Clinton et al v. Johnson et al

Filing 25

ORDER granting in part and denying in part 3 Motion to Dismiss; granting 16 Motion to Dismiss Signed by Honorable David C. Bramlette, III on 3/6/2013 (PL)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
J. PAUL CLINTON and
STOKES and CLINTON, P.C.

PLAINTIFFS

V.

CIVIL ACTION NO. 5:12-CV-84-DCB-RHW

W. RICHARD JOHNSON, SR., DAVID M.
SESSUMS, VARNER, PARKER &
SESSUMS, P.A., OMAR L. NELSON,
MORGAN & MORGAN, P.A., MORGAN &
MORGAN, PLLC and TAMRA WARNOCK

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Before the Court are Motions to Dismiss separately filed by
Defendants Richard Johnson, Sr., David M. Sessums, Varner, Parker
&

Sessums,

P.A.,

and

Tamara

Warnock

(collectively,

“Warnock

Defendants”) [docket no. 3] and by Defendants Omar L. Nelson,
Morgan & Morgan, P.S., and Morgan & Morgan, PLLC (collectively,
“Morgan & Morgan Defendants”) [docket no. 16]. Having carefully
considered

the

Motions,

the

Plaintiffs’

opposition

thereto

(jointly, “Clinton”), applicable statutory and case law, and being
otherwise fully advised in the premises, the Court finds and orders
as follows:
I. PLEADED FACTS AND CLAIMS
According to the Complaint [docket no. 1], Plaintiff J. Paul
Clinton, who is licenced to practice law in Mississippi, sued and
took a default judgment for his client State Farm Mutual Automobile
Insurance

against

Defendant

Tamara

Warnock

in

Warren

County,

Mississippi on November 27, 2006. Compl. ¶ 12 & Ex. A. The default

judgment related to a car accident in which Warnock was alleged to
have been involved. Compl. ¶ 12 & Ex. A. Shortly thereafter,
Defendant Richard Johnson, one of Warnock’s attorneys, moved to set
aside the judgment and a hearing was set on the matter. Compl. ¶
13. In response to Warnock’s Motion, wherein she averred that she
was not driving the car when the accident occurred, Compl. Ex. A ¶
4, Clinton sent a letter and proposed order to Johnson, stating
that State Farm would agree to set aside the default judgment and
dismiss Warnock from the suit if she would stipulate to certain
facts regarding her involvement in the accident. Compl. ¶ 14, 17.
Warnock declined State Farm’s offer and chose instead to proceed
with the hearing. Compl. ¶ 15.
At the hearing, Warnock provided testimony supporting her
claim that she could not be liable for the accident, and the trial
court set aside the judgment. Compl. ¶ 18. Another of Warnock’s
attorneys at the hearing, Defendant David M. Sessums, then moved
for sanctions against Clinton, but the trial court declined the
request. Compl. ¶ 19 & Ex. C. Following the hearing, Clinton claims
that he approached Johnson in an effort to “promote civility and
professional courtesy.” Compl. ¶ 22. According to Clinton, Johnson
rebuffed his good-faith attempt to smooth over the matter and
informed him that another “similar case” was pending in Hinds
County. Compl. ¶ 23. Clinton then went to the law office of Varner,
Parker & Sessums, to speak with Sessums. Clinton states that

2

Sessums was receptive to his overtures and agreed to resolve any
similar disputes

out

of

court

before

filing

the

matter

had

any

motions

for

resolved,

on

sanctions. Coml. ¶ 24.
Mistakenly

believing

been

September 26, 2007, Clinton learned from various clients, family,
and friends that the Clarion Ledger was running an advertisement in
which Johnson was soliciting potential clients who had been treated
similarly to Warnock with the intention of filing a class-action
lawsuit against Clinton. Compl. ¶ 29. Through some investigation,
Clinton discovered that Varner, Parker & Sessums had paid for the
advertisement. Compl. ¶ 30. Upon discovering this information,
Clinton contacted both Johnson and Varner, Parker & Sessums to
inform them that he believed their conduct violated Mississippi
Rule of Professional Conduct 7.2(e), which prohibits a lawyer from
directly or indirectly paying for the cost of an advertisement for
someone in another firm. Compl. ¶ 31. Sessums responded that
Johnson had been associated with the firm in the matter and that
the advertisement would continue to run. Compl. ¶¶ 33, 34. In
response, Clinton retained counsel and was successful in getting
the advertisement permanently enjoined. Compl. ¶ 38.
Subsequently, Warnock, represented by Johnson and Varner,
Parker & Sessums, filed a class-action Racketeer Influenced and
Corrupt Organizations (RICO) Act lawsuit in this Court against
Clinton and his law firm, which included allegations that Clinton

3

committed wire and mail fraud in his communications with Warnock.
Compl. ¶¶ 39, 40. After the RICO claim survived Clinton’s motion to
dismiss, Warnock retained Defendants Morgan & Morgan as additional
counsel. Compl. ¶ 41; see generally, Warnock v. State Farm Mut.
Auto. Ins. Co., 2008 WL 4594129 (S.D. Miss. Oct. 14, 2008). Clinton
spent the next three years defending Warnock’s RICO allegations.
Compl. ¶ 42. During the course of discovery, Warnock testified that
she had received no letters or phone calls from Clinton, his law
firm, or his client, an occurrence necessary for the survival of
her mail and wire fraud claims. Compl. ¶ 43. Clinton then moved for
summary judgment, which this Court granted because Warnock could
not produce any evidence of the commission of two or more incidents
of

fraud

and

thus

could

not

show

a

pattern

of

racketeering

activity. Compl. ¶ 46; see generally Warnock v. State Farm Mut.
Auto. Ins. Co., 833 F. Supp. 2d 604, 608-09 (S.D. Miss. June 15,
2011). Clinton avers that not only did he spend $789,429.44 on
defending a meritless case but also that his malpractice premium
increased 300% as a result of the lawsuit. Compl. ¶¶ 46, 47.
On the strength of these allegations, Clinton states seven
claims against both the Warnock and Morgan & Morgan Defendants:
Malicious Prosecution; Intentional and/or Negligent Infliction of
Emotional Distress; Libel Per Se; Libel Per Quod; Invasion of
Privacy

(False

Light);

Invasion

of

Privacy

(Appropriation

of

Plaintiffs’ Names); Abuse of Process. Compl. ¶¶ 48-74. He seeks the

4

following compensatory damages: fees incurred in defending the RICO
lawsuit; the cost of the increase in his malpractice insurance
premium; compensation for the harm to his reputation; compensation
for general pain, anguish, and emotional distress suffered as a
result of the lawsuit. Compl. ¶¶ 75. He also seeks punitive damages
because of the Defendants’ allegedly willful and malicious conduct.
Compl. 76. The Defendants move for dismissal pursuant to Federal
Rule of Procedure 12(b)(6).
II. STANDARD OF REVIEW
In considering a motion 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.
Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)
(quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).
However, “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 Rule 12(b)(6) motion, 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

5

the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Id. at 555 (citations and footnote
omitted). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
III. ANALYSIS
A. Morgan & Morgan Defendants’ Motion to Dismiss
The Morgan & Morgan Defendants are distinguishable from the
Warnock Defendants because of their limited participation in the
events that comprise the present suit. Specifically, the Complaint
indicates that they served only as legal counsel in Warnock’s RICO
action against Clinton. The Morgan & Morgan Defendants have moved
for dismissal based upon a variety of arguments, including whether
the statute of limitations has run on Clinton’s claims, but their
primary argument is that they cannot be liable based purely on
their

participation

in

the

RICO

lawsuit.

Having

surveyed

Mississippi law on point, this Court agrees.
1. Malicious Prosecution
For Clinton to recover for malicious prosecution against the
Morgan & Morgan Defendants, he must prove the following elements
with respect to their actions:
(1) The institution of a criminal [or civil] proceeding;
(2) by, or at the insistence of, the defendant; (3) the
termination of such proceedings in plaintiff’s favor; (4)
malice in instituting the proceedings; (5) want of
6

probable cause in the institution of the proceedings; (6)
the suffering of injury or damage as a result of the
prosecution.
Tebo v. Tebo, 550 F.3d 492, 498-99 (5th Cir. 2008) (quoting, with
the exception of the alteration, Parker v. Miss. Game & Fish
Comm’n, 555 So. 2d 725, 728 (Miss. 1989)). As an initial matter,
Clinton has not alleged any facts in his Complaint that would
support the fourth element of his claim: malice. The Complaint
alleges that “[t]he Defendants instituted the RICO action primarily
for a purpose other than that of bringing the Plaintiffs to
justice.” Compl. ¶ 52 (emphasis added). Even if this statement can
be construed to support the allegation of malice, factually, it can
only refer to the Warnock Defendants, who alone were responsible
for filing the RICO action. Moreover, the only other facts in the
Complaint that support the inference of malice are the Warnock
Defendants’ decision to run the Clarion Ledger advertisement and
subsequently file a lawsuit. According to the Complaint, the Morgan
& Morgan Defendants had nothing to do with these events. Compl. ¶
44.
Appearing to recognize this deficiency in his Complaint, in
his brief Clinton advances the legal theory that the Morgan &
Morgan Defendants acted with “malice” when they discovered or
should have discovered that Warnock’s RICO lacked a “probable

7

cause” of success1 but failed to dismiss the case. See Pl.’s Reply
Br. at 12-14; Owens v. Kroger Co., 430 So. 2d 843, 847 (Miss. 1983)
(stating that the inference of malice may be drawn from the lack of
probable cause). In other words, Clinton suggests that the Morgan
& Morgan Defendants are liable for malicious prosecution by virtue
of their willing participation in a meritless case. But this theory
is not tenable under Mississippi law. In Rose v. Tullos the
Mississippi Supreme Court repudiated the argument that an attorney
could be liable for malicious prosecution for continuing to pursue
his client’s case after discovering that the case has no merit. 994
So. 2d 734, 739 (Miss. 2008). In reaching this decision, the
supreme court opined that a malicious prosecution claim fails on
these facts because “[n]o continuing duty exists to force an
attorney to abandon a claim if it later appears to be without
merit.” Rose, 994 So. 2d at 739 (citing Bean v. Broussard, 587 So.
2d 908, 913 (Miss. 1991)).2 Regardless of whether Clinton is
correct that this statement has been too broadly applied, there is
no question that an attorney’s failure to dismiss a meritless case

1

One problem with Clinton’s allegation is that “[probable
cause is determined from the facts apparent to the observer when
prosecution is initiated.” Owens, 430 So. 2d at 846. The Morgan &
Morgan Defendants did not initiate the prosecution.
2

The Mississippi Supreme Court presumably meant that an
attorney has no duty to the adverse party, since an attorney has
some duty to the court not to pursue a frivolous pleading. Miss. R.
Civ. P. 11(b); see also Miss. Code Ann. § 73-3-37 (listing seven
duties of an attorney).
8

cannot form the basis of a malicious prosecution claim. Compare
Rose, 994 So. 2d at 739 (holding that “Tullos, acting as Jones’s
attorney, was not the proper party against whom to bring [a
malicious

prosecution]

action”)

with

Harried

v.

Forman

Perry

Watkins Krutz & Tardy, 813 F. Supp. 2d 835, 842 (S.D. Miss. 2011)
(stating that Rose held that “an attorney is ‘not the proper party
against whom to bring [a civil malicious prosecution] action’”)
(emphasis added). For this reason, Clinton’s malicious prosecution
claim against the Morgan & Morgan Defendants must be dismissed.
2. Remaining State Law Claims
But the Parties’ discussion regarding a lawyer’s potential
liability for harms caused to an adverse litigant does have some
bearing on Clinton’s other causes of action. See Def.s’ Br. at 5-6;
Pl.’s Reply Br. at 5-8; Def.’s Rep. Br. at 3-5. Fundamentally, the
debate between the parties is simply whether the Morgan & Morgan
Defendants can, as a matter of law, be liable to Clinton for
actions arising out of their participation in the RICO action. In
a relatively analogous situation, the Mississippi Supreme Court
dismissed a plaintiff’s negligence claim against his adversary’s
legal counsel because “[the adversary’s attorney] had no duty to
[the plaintiff] which could give rise to plaintiff’s recovery under
a tort theory.” Roussel v. Robbins, 688 So. 2d 714, 725 & n.4
(Miss. 1996). Not only does this blanket statement lend some
credence to the Morgan & Morgan Defendants’ broader malicious

9

prosecution argument, i.e., that they could not be liable under any
set of facts, it forecloses each of Clinton’s remaining claims
against the Morgan & Morgan Defendants because each of Clinton’s
allegations sound in tort and are strictly related to their prior
representation of Warnock. See James v. Chase Manhattan Bank, 173
F. Supp. 2d 544, 550 (N.D. Miss. 2001). Regardless of whether
Clinton’s claims against the Morgan & Morgan Defendants are viable
in other states, Mississippi law does not look favorably on a
litigant’s attempt to sue his adversary’s attorney for actions
taken during the course of prior litigation. Compare Pl.s’ Reply
Br. at 7-8 (stating that Mississippi holds the minority view,
citing cases) with James, 173 F. Supp. at 550 (“This Court is
unaware of any authority, however, not only in Mississippi, but
anywhere in the country, which suggests that an attorney owes a
duty, fiduciary or otherwise, to the adverse party in a case he is
litigating.”).
In sum, if Clinton had alleged that the Morgan & Morgan
Defendants played a role in the genesis of the litigation or took
some action unrelated to their legitimate representation of their
client, i.e., acted as more than legal counsel, then perhaps more
would need to be said about the particulars of each of Clinton’s
claims. But the only actions allegedly taken by the Morgan & Morgan
Defendants were the routine actions of a lawyer representing a
client, albeit in an allegedly frivolous lawsuit. Under Mississippi

10

law these actions alone cannot form the basis of a malicious
prosecution claim or any other tort claim, and accordingly, all
Clinton’s claims against the Morgan & Morgan Defendants will be
dismissed with prejudice because Clinton has failed to state a
plausible claim against them.
The Court is careful to articulate that this holding is
strictly limited to the Morgan & Morgan Defendants. Clinton’s
claims against Warnock, particularly his malicious prosecution
claim, are subject to a different analysis because she was the
plaintiff in the RICO action. Further, because Clinton has alleged
that Johnson, Sessums, and Varner, Parker & Sessums were the
impetus for the Clarion Ledger advertisement and the RICO case,
they too fall outside of the Court’s analysis above. With that
caveat, the Court now turns to Clinton’s claims against the Warnock
Defendants.
B. Warnock Defendants’ Motion to Dismiss
1. Malicious Prosecution
With respect to Clinton’s malicious prosecution claim, the
Warnock Defendants move for dismissal solely because they believe
that a malicious prosecution claim can only follow the institution
of a criminal action. See Defs.’ Br. at 3 (“Plaintiffs miss the
point

and

miss

the

boat.

Because

no

criminal

actions

were

encouraged . . . no cause of action accrued . . . .”). But as is
apparent

from

the

Tebo

quotation

11

above—a

quotation

that

was

provided by the Warnock Defendants in their brief—the institution
of

a

civil

action

can

form

the

foundation

of

a

malicious

prosecution claim. Tebo, 550 F.3d at 498-99. Because the Warnock
Defendants moved to dismiss Clinton’s malicious prosecution claim
on this ground alone, id. at 2-3, their Motion as to this claim
will be denied.3 See Pl.s’ Resp. Mot. ¶¶ 4-6.
2. Intentional/Negligent Infliction of Emotional Distress
As for Clinton’s intentional/negligent infliction of emotional
distress claims, the Parties spar over whether Clinton’s claims are
barred by the applicable statutes of limitations. They appear to
agree that the one-year statute of limitations codified in Miss.
Code Ann. § 15-1-35 applies to Clinton’s intentional inflection of
emotional distress claim, Jones v. Fluor Daniel Services Corp., 32
So. 3d 417, 423 (Miss. 2010), and the three-year general statute of
limitations codified in Miss Code Ann. § 15-1-49 governs his
negligent infliction of emotional distress claim. Air Comfort Sys.,
Inc. v. Honeywell, Inc., 760 So. 2d 43, 47 (Miss. App. 2000).
Turning to the Complaint, the alleged harm suffered by Clinton
was caused by two events: (1) the Clarion Ledger advertisement and
(2) the RICO action. The first Clarion Ledger advertisement ran in
mid-2007, more than three years before Clinton filed the present

3

Inasmuch as the Warnock Defendants raise arguments in their
rebuttal memorandum that are unrelated to the arguments contained
in their Motion and supporting memorandum brief, the Court chooses
not to entertain them rather than to ask Clinton for additional
briefing.
12

suit.

Inasmuch

as

Clinton’s

emotional

distress

claims

are

predicated on the Clarion Ledger advertisements, those claims are
barred by both the one-year and three-year statutes of limitations.
Contrary to Clinton’s argument, the Clarion Advertisement and the
RICO lawsuit cannot be considered one continuing emotional distress
violation because they are separate events, each giving rise to its
own cause of action. See Smith v. Franklin Custodian Funds, Inc.,
726 So.

2d

144,

149

(Miss.

1998).

But

Clinton’s

intentional

inflection of emotional distress claim related to the RICO action
is not barred by either statute of limitations because the RICO
action terminated less than one year before Clinton filed his
Complaint. But the Court agrees with the Warnock Defendants that
Clinton’s allegation of negligence in connection with the RICO
action runs counter to the facts and other allegations in the
Complaint. Clinton alleges that the Warnock Defendants initiated
the lawsuit for an improper purpose. Compl. ¶ 52. Accordingly, this
Court construes Clinton’s claim as one for intentional infliction
of emotional distress, see Childers v. Beaver Dam Plantation, Inc.,
360 F. Supp. 331, 334 (D.C. Miss. 1973), and it is the only claim
that

survives

the

Warnock

Defendants’

Warnock

Defendants

statue

of

limitations

argument.
3. Libel Claims
Likewise,

the

are

also

correct

that

Clinton’s libel claims based on the publication of the Clarion

13

Ledger advertisements are time-barred because he did not bring his
claims within one year of the date of first publication. McCorkle
v. McCorkle, 811 So. 2d 258, 265 (Miss. App. 2001) (citing Forman
v. Mississippi Publishers Corp., 195 Miss. 90, 107, 14 So. 2d 344,
347 (1943)). That determination is beyond dispute. Even Clinton,
who challenges the Warnock Defendants on most of their arguments,
fails to directly respond to this argument.
As for Clinton’s contention that the Warnock Defendants may
have committed libel in their pleadings in the RICO case, the
Parties engage in a legitimate dispute over how to interpret
Mississippi law. Both Parties acknowledge that statements made in
connection with judicial proceedings are generally privileged from
charges of defamation, a point which is settled in Mississippi law.
They differ as to whether the allegation of malice can overcome
such privilege. Def.s’ Br. at 6-7; Pl.s’ Resp. Br. at 4-5. Despite
the presence of seemingly conflicting opinions,4 on this point
there can be no doubt: the Warnock Defendants are immune from a
libel claim arising out of statements made in their RICO action, as
4

In Central Healthcare Services, P.A. v. Citizens Bank of
Philadelphia the Mississippi Court of Appeals correctly stated that
“[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.” 12 So. 3d 1159, 1168 (Miss. Ct.
App. 2009) (quoting McCorkle v. McCorkle, 811 So. 2d 258, 266
(Miss. Ct. App. 2001)). But the Mississippi Court of Appeals has
also appeared amenable to the idea that malice can overcome a claim
of this type of privilege. McCorkle, 811 So. 2d at 266; see also
Prewitt v. Phillips, 25 So. 3d 397 (Miss. App. 2009).
14

long as

the

statements were

pertinent and

relevant

to those

proceedings. Some time ago, the Mississippi Supreme Court carefully
considered this exact issue and settled on the “American rule” that
statements made in a judicial proceeding, if pertinent and relevant
to that proceeding, are absolutely privileged. See Hardtner v.
Salloum, 114 So. 621, 624 (Miss. 1927); see also Gunter v. Reeves,
21 So. 2d 468, 470 (Miss. 1945) (espousing a similar rule with
regard

to

criminal

proceedings).

In

this

context

at

least,

allegations of malice do not overcome a privilege that is absolute.
Hardtner, 114 So. 621 at 624 (“Appellant further says . . . the
libelous matter was maliciously false. However that may be, if
pertinent and relevant in a pleading in a judicial proceeding, it
is absolutely privileged.”). But see, Miss. Code Ann. § 71-5-131
(establishing

that

communications

of

the

employment

security

commission are “absolutely privileged” except those “maliciously”
communicated). Because Clinton has failed to make any allegations
that the Warnock Defendants included libelous matter in their
pleadings that was impertinent or irrelevant to the underlying
litigation,

the

statements

made

during

those

proceedings

are

absolutely privileged and Clinton’s libel claim must be dismissed.
4. Invasion of Privacy Claims
The same reasoning that applies to Clinton’s libel claims
applies equally to each of Clinton’s invasion of privacy claims.
See Brasel v. Hair Co., 976 So. 2d 390, 392 (Miss. App. 2008)

15

(stating

four

invasion

of

privacy

theories;

false

light

and

appropriation of plaintiff’s name are alleged by Clinton). First,
the Mississippi Supreme Court has held that invasion of privacy
claims, like defamation claims, must be brought within one year of
the time that they accrued. Young v. Jackson, 572 So. 2d 378, 382
(Miss. 1990) (citations omitted). Like Clinton’s other claims based
upon the Clarion Ledger advertisement, these claims are barred. As
to claims arising from the allegations contained in the RICO
lawsuit, the Warnock Defendants correctly state that the same
privilege that applies in defamation claims applies to invasion of
privacy claims. Young, 572 So. 2d at 383 (“[A]ctions for invasion
of privacy are subject to the defense of privilege the same as
defamation actions.”).5 As explained above, Clinton has not alleged
that the Warnock Defendants made libelous statements in their
pleadings that were irrelevant to those proceedings, and therefore
his invasion of privacy claims fail because the statements on which
they are predicated are shielded by absolute privilege.
5. Abuse of Process
As for Clinton’s final claim, the Warnock Defendants statute
of limitation’s defense falls short. Clinton filed his Complaint
within one year of the termination of the RICO suit and that suit
forms the basis of his abuse of process claim. There is no merit to

5

Although Young applied the more common qualified privilege,
the supreme court’s holding, as stated, applies equally to claims
of absolute privilege.
16

the

argument

that

this

claim

is

barred

by

the

statute

of

limitations. Further, while the Warnock Defendants appear to seek
dismissal of this claim on some other ground, they fail to explain
why the cases cited in their brief entitle them to dismissal. See
Def.’s Resp. Br. at 9-11. Therefore, the Court will deny the
Defendants’ Motion with respect to Clinton’s abuse of process
claim.
6. Noerr-Pennington doctrine
Finally, the Warnock Defendants obliquely state in their
conclusion that the Noerr-Pennington doctrine excuses them from
liability

for

all

Clinton’s

claims

arising

out

of

their

participation in the RICO action. See Def.’s Resp. Br. at 13. The
Court

is

hesitant

to

address

the

potentially

far-reaching

constitutional issue implicated by the Noerr-Pennington doctrine
because it is not clear from the Warnock Defendants’ page-long
block quote what exact argument they are advancing. Nevertheless,
the Court can readily conclude that regardless of whether the
Warnock

Defendants’

First

Amendment

right

to

petition

the

government is at odds with Clinton’s claims, see Video Intern.
Prod., Inc. v. Warner-Amex Cable Commc’ns. Inc., 858 F.2d 1075,
1084 (5th Cir. 1988), Clinton’s claims would survive dismissal
because the First Amendment does not protect litigation that is
objectively baseless. Bryant v. Mississippi Military Dept., 569 F.
Supp. 2d 680, 683 (S.D. Miss. 2008) (citing Prof’l Real Estate

17

Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 59
(1993)). Clinton consistently alleges that the RICO action was
objectively baseless, and therefore, to the extent that the NoerrPennington doctrine applies, it would not bar any of Clinton’s
claims arising out of the RICO lawsuit.
IV. CONCLUSION
Having carefully considered the Defendants’ Motions, IT IS
HEREBY ORDERED THAT the Morgan & Morgan Defendants’ Motion to
Dismiss [docket no. 16] is GRANTED. Plaintiff has failed to state
a plausible claim against them, and therefore all Plaintiffs’
claims against the Morgan & Morgan Defendants are DISMISSED WITH
PREJUDICE. IT IS FURTHER HEREBY ORDERED THAT Defendants’ Motion to
Dismiss [docket no. 3] is GRANTED IN PART AND DENIED IN PART.
Plaintiff has stated plausible claims for malicious prosecution,
intentional infliction of emotional distress, and abuse of process
against the Warnock Defendants and may proceed with discovery on
those

claims

only.

Plaintiff’s

defamation

claim,

negligent

infliction of emotional distress claim, and invasion of privacy
claims are DISMISSED WITH PREJUDICE. No further order will issue at
this time.
So ORDERED, this the 6th day of March 2013.

/s/ David Bramlette
UNITED STATES DISTRICT COURT

18