dismiss [14] is granted. Yarber’s Counterclaim is dismissed. 1
SO ORDERED AND ADJUDGED this the 20th day of March, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

1

At this time, Yarber has not moved to amend the Counterclaim. Because the dismissal
of the defamation claim is without prejudice, Yarber may file a motion for leave to amend out of
time, attaching a proposed Amended Counterclaim, if he chooses. See Thomas v. Chevron
U.S.A., Inc., 832 F.3d 586, 590–91 (5th Cir. 2016) (explaining that a party seeking leave to
amend must provide “some specificity” as to the substance of the proposed amendment); L.U.
Civ. R. 15 (“If leave of court is required under Fed. R. Civ. P. 15, a proposed amended pleading
must be an exhibit to a motion for leave to file the pleading . . . .”).
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