Warnock Engineering, LLC et al v. Canton Municipal Utilities
ORDER granting in part and denying in part Defendant Canton Municipal Utilities' 206 Motion for Summary Judgment, and denying as moot Defendant Canton Municipal Utilities' 126 Motion to Dismiss. Signed by District Judge Halil S. Ozerden on December 21, 2018. (ENW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WARNOCK ENGINEERING, LLC,
and RUDOLPH M. WARNOCK, JR.
CANTON MUNICIPAL UTILITIES
Civil No. 3:17cv160-HSO-JCG
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANT CANTON MUNICIPAL
UTILITIES’  MOTION FOR SUMMARY JUDGMENT,
AND DENYING AS MOOT DEFENDANT CANTON MUNICIPAL
UTILITIES’  MOTION TO DISMISS
BEFORE THE COURT are Defendant Canton Municipal Utilities’ Motion
 to Dismiss and its Motion  for Summary Judgment, which both seek
dismissal of all claims advanced against it by Plaintiffs Warnock Engineering, LLC,
and Rudolph M. Warnock, Jr. After due consideration of the Motions , ,
related pleadings, the record, and relevant legal authority, the Court finds that
Defendant’s Motion  for Summary Judgment should be granted in part and
denied in part, and that Defendant’s Motion  to Dismiss should be denied as
Plaintiffs’ claims for copyright infringement, RICO violations, injunctive
relief, negligence, open account, misappropriation, and breach of contract should be
Plaintiffs’ claims for wrongful discharge and for retaliation in violation
of the First Amendment under 42 U.S.C. § 1983 will proceed.1
According to the Third Amended Complaint , which is the operative
pleading in this case, Plaintiff Warnock Engineering, LLC (“Warnock Engineering”),
is an engineering firm owned by Plaintiff Rudolph M. Warnock, Jr. (“Mr.
3d Am. Compl.  at 4. Warnock Engineering and Mr. Warnock
(collectively, “Plaintiffs” or “Warnock”) began providing engineering services to
Defendant Canton Municipal Utilities (“CMU”) in January 2016 and worked on a
number of projects for CMU.
Id. CMU is a public utility commission within the
City of Canton, Mississippi, and is managed by a five-member Board of
Commissioners. See Pls.’ Mem.  at 1.
Plaintiffs allege that Warnock Engineering entered into three written
contracts with CMU: (1) an agreement for “General Engineering Services,”
effective January 4, 2016 (the “General Engineering Services Agreement”); (2) an
agreement for “Sewer and Water System Improvements” entered into on November
8, 2016 (the “Sewer/Water Agreement”); and (3) an agreement for “Water & Sewer
Several Motions , , , , pertaining to expert witnesses are also pending
in this case. The Court has reviewed these Motions and related pleadings and finds that
they do not affect the Court’s resolution of the Motion for Summary Judgment. Therefore,
the Court need not resolve them before considering Defendant’s Motions to Dismiss and for
2 Some of the exhibits in this case refer to Warnock & Associates, which is not a party to
this case. According to Mr. Warnock, Warnock & Associates, LLC, was dissolved
November 8, 2017, after the events at issue in this case had occurred, and all of Warnock &
Associates’ assets were assigned to Warnock Engineering, LLC. Mr. Warnock’s Aff. [211-7]
System Facility Improvements” that was part of a “Five Point Plan” submitted by
Warnock Engineering, and which became effective October 7, 2016 (the “Five Point
Plan Agreement”). 3d Am. Compl.  at 4. Plaintiffs assert that the Board of
Commissioners of CMU (the “CMU Board”) terminated CMU’s arrangements with
all engineers other than Plaintiffs in August 2016, making Mr. Warnock the
exclusive engineer for CMU. Id. at 5. The Third Amended Complaint claims that
Cleveland Anderson (“Mr. Anderson”) was appointed to the CMU Board on June 7,
2016, and was later removed in June 2017. Id. at 4-5. At some point before he
was removed, Mr. Anderson became Chairman. Id. at 10.
Plaintiffs maintain that during a meeting with Mr. Warnock on September
18, 2016, Mr. Anderson offered to arrange the murder of a journalist in exchange for
$10,000.00. Later, on September 25, 2016, Mr. Anderson allegedly offered to
arrange the murder of the mayor of Madison, Mississippi, also for $10,000.00. Id.
at 4-5. Plaintiffs allege that prior to Mr. Warnock proposing the Five Point Plan
Agreement to the CMU Board, Mr. Anderson asked Mr. Warnock “if Anderson could
get paid for his vote to approve the agreement,” a request which Mr. Warnock
refused. Mr. Anderson allegedly subsequently requested a $200,000.00 kickback
for supporting the Five Point Plan Agreement in a meeting held on October 6, 2016.
Id. at 6. Mr. Warnock again refused. Id. Plaintiffs assert that they did not
adjust the price of the proposed $1,474,000.00 Five Point Plan Agreement, and that
it was approved by unanimous vote of the CMU Board at its meeting held on
October 7, 2016. Id. at 7.
In September 2016, the CMU Board unanimously voted to place Mr. Warnock
on the CMU Personnel Committee. Id. Mr. Anderson also served on this
committee. Id. According to Plaintiffs, Mr. Anderson was heavily involved in
restructuring the CMU, including adding new departments and new positions, and
“insisted that CMU hire his wife in a newly created General Counsel Department.”
Id. When outside counsel advised Mr. Anderson that hiring his wife at CMU
would be illegal, he withdrew her name from consideration for possible employment.
Mr. Warnock asserts that he expressed frustration to City of Canton officials
over Mr. Anderson’s attempts to solicit kickbacks and other improper benefits. Id.
at 8. Mr. Anderson allegedly retaliated by influencing other CMU Commissioners
and making motions to fire outside counsel and terminate Plaintiffs from all CMU
engineering and personnel work. Id. at 9. As a result, Mr. Warnock was
informed by letters dated December 29, 2016, and January 17, 2017, that the CMU
Board had voted to terminate its contracts with Warnock Engineering. Id. at 10.
Plaintiffs accuse Mr. Anderson, as Chairman of the CMU Board, of orchestrating
the termination, id. at 10, because Mr. Warnock had “refused to provide bribes and
kickbacks, and consent to the illegal and improper hiring of relatives and friends,
demanded by [Mr.] Anderson,” id. at 11.
According to the Third Amended Complaint, after terminating its contracts
with Plaintiffs, Mr. Anderson and CMU continued to use and distribute Plaintiffs’
work product, even though CMU had not paid invoices for work performed prior to,
and contract fees resulting from, the termination. Id.
Plaintiffs allege that CMU
has no license or other right to use Warnock Engineering’s copyrights, work
product, or other intellectual property, unless and until all outstanding amounts are
paid by CMU. Id. At the time CMU terminated the contracts, it purportedly
owed Warnock Engineering $2,369,477.28 for services performed prior to the
termination, exclusive of interest, costs, and attorneys’ fees, and also owed Warnock
Engineering fees in accordance with the termination provisions contained in the
Agreements. Id. at 11.
Plaintiffs filed the original Complaint  in this case on March 9, 2017, and
have amended their Complaint three times.
The Third Amended Complaint 
asserts claims against CMU for copyright infringement, vicarious and contributory
infringement, wrongful discharge, breach of contract, open account, negligence,
defamation, misappropriation of advertising/commercial materials, and violations of
the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§
1962(b), and the First Amendment under 42 U.S.C. § 1983. See 3d Am. Compl.
 at 19-23, 24-26.3 The Third Amended Complaint  seeks a declaratory
(i) until full and final payment is made, Warnock and Warnock
Engineering are entitled to the full protection and ownership of its work
The Third Amended Complaint  also advanced claims against Mr. Anderson alone
under RICO, 18 U.S.C. §§ 1962(c) and 1962(d), see 3d Am. Compl.  at 23-24, 26-27, and
the Mississippi Racketeer Influenced and Corrupt Organization Act (“Mississippi RICO”),
Mississippi Code §§ 97-43-1 through 11, see id. at 27-29, and for tortious interference with
contract, see id. at 32. However, the parties filed a Stipulation  of Dismissal of Mr.
Anderson on April 23, 2018, and Mr. Anderson is no longer a party.
product under United States copyright law, 17 U.S.C. § 101 et seq., and
(ii) to the extent Warnock and/or Warnock Engineering have licensed
any such work product to CMU, such licenses have terminated and
expired because of CMU’s failure to comply with their payment terms.
Id. at 23.
CMU has filed a Motion  to Dismiss, asking the Court to dismiss all of
Plaintiffs’ claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
CMU’s Mot.  at 1.4
Although Plaintiffs have opposed this Motion, see Pls.’
Resp.  & Mem. , they have dismissed their defamation claim, see Notice
 at 1.
CMU subsequently filed a Motion  for Summary Judgment pursuant to
Federal Rule of Civil Procedure 56, again seeking dismissal of Plaintiffs’ claims.
CMU’s Mot.  at 1-2.
CMU states that it filed this Motion “with the
understanding that the relief sought in its Motion to Dismiss the Third Amended
Complaint is not waived,” and it reserves the right to answer the Third Amended
Complaint and raise any affirmative or other defenses once the Motion to Dismiss is
resolved. Id. at 2.
Plaintiffs have filed a Response  and Memorandum  in opposition to
the Motion  for Summary Judgment conceding some, but not all, claims.
Plaintiffs maintain that the Motion  to Dismiss “is essentially mooted and
superseded by CMU’s Motion for Summary Judgment in that the parties have now
CMU also references Rule 12(b)(2) in its Motion, see Mot.  at 1, but this appears to be
a typographical error, as CMU raises no argument pertaining to Rule 12(b)(2). In a
previous Motion to Dismiss, CMU had argued that dismissal was required by Rule 12(b)(2)
for insufficient service of process, see Mem.  at 18-19, but it subsequently conceded that
service was effected on March 9, 2017, see Reply  at 14.
presented materials outside of the pleadings for consideration.”
Pls.’ Mem.  at
CMU’s request for hearing
CMU has requested that the Court conduct a hearing on its Motion  for
Summary Judgment. See CMU’s Mot.  at 1. The Court finds that a hearing
would not be helpful in resolving CMU’s Motion  and is not necessary.
Pursuant to Local Uniform Civil Rule 7(b)(3), the Court will deny CMU’s request for
a hearing on its Motion  for Summary Judgment.
CMU’s Motion  to Dismiss
CMU’s Motion to Dismiss, filed pursuant to Federal Rule of Civil Procedure
12(b)(1), was premised upon Plaintiffs’ purported lack of standing as to the
copyright claims and was otherwise based upon Rule 12(b)(6) for failure to state a
Plaintiffs have since conceded the copyright and several other claims.
for the remaining claims, the Motions to Dismiss and for Summary Judgment argue
substantially the same bases for dismissal.
For this reason, CMU’s Motion to
Dismiss is moot in light of the Court’s resolution of the Motion for Summary
CMU’s Motion  for Summary Judgment
Relevant legal standard
Under Federal Rule of Civil Procedure 56(a), a “court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
A fact is “material” if it is one that might affect the outcome of the suit
under governing law, and a dispute is “genuine” if a jury could return a verdict for
the non-movant based upon the evidence in the record. Renwick v. PNK Lake
Charles, L.L.C., 901 F.3d 605, 611 (5th Cir. 2018).
If the party seeking summary judgment shows the non-movant’s case lacks
support, the non-movant is tasked with coming forward with “specific facts”
showing a genuine factual issue for trial. Id. A court considering a summary
judgment motion must “view the evidence in the light most favorable to the nonmoving party, drawing all justifiable inferences in the non-movant’s favor.” Id.
(quotation omitted). However, if a non-movant’s evidence is “merely colorable” or
“not significantly probative,” summary judgment remains appropriate. Certain
Underwriters at Lloyd’s of London v. Lowen Valley View, L.L.C., 892 F.3d 167, 170
(5th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
Claims conceded by Plaintiffs
On March 27, 2018, Plaintiffs filed a Notice  of Dismissal of their
defamation claim pursuant to Federal Rules of Civil Procedure 41(a)(1)(A)(i) and
15(a)(2). Because no Defendant had filed an answer or motion for summary
judgment at that time, the defamation claim was voluntarily dismissed.
In response to CMU’s Motion  for Summary Judgment, Plaintiffs have
conceded several other claims, including their claims for copyright infringement,
RICO violations, injunctive relief, negligence, open account, and misappropriation.
See Pls.’ Mem.  at 4.5
CMU’s Motion  for Summary Judgment will be
granted as unopposed as to these claims, which will be dismissed.
This leaves for
the Court’s resolution Plaintiffs’ claims under state law for breach of contract and
wrongful discharge, and under 42 U.S.C. § 1983 for violation of the First
Plaintiffs’ breach of contract claims under state law
The parties’ arguments
Plaintiffs assert that CMU breached three contracts with Warnock
Engineering for engineering services: (1) the General Engineering Services
Agreement; (2) the Sewer/Water Agreement; and (3) the Five Point Plan
3d Am. Compl.  at 33.
CMU argues that no valid and binding contracts existed between it and
Plaintiffs. According to CMU, “[t]he alleged contracts were not attached to the
board minutes and . . . were kept in a file that is separate and apart from the
minutes. Additionally, there were no terms mentioned in the board minutes.
Consequently, a contract or agreement between CMU and Warnock Engineering
does not exist.”
CMU’s Mem.  at 27. CMU further posits that Plaintiffs
cannot establish a breach of these purported contracts because the invoices that
were submitted to CMU were for work performed by a different legal entity,
In identifying claims that they do not contest, Plaintiffs do not specifically mention their
claim for declaratory judgment. See Pls.’ Mem.  at 4. However, the declaratory
judgment claim relates to Plaintiffs’ copyright infringement claim, and Plaintiffs appear to
concede all of their copyright claims. See id. Plaintiffs also do not address the declaratory
judgment claim in their Memorandum in support of their remaining claims. As such, the
Court concludes that Plaintiffs intended to dismiss the declaratory judgment claim.
Warnock & Associates LLC, as opposed to Warnock Engineering, the Plaintiff in
this case. Id. at 28.
Plaintiffs dispute CMU’s assertion that the three contracts do not sufficiently
appear in CMU’s minutes, see Pl.’s Mem.  at 18, 21-23, and insist that they are
entitled to recovery for their services under Mississippi Code § 31-7-57(2), id. at 1821.
Plaintiffs additionally argue that CMU is equitably estopped from denying the
contracts. Id. at 23-25.
The validity of contracts with public boards
Under Mississippi law, a claim for breach of contract has two elements: “(1)
the existence of a valid and binding contract, and (2) a showing that the defendant
has broken, or breached it.” Maness v. K & A Enterprises of Mississippi, LLC, 250
So. 3d 402, 414 (Miss. 2018), reh’g denied (Aug. 9, 2018) (quotation omitted).
In Mississippi, “[a] public board ‘speaks and acts only through its minutes.’”
Kennedy v. Claiborne Cty. by & through its Bd. of Supervisors, 233 So. 3d 825, 829
(Miss. Ct. App. 2017), reh’g denied (Aug. 15, 2017), cert. denied, 230 So. 3d 1023
(Miss. 2017) (quoting Wellness, Inc. v. Pearl River Cty. Hosp., 178 So. 3d 1287, 1290
“The minutes are the sole and exclusive evidence of what the board
did and must be the repository and the evidence of their official acts.” Id.
Contracts awarded by a board or commission consisting of three or more
members such as CMU “must be determined or decided upon only in or at a lawfully
convened session, and the proceedings must be entered upon the minutes, of the
board or commission.” Lange v. City of Batesville, 972 So. 2d 11, 18-19 (Miss. Ct.
App. 2008) (quoting Thompson v. Jones Cty. Cmty. Hosp., 352 So. 2d 795, 796 (Miss.
The reasons for the requirements aforesaid are: (1) That when
authority is conferred upon a board, the public is entitled to the
judgment of the board after an examination of a proposal and a
discussion of it among the members to the end that the result reached
will represent the wisdom of the majority rather than the opinion or
preference of some individual member; and (2) that the decision or order
when made shall not be subject to the uncertainties of the recollection of
individual witnesses of what transpired, but that the action taken will be
evidenced by a written memorial entered upon the minutes at the time,
and to which all the public may have access to see what was actually
Id. at 19 (emphasis in original).
Under Mississippi law, it is the responsibility of the entity contracting with a
public board, and not of the board itself, to ensure the contract is legal and properly
recorded in the minutes. Wellness, Inc., 178 So. 3d at 1291.
“[P]lacing a contract
in a book other than the minute book or in a person’s office is insufficient to meet
the minutes requirement.” Dhealthcare Consultants, Inc. v. Jefferson Cty. Hosp.,
232 So. 3d 192, 194 (Miss. Ct. App. 2017), reh’g denied (Aug. 29, 2017), cert. denied,
229 So. 3d 714 (Miss. 2017).
Moreover, “simply placing a contract . . . in the side
pocket of the minute book at some later date is insufficient to meet the minutes
requirement,” as actions taken by a public board must be evidenced by a written
memorial entered upon its minutes at the time. Kennedy, 233 So. 3d at 829
The entirety of a contract, however, need not be reproduced within a board’s
minutes. Lange, 972 So. 2d at 19.
“Plans, specifications and other papers
specifically referred to by the board in its minutes have been held to constitute a
part of the contract,” and if enough terms and conditions of a contract are contained
in the minutes to determine the liability of the contracting parties without resorting
to other evidence, a contract may be enforced. Id.
“However, the individual or
group contracting with a board carries the responsibility to ensure the contract is
properly recorded.” Id.
The three contracts in dispute
General Engineering Services Agreement
CMU has attached as Exhibit “C” [206-3] to its Motion for Summary
Judgment what it claims was the General Engineering Services Agreement.
According to the text of that Exhibit, the Agreement became effective January 4,
It was executed by Charles Weems, CMU’s Chairman, purportedly on behalf
of CMU, and by Mr. Warnock for Warnock Engineering, and then notarized.
“C” [206-3] at 1, 15. Warnock has submitted what appears to be a different version
of this General Engineering Services Agreement as Exhibit “J” [211-10] to its
Response , which purportedly became effective September 21, 2016.
this version also appears to be signed by both Mr. Weems and Mr. Warnock, it is
attested to by a different individual. See Ex. “J” [211-10] at 15.
There is no
indication what date either of these General Engineering Services Agreements were
actually signed. See id.; Ex. “C” [206-3] at 15.
During Mr. Warnock’s deposition, he testified he could not say with any
certainty on what date Mr. Weems actually signed the General Engineering
Services Agreement, and Mr. Warnock has acknowledged that he did not know
whether Mr. Weems was authorized by the CMU Board of Commissioners to sign
this Agreement. See Mr. Warnock’s Dep. [206-1] at 37.
The parties have attached
minutes [206-7], [206-9], [211-1] from various CMU Board meetings to support their
According to the minutes for the August 16, 2016, CMU Board meeting,
supplied as Exhibit “A” to Plaintiffs’ Response , Mr. Anderson moved to hire
Mr. Warnock as City Engineer
to take over engineering services from Waggoner Engineering and to
authorize Mr. Warnock to negotiate a transition agreement for all
engineering services from Waggoner to Mr. Warnock and to bring back
the transition agreement within the next 30 days for our signature.
Ex. “A” [211-1] at 25.
The motion carried. Id. These minutes do not mention the
approval of any General Engineering Services Agreement with either Mr. Warnock
or Warnock Engineering.
The Court also notes that the copy of these minutes is
Mr. Warnock has submitted an Affidavit [211-7] in which he avers that “[a]t a
CMU Board Meeting on September 13, 2016, Warnock’s General Services
Agreement signed by Rudy Warnock was handed to members of the CMU Board of
Commissioners and other CMU officials present.” Mr. Warnock’s Aff. [211-7] at 1.
According to the minutes from that meeting, a representative from Warnock &
Associates “handed out to all the Board members a list of other items needed to
complete the transition” from Waggoner Engineering to Warnock & Associates.
Ex. “A” [211-1] at 27. There is no mention of a General Engineering Services
Agreement in these minutes. See id. at 27-29.
The minutes reflect that during the September 20, 2016, meeting, the Board
executed contracts with its attorney and “Rudy Warnock & Associates to spread
across the minutes.” Id. at 42. No specific information is provided about these
contracts however, and they do not appear in the minutes. See id. In short, it is
not clear what contract was executed with Warnock.
During the November 29, 2016, meeting, “Mr. Warnock gave [the Board
Attorney] a General Services Contract to review,” id. at 105, but that contract does
not appear in the minutes, and again, no specific terms are mentioned, see id. The
CMU Board also “voted to approve and pay the outstanding Warnock invoices” at
that meeting. Id.
At the December 6, 2016, meeting, the CMU Board’s general counsel
recommended approval of “Warnock’s Agreement” with modifications, id. at 110,
and “the Board approved Warnock’s Agreement with necessary modifications,” id.
A copy of the agreement was not attached, and no additional information appears in
the minutes. See id. The minutes do not indicate to which agreement they refer,
nor do they reveal what the terms of this agreement were.6
The minutes of the December 22, 2016, CMU Board meeting refer to the
The minutes submitted to the Court for subsequent meetings are devoid of any indication
that the December 6, 2016, minutes were ever approved by the CMU Board. See Ex. “A”
[211-1] at 119-20 (December 20, 2016, meeting minutes); 129-30 (December 22, 2016,
meeting minutes); 131-32 (December 29, 2016, meeting minutes).
existence of a “General Services Contract” with Mr. Warnock and state that it
“contains a clause which would amount to an illegal gift which violated Mississippi
Constitution Article 4, Section 66. (See Warnock contract attached.).” Id. at 130.
Despite the parenthetical directing the reader to see the attached contract, no
contract was attached to the minutes submitted to the Court. At that same
meeting, the CMU Board voted “to terminate any and all contracts Warnock &
Associates have with CMU . . . .” Id.7
The parties have submitted excerpts of the deposition of Tammy Moore (“Ms.
Moore”), who was an assistant to the CMU general manager. See Ms. Moore’s Dep.
[206-5] at 9; Ms. Moore’s Dep. [211-13] at 11.
Ms. Moore was in charge of keeping
the minutes for the Board from June 21, 2016, until January 17, 2017. See Ms.
Moore’s Dep. [206-5] at 9, 12; Ms. Moore’s Dep. [211-13] at 11. Ms. Moore testified
that she first saw the General Engineering Services Agreement on December 23 or
24, 2016, when the former Board Attorney brought the Agreement to her office and
instructed her to attach the Agreement to the Board minutes. Ms. Moore’s Dep.
[206-5] at 22-23.
Ms. Moore did not do so. Id. at 24.
Instead, she placed the
Agreement in a file folder inside a fireproof vault. Id.
Mr. Warnock claims in his Affidavit [211-7] that “[a]t a CMU Board Meeting
on November 8, 2016, Warnock’s Sewer & Water System Improvements Agreement
It is unclear from the current record whether the December 22, 2016, meeting minutes
were ever approved by the CMU Board. See Ex. “A” [211-1] at 131-32 (December 29, 2016,
signed by Rudy Warnock was handed to members of the CMU Board of
Commissioners and other CMU officials present.” Mr. Warnock’s Aff. [211-7] at 2.
According to the November 8, 2016, meeting minutes,
Warnock presented an agreement for “sewer and water system
improvements,” including design engineering and construction
engineering, for approval. Upon a motion by Commissioner Weems
and a second by Commissioner Anderson, with all present voting “aye,”
the Board approved the contract from Warnock & Associates.
Ex. “A” [211-1] at 87.
This Agreement was not attached to the minutes, nor do any
terms or other details pertaining to the Agreement appear in the minutes. See id.
Plaintiffs have attached as Exhibit “B” to the Third Amended Complaint
 what they maintain is the Sewer/Water Agreement [118-2] approved by the
This Agreement became effective November 8, 2016, and is between
CMU and Warnock Engineering, LLC. See Ex. “B” [118-2] at 3.
It was executed
by Charles Weems as Board Chairman for CMU on an unspecified date, and by Mr.
Warnock on behalf of Warnock Engineering on November 8, 2016. Id. at 11. Ms.
Moore testified that she had seen a copy of the Sewer/Water Agreement in
December 2016 when she found it in some boxes in the office of the former general
manager. Ms. Moore’s Dep. [206-5] at 47-48; Ms. Moore’s Dep. [211-13] at 31.
Five Point Plan Agreement
The minutes of the September 20, 2016, meeting reflect that the Board
approved Warnock & Associates’ five-point plan, which consisted of:
Ex. “A” [211-1] at 42.
Mr. Warnock avers in his Affidavit [211-7] that “[a]t a CMU Board Meeting
on October 7, 2016, Warnock’s Water & Sewer Facility Improvements as Part of the
‘Five Point Plan’ Agreement signed by Rudy Warnock was handed to members of
the CMU Board of Commissioners and other CMU officials present.” Mr.
Warnock’s Aff. [211-7] at 2. The minutes of the October 7, 2016, meeting reflect
Mr. Warnock presented a professional services agreement between
Warnock and CMU to implement Warnock’s five-point plan. Upon a
motion by Commissioner Anderson and a second by Commissioner
Weems, with all present voting “aye,” the Board accepted the agreement
between Warnock and CMU.
Id. at 63. Mr. Warnock acknowledged in his deposition that anyone who reviewed
the October 7, 2016, minutes would not know what the Five Point Plan Agreement
was. Mr. Warnock’s Dep. [206-1] at 328.
Plaintiffs claim that Exhibit “C” to their Third Amended Complaint  is
the Five Point Plan Agreement itself [118-3]. This purported Agreement was
entered into by CMU and Warnock Engineering, LLC, with an effective date of
October 7, 2016. See Ex. “C” [118-3] at 3. It bears the signatures of Charles
Weems as General Manager of CMU and of Mr. Warnock on behalf of Warnock
Engineering. Id. at 11. Mr. Weems’ signature is dated December 15, 2016, but
Mr. Warnock’s signature is not dated. See id.
The validity of the contracts
Based upon the summary judgment record before the Court, there does not
appear to be, nor can there be, any serious dispute that none of the three contracts
at issue appear in the CMU Board’s minute book, nor were the terms of any of these
agreements recited in the minutes.
Mr. Warnock maintains that he repeatedly
requested signed copies of the Agreements and was told by the CMU Board
Attorney that they were in the minutes, and the attorney later provided him with
an affidavit to that effect. Mr. Warnock’s Aff. [211-7] at 2. Plaintiffs have
submitted the Board Attorney’s Affidavit [211-9], which avers that the Five Point
Plan Agreement was approved by the Board and that the attorney provided
executed copies of the contracts to Ms. Moore. Ex. “I” [211-9] at 1-2. According to
the Board Attorney, he instructed the employee to attach the contracts to the Board
minutes corresponding to the meeting at which each contract was approved. Id. at
2. However, it is not clear from this Affidavit when this conversation with Ms.
Moore occurred, except that it purportedly took place while he was “still the Board
Attorney for the Board.” Id. This is insufficient competent summary judgment
evidence from which one can conclude that these contracts were ever actually
attached to the minutes.
Plaintiffs maintain that the “sufficiency of whatever may be in the minutes is
a question of fact.” Pls.’ Mem.  at 22.
does not present a jury question.
However, the record before the Court
It clear that the contracts were not attached to
the minutes, and no terms and conditions of any of the three contracts appear
anywhere in the minutes.
It would be impossible for the public to “have access to
see what was actually done,” Lange, 972 So. 2d at 19, or for a person to determine
the liabilities and obligations of the contracting parties.
This is insufficient under
Mississippi law. See, e.g., Dhealthcare Consultants, Inc., 232 So. 3d at 194.
Plaintiffs argue that the CMU Board approved dockets of claims and paid
invoices pertaining to work they performed under these Agreements. See, e.g., Pls.’
Mem.  at 8-11. The Court is not persuaded that CMU’s payment for certain
services rendered necessarily means that the three specific agreements at issue in
Plaintiffs’ breach of contract claims were legally and properly entered into by the
CMU Board. Indeed, it appears that some, if not all, of these fees were paid to
Warnock & Associates, a separate entity that is not a party to this case.8
CMU has demonstrated that it is entitled to summary judgment on Plaintiffs’
breach of contract claims because there can be no genuine dispute of material fact
that the three contracts upon which Plaintiffs ground their claims were not properly
entered into and are not legally enforceable under Mississippi law. Nor have
Plaintiffs come forward with sufficient competent summary judgment evidence to
As the Court noted earlier, Plaintiff has presented an Affidavit from Mr. Warnock
averring that Warnock & Associates, LLC, was dissolved November 8, 2017, and that all of
its assets were assigned to Warnock Engineering, LLC. See Mr. Warnock’s Aff. [211-7] at
2. Plaintiff, however, has not submitted a copy of the actual assignment, has not disclosed
what specific assets pertaining to CMU were allegedly assigned to Warnock Engineering,
and has not cited controlling authority that would permit such an assignment under
Mississippi law. See, e.g., MS AG Op. Brown, 2003 WL 21962325, at *1 (Miss. A.G. July
25, 2003) (opining that, while Mississippi Code § 21-39-13(4) permits the transfer of a claim
against a municipality to a third party by assignment, a transfer or assignment of
contractual duties to a third party without the knowledge or acquiescence of the board of
aldermen would constitute a unilateral amendment to the contract, and such an
amendment must appear in the official minutes of the meetings of the governing authority).
create a triable fact question as to the enforceability of the purported Agreements or
what the terms of any Agreement were. CMU’s Motion for Summary Judgment
should be granted as to Plaintiffs’ breach of contract claims.
Plaintiffs’ alternative theory of recovery under Mississippi Code § 31-757(2)
As an alternative theory in support of their breach of contract claims,
Plaintiffs rely upon Mississippi Code § 31-7-57(2), which provides as follows:
No individual member, officer, employee or agent of any agency or board
of a governing authority shall let contracts or purchase commodities or
equipment except in the manner provided by law, including the
provisions of Section 25-9-120(3), Mississippi Code of 1972, relating to
personal and professional service contracts by state agencies; nor shall
any such agency or board of a governing authority ratify any such
contract or purchase made by any individual member, officer, employee
or agent thereof, or pay for the same out of public funds unless such
contract or purchase was made in the manner provided by law; provided,
however, that any vendor who, in good faith, delivers commodities or
printing or performs any services under a contract to or for the agency or
governing authority, shall be entitled to recover the fair market value of
such commodities, printing or services, notwithstanding some error or
failure by the agency or governing authority to follow the law, if the
contract was for an object authorized by law and the vendor had no
control of, participation in, or actual knowledge of the error or failure by
the agency or governing authority.
Miss. Code Ann. § 31-7-57(2) (emphasis added).
The Court questions whether this statute would even apply to Plaintiffs, and
they have not attempted to explain how they would qualify as a “vendor” within the
meaning of this provision. See id. Even if Plaintiffs were able to demonstrate
they were entitled to some recovery under this statute, they have not shown that
this provision precludes summary judgment on their breach of contract claims.
This statute sounds in quantum meruit recovery, and while Plaintiffs
reference quantum meruit in their Memorandum  in opposition to summary
judgment, see Mem.  at 16, they pleaded no such claim in their Third Amended
Plaintiffs did not cite Mississippi Code § 31-7-57(2) in their Third
Amended Complaint and have never sought leave to amend to include such a
In the Court’s March 9, 2018, Order  granting Plaintiffs leave to file
the Third Amended Complaint, it cautioned that “no further amendments to
their pleadings will be permitted absent good cause shown.”
2 (emphasis in original).
Order  at
Plaintiffs have not shown any good cause to allow a
further amendment, and this alternative claim for relief is not properly before the
Plaintiffs’ alternative equitable estoppel theory
Relying upon Community Extended Care Centers, Inc. v. Board of Supervisors
for Humphreys County, 756 So. 2d 798 (Miss. Ct. App. 1999), Plaintiffs attempt to
make an end-run around the minutes issue and advance an equitable estoppel
argument to sustain their breach of contract claims. See Pls.’ Mem.  at 23-25.
Equitable estoppel may only be enforced against the State or its counties under
proper circumstances, where the acts of their officers were authorized. Bd. of
Educ. of Lamar Cty. v. Hudson, 585 So. 2d 683, 688 (Miss. 1991).
there is no estoppel against a public body unless a valid contract is duly entered
See L.U. Civ. R. 7(b) (“[a]ny written communication with the court that is intended to be
an application for relief or other action by the court must be presented by a motion in the
form prescribed by this Rule.”); L.U. Civ. R. 7(b)(2) (providing that, if leave of Court is
required under Federal Rule of Civil Procedure 15, a proposed amended pleading must be
an exhibit to a motion for leave to file the pleading).
upon the minutes, which binds that public body.” Dhealthcare Consultants, Inc.,
232 So. 3d at 195.
Without a writing upon the minutes, there is no valid contract
to enforce. Id.
The Mississippi Court of Appeals case upon which Plaintiffs rely is
distinguishable. See Cmty. Extended Care Ctrs., Inc., 756 So. 2d at 798.
in that case was a lease contract.
The county’s board of supervisors entered a
resolution in the minutes authorizing the board president to execute the lease,
which was then filed in the chancery clerk’s office. Id. at 801. “What the board
had approved was immediately viewable by the public and was in no way uncertain
Id. at 802.
According to the Mississippi Court of Appeals, the board had affirmatively
acknowledged the existence of the lease contract for more than 13 years by
accepting the lessee’s monthly rent payments, assessing and collecting taxes under
the lease contract, and agreeing to two amendments to the lease contract. Id. at
The Court of Appeals held that the entry of the unanimous resolution
authorizing the Board president “to execute in duplicate the original of the lease,”
the filing of the lease contract in the land records of the chancery clerk’s office, the
Board’s subsequent approval of the amendment to the lease contract, the filing of
the amendment in the land records of the chancery clerk’s office, and the entry of
the amendment in the Board minutes, “were sufficient acts to ensure that no
individual member of the Board had bound the Board without the benefit of the
consent of the Board as a whole by executing the lease contract . . . .” Id. at 803-04.
The Court of Appeals recognized, however, that “no estoppel may be enforced
against the state or its counties where the acts of their officers were unauthorized.”
Id. at 804 (quotation omitted).
Here, Plaintiffs have not presented competent summary judgment evidence
to demonstrate that Mr. Weems’ purported actions of signing the three particular
contracts Warnock has submitted as exhibits were authorized by the CMU Board,
nor have they shown that these contracts appear anywhere in the minutes or in any
other public records. Community Extended Care Centers is distinguishable, and
Plaintiffs’ equitable estoppel argument is unavailing.
Plaintiffs’ wrongful discharge claim
Plaintiffs advance a state law claim against CMU for wrongful discharge.
3d Am. Compl.  at 31-32. Specifically, they assert that as a direct and
proximate result of Mr. Warnock’s refusal to participate in illegal activity, and due
to his reporting of the same to authorities, Mr. Anderson caused CMU to terminate
Mr. Warnock from his position as CMU Engineer and to terminate Plaintiffs’
contracts with CMU.
Id. at 31.
CMU takes the position that it is entitled to immunity on this claim and that
it is otherwise time-barred under the Mississippi Tort Claims Act, Mississippi Code
§ 11-46-1, et seq. (“MTCA”).
CMU’s Mem.  at 26.
In addition, CMU contends
that Mr. Warnock, as a former at-will employee, cannot maintain a wrongful
discharge claim, and that the alleged termination of Warnock Engineering is not
cognizable as a wrongful discharge claim. Id. at 24-25.
Plaintiffs counter that a
public policy exception to the employment-at-will doctrine applies in this case
because Warnock was purportedly fired for “refusing to engage in and/or reporting
an unlawful act . . . .” Pls.’ Mem.  at 30 (citing McArn v. Allied BruceTerminix Co., 626 So. 2d 603, 607 (Miss. 1993)).
The Mississippi Supreme Court
has modified the employment at will doctrine by carving out a narrow
public policy exception which allows an employee at-will to sue for
wrongful discharge where the employee is terminated because of (1)
refusal to participate in illegal activity or (2) reporting the illegal
activity of his employer to the employer or anyone else.
Harris v. Miss. Valley State Univ., 873 So. 2d 970, 986 (Miss. 2004).
CMU did not
address Plaintiffs’ arguments with respect to the public-policy exception in its
Rebuttal , nor has it adequately supported its arguments or cited relevant
legal authority in its original Memorandum  sufficient to carry its initial
burden on its immunity and statute of limitations defenses.10
With respect to
Warnock Engineering’s claim, CMU offers only a conclusory assertion that it is not
cognizable and cites no legal authority to support its position. See Mem.  at
While CMU’s argument as to Warnock Engineering carries logical appeal,
CMU has not supported its argument with any legal authority and has not carried
its initial summary judgment burden.
In sum, CMU has not shown that it is entitled to judgment as a matter of law
on Plaintiffs’ wrongful discharge claims. Because CMU did not carry its initial
CMU did not make any substantive arguments pertaining to the wrongful discharge
claim in its Rebuttal .
summary judgment burden on these claims, the Court will deny this portion of the
Plaintiffs’ First Amendment claim
Plaintiffs assert a First Amendment claim under 42 U.S.C. § 1983, alleging
that CMU deprived Mr. Warnock of “his rights of freedom of speech and freedom to
petition for redress of grievances in violation of the First Amendment of the United
States Constitution by terminating his contract with CMU as retaliation for
discussing matters of public concern.” 3d Am. Compl.  at 30.
Amended Complaint alleges that these matters of public concern included Mr.
Anderson’s offer to Mr. Warnock to arrange a murder for hire, his solicitation of a
bribe and kickback, and his demands that Mr. Warnock support the hiring of Mr.
Anderson’s wife and “other unqualified family members.” Id. Plaintiffs assert
that after Mr. Warnock refused to participate in these activities, he reported them
to City of Canton officials via text message on December 17, 2016, and discussed
them with an investigator with the Madison County District Attorney’s office. Id.
Mr. Anderson and the other CMU Commissioners then allegedly conspired to
retaliate against Mr. Warnock by terminating his contracts with CMU. Id.
First Amendment retaliation
“The First Amendment’s guarantee of freedom of speech protects government
employees from termination because of their speech on matters of public concern.”
Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 675 (1996)
(emphasis in original).
“The First Amendment limits the ability of a public
employer to leverage the employment relationship to restrict, incidentally or
intentionally, the liberties employees enjoy in their capacities as private citizens.”
Garcetti v. Ceballos, 547 U.S. 410, 419 (2006).
Thus, “[s]o long as employees are
speaking as citizens about matters of public concern, they must face only those
speech restrictions that are necessary for their employers to operate efficiently and
“To state a claim for retaliation in violation of the First Amendment, public
employees . . . must allege that their employer interfered with their right to speak
as a citizen on a matter of public concern.” Heffernan v. City of Paterson, N.J., 136
S. Ct. 1412, 1420 (2016).
A plaintiff generally establishes a First Amendment
retaliation claim by showing that: “(1) he suffered an adverse employment action;
(2) he spoke as a citizen on a matter of public concern; (3) his interest in the speech
outweighs the government’s interest in the efficient provision of public services; and
(4) the speech precipitated the adverse employment action.” Moss v. Harris Cty.
Constable Precinct One, 851 F.3d 413, 420-21 (5th Cir. 2017) (quotation omitted).
A First Amendment retaliation claim by a contractor against a governmental entity
based upon the contractor’s speech is analyzed using the same framework as that
utilized for claims by public employees. Culbertson v. Lykos, 790 F.3d 608, 618
(5th Cir. 2015) (citing Umbehr, 518 U.S. at 684-85).
The parties’ arguments
CMU’s Memorandum  in support of its Motion for Summary Judgment
says very little about Plaintiffs’ § 1983 claims.
CMU argues without citation to any
legal authority or evidence that termination of Mr. Warnock’s contracts did not rise
to the level of an abridgment or deprivation of Mr. Warnock’s rights, and that the
allegation that CMU retaliated against Mr. Warnock for “discussing matters of
public concern” is vague and unsupported. CMU’s Mem.  at 24.
makes a conclusory assertion that it enjoys immunity from this claim and that it is
Plaintiffs respond that “Warnock’s actions in objecting to and voicing
concerns about Anderson’s illegal and improper conduct clearly qualifies [sic] as
Pls.’ Mem.  at 26. According to Plaintiffs, “[w]hether
Warnock’s protected activity was a motivating factor in CMU’s termination decision
presents a genuine dispute of fact.” Id. Plaintiffs also state that CMU does not
enjoy immunity from § 1983 liability, and that its liability should be analyzed under
the United States Supreme Court’s decision in Monell v. New York City Department
of Social Services, 436 U.S. 658 (1978).
Id. at 28.
CMU’s Rebuttal counters that the matters on which Mr. Warnock spoke were
not ones of public concern and instead constituted his own attempt to “take down
Anderson before Anderson took Warnock down.”
CMU’s Rebuttal  at 11.
CMU contends that Mr. Warnock was not employed by CMU, and that the alleged
contracts between CMU and Mr. Warnock’s engineering firm(s) were void under
Mississippi law. Id. at 3.
CMU asserts that it had “multiple reasons for
terminating Plaintiffs’ void contracts – any one of which was sufficient to justify
CMU’s termination of Plaintiffs’ void contracts.” Id. at 5.
The vast majority of CMU’s arguments with respect to the § 1983 claim were
improperly raised for the first time in its Rebuttal . Compare CMU’s Mem.
 at 23-24, with CMU’s Rebuttal  at 2-13; see also, e.g., United States v.
Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005) (“Arguments raised for the first time
in a reply brief . . . are waived.”).
As to this claim, CMU’s original Memorandum
 contained only conclusory assertions, unsupported by citation to evidence, as
CMU is not liable for Plaintiff Warnock’s claims made pursuant
to 42 U.S.C. Section 1983 as Warnock is unable to support how
Warnock’s First Amendment rights were deprived by CMU’s
termination of the alleged contracts with Warnock Engineering . . . .
. . . Termination of Warnock’s purported contracts, even under the
facts espoused by Warnock, does not show an abridgment or deprivation
of Warnock’s rights, and Warnock merely posits his conclusion without
any factual support related to CMU. Warnock’s conjecture that CMU
retaliated for “discussing matters of public concern” is vague and
unsupported, and cannot stand to support a claim under 42 U.S.C. §
Despite the complete lack of specificity and clarity of Plaintiffs’
claim, CMU would also maintain that it enjoys immunity from such
charge and simultaneously maintains that the MTCA would act to timebar this action. Consequently, CMU is entitled to summary judgment.
CMU’s Mem.  at 23-24.
The Court will not consider additional arguments
raised for the first time in the Rebuttal , which Plaintiffs have not had the
opportunity to address.
Moreover, these arguments are not adequately briefed.
CMU’s immunity argument
CMU makes a conclusory assertion that “it enjoys immunity” from Plaintiffs’
§ 1983 claim, without any elaboration as to what type of immunity might apply to it
under these circumstances.
CMU’s Mem.  at 24.
CMU has not carried its
initial burden of showing that it is entitled to summary judgment on this basis.
CMU’s statute of limitations defense
CMU posits that Plaintiffs’ § 1983 claim is time-barred under the MTCA.
CMU’s Mem.  at 24.
“Because no specified federal statute of limitations exists
for § 1983 suits, federal courts borrow the forum state’s general or residual
personal-injury limitations period, . . . which in Mississippi is three years.”
Edmonds v. Oktibbeha Cty., Miss., 675 F.3d 911, 916 (5th Cir. 2012) (citing Owens
v. Okure, 488 U.S. 235, 249-50 (1989); Miss. Code Ann. § 15-1-49).
The parties do
not appear to dispute that the actions which are the subject of this case occurred in
2016, less than three years ago. See, e.g., CMU’s Mem.  at 3; 3d Am. Compl.
 at 5.
CMU has not shown that Plaintiff’s First Amendment retaliation claim
With respect to the merits of Plaintiffs’ § 1983 claim, CMU’s original
Memorandum  in support of its Motion offered only conclusory assertions,
unsupported by citation to evidence or pertinent legal authority supporting the
specific arguments raised. See CMU’s Mem.  at 23-24. CMU did not carry its
initial burden of showing that there is no genuine dispute of material fact or that it
is entitled to judgment as a matter of law on this claim.
Because CMU has not
carried its initial burden on this claim, summary judgment should be denied.
Plaintiffs’ due process assertions
In response to CMU’s request for summary judgment, Plaintiffs assert that
CMU’s purported failure to provide any notice or opportunity to be heard prior to
any termination constituted a separate, actionable due process violation.
Mem.  at 27. However, Plaintiffs did not raise any due process claim in their
Third Amended Complaint.11
If a party cannot amend its pleading as a matter of course, it may amend the
pleading “only with the opposing party’s written consent or the court’s leave.”
R. Civ. P. 15(a)(2). In this case, Plaintiffs have not requested leave to amend their
Third Amended Complaint, nor have they obtained CMU’s written consent to such
The Court’s March 9, 2018, Order , which granted Plaintiffs leave to file
their Third Amended Complaint, cautioned Plaintiffs that “no further
amendments to their pleadings will be permitted absent good cause
shown.” Order  at 2 (emphasis in original).
such good cause.
Plaintiffs have not shown any
Any claim for an alleged due process violation is not properly
before the Court.
To the extent the Court has not addressed any of the parties’ arguments, it
has considered them and determined that they would not alter the result.
Motion  for Summary Judgment will be granted in part and denied in part, and
Plaintiffs’ claims against CMU for copyright infringement, RICO violations,
It appears that Plaintiffs first alleged a due process violation under 42 U.S.C. § 1983 in
their Memorandum  in opposition to CMU’s Motion  to Dismiss. See Pls.’ Mem.
 at 20. However, they never raised such a claim in their original Complaint , First
Amended Complaint , Second Amended Complaint , or Third Amended Complaint
injunctive relief, negligence, open account, misappropriation, declaratory judgment,
and breach of contract will be dismissed.12
Plaintiffs’ claims for wrongful discharge
and for First Amendment retaliation under 42 U.S.C. § 1983 will proceed. CMU’s
Motion  to Dismiss is moot.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Defendant
Canton Municipal Utilities’ request for a hearing on its Motion  for Summary
Judgment is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Defendant Canton
Municipal Utilities’ Motion  for Summary Judgment is GRANTED IN PART
and DENIED IN PART, and Plaintiffs’ claims against Defendant Canton
Municipal Utilities for copyright infringement, RICO violations, injunctive relief,
negligence, open account, misappropriation, declaratory judgment, and breach of
contract are DISMISSED WITH PREJUDICE.
Plaintiffs’ claims for wrongful
discharge and for retaliation in violation of the First Amendment under 42 U.S.C. §
1983 will proceed.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Motion  to
Dismiss filed by Defendant Canton Municipal Utilities is DENIED AS MOOT.
SO ORDERED AND ADJUDGED, this the 21st day of December, 2018.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
As noted earlier, Plaintiffs previously dismissed their defamation claim pursuant to
Federal Rule of Civil Procedure 41(a)(1)(A)(i). See Notice  at 1.
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