IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-60775
Summary Calendar
____________________
RUTHIE TYUS, Administratrix of the Estate of Sims Tyus,
Deceased,
Plaintiff-Appellant,
v.
RCG MISSISSIPPI INC, doing business as Kidney Care Inc,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(1:96-CV-285-S-D)
_________________________________________________________________
January 5, 1999
Before KING, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Dorothy and Sims Tyus brought this action against defendant-
appellee RCG Mississippi, Inc. alleging negligence, malicious
prosecution, abuse of process, and intentional infliction of
emotional distress arising out of Dorothy Tyus’s dialysis
treatment. The district court granted defendant-appellee’s
motion for summary judgment on Sims Tyus’s claims and dismissed
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Dorothy Tyus’s claims. We affirm.
I. FACTUAL & PROCEDURAL BACKGROUND
Dorothy Tyus, a blind person with end stage renal disease,
began receiving dialysis treatment from defendant-appellee RCG
Mississippi, Inc. (RCG) in June 1995. Her husband, Sims Tyus,
usually escorted her into the clinic and to her dialysis chair.
In April 1996, Dorothy Tyus alleged that a RCG nurse negligently
allowed her to bleed for a prolonged period of time.
In May 1996, RCG wrote Sims Tyus a letter requesting that he
only assist Dorothy Tyus into the building and not accompany her
to her chair. RCG alleges that Sims Tyus had become belligerent
and aggressive with the staff and harassed other patients. RCG
accused Sims Tyus of not abiding by this restriction and stated
in an August 22, 1996 letter that he was barred from entering RCG
property and that local authorities would be called if he did so.
Sims Tyus did enter RCG property on August 30, 1996, and RCG had
him arrested by the local police department. Sims Tyus was
convicted in municipal court for trespass and paid a fine.
Dorothy and Sims Tyus filed this suit in state court on
August 20, 1996, alleging RCG breached its duty of care to
Dorothy Tyus by improperly treating her in April 1996. RCG
removed the case to the United States District Court for the
Northern District of Mississippi on the basis of 28 U.S.C.
§ 1441(a). Dorothy and Sims Tyus amended their complaint in
February 1997, adding claims of malicious prosecution, abuse of
2
process, and intentional infliction of emotional distress arising
out of Sims Tyus’s arrest. Dorothy Tyus died in April 1997, and
RCG filed a suggestion of death with the court on May 5, 1997.
The district court granted RCG’s motion for summary judgment as
to Sims Tyus’s claims in October 1997, and dismissed Dorothy
Tyus’s claims because no motion for substitution had been made.
See Tyus v. Kidney Care, Inc., 982 F. Supp. 422 (N.D. Miss.
1997). Sims Tyus timely appealed both the grant of summary
judgment on his own claims and the dismissal of Dorothy Tyus’s
claims. Sims Tyus died in February 1998, and this court
substituted plaintiff-appellant Ruthie Tyus as administratrix of
his estate.
II. DISCUSSION
Ruthie Tyus argues that the district court erred in
dismissing Dorothy Tyus’s claims because a suggestion of death
was not served upon her estate as required by Rule 25 of the
Federal Rules of Civil Procedure. Ruthie Tyus also contends that
the district court erred in granting summary judgment because
there were genuine issues as to the claims of malicious
prosecution, abuse of process, and intentional infliction of
emotional distress. We address each of these issues in turn.
A. Standard of Review
We review questions of law such as a district court’s
interpretation of a Federal Rule of Civil Procedure de novo. See
Bellaire Gen. Hosp. v. Blue Cross Blue Shield, 97 F.3d 822, 827
(5th Cir. 1996). We also review the grant of summary judgment by
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a district court de novo. See Tolson v. Avondale Indus., Inc.,
141 F.3d 604, 608 (5th Cir. 1998). We first consult the
applicable law to determine the material fact issues. See Baker
v. Putnal, 75 F.3d 190, 197-98 (5th Cir. 1996). “We then review
the evidence bearing on those issues, viewing the facts and
inferences to be drawn therefrom in the light most favorable to
the nonmoving party.” Id. at 198. Summary judgment is
appropriate if “there is no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c).
A. Dorothy Tyus’s Claims
Rule 25(a)(1) provides that “[i]f a party dies and the claim
is not thereby extinguished, the court may order substitution of
the proper parties.”1 Fed R. Civ. P. 25(a)(1). Once information
of a death is provided pursuant to a suggestion of death, a
representative has ninety days to file a motion to substitute.
See id.; Fed. R. Civ. P. 25 advisory committee’s note. The
suggestion of death upon the record is a statement of the fact of
a party’s death “served on the parties as provided in Rule 5 and
1
Whether Dorothy Tyus’s claims survived her death is
determined under Mississippi law. See Ransom v. Brennan, 437
F.2d 513, 520 (5th Cir. 1971); see also Miss. Code Ann. § 91-7-
237 (“When either of the parties to any personal action shall die
before final judgment, the executor or administrator of such
deceased party may prosecute or defend such action.”). Neither
party argues that Dorothy Tyus’s claims did not survive her
death, and Mississippi courts have defined a “personal action” as
including actions “for the recovery of damages for the commission
of an injury to the person or property.” Powell v. Buchanan, 147
So. 2d 110, 111 (Miss. 1962) (quoting 1 C.J.S. Actions § 1). We
therefore agree with the district court’s implicit finding that
Dorothy Tyus’s claims survived her death.
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upon persons not parties in the manner provided in Rule 4 for the
service of a summons.” Fed. R. Civ. P. 25(a)(1).
Ruthie Tyus contends that the suggestion of death that RCG
filed in the district court on May 5, 1997 was inadequate to
begin the ninety-day period for a motion to substitute because
“the appropriate representative of the estate” was not served a
suggestion of death under Rule 4. Rather, RCG only served the
suggestion on the attorney of record, Rhonda Hayes-Ellis, who
represented Sims Tyus and had represented Dorothy Tyus. Because
the representative of the estate was not personally served under
Rule 4, Ruthie Tyus argues, Dorothy Tyus’s claims should be
remanded for a trial on the merits.
The flaw in Ruthie Tyus’s argument, however, is her
admission that Sims Tyus was the sole heir and successor of the
claims brought by Dorothy Tyus. Rule 25(a)(1) requires only that
“persons not parties” be personally served the suggestion of
death as provided in Rule 4; the suggestion shall be served on
parties “as provided in Rule 5.” Id. Rule 5 requires that when
service is required upon a party represented by an attorney, “the
service shall be made upon the attorney unless service upon the
party is ordered by the court.” Fed. R. Civ. P. 5(b). Sims Tyus
was clearly a party in this action, and therefore service of the
suggestion upon his attorney was proper under Rule 25 and
triggered the ninety-day period within which to file a motion to
substitute. Ruthie Tyus’s claim that RCG was required to serve
Sims Tyus personally is in direct conflict with the clear
5
language of the Federal Rules, and we therefore affirm the
dismissal of Dorothy Tyus’s claims.
B. Malicious Prosecution
Under Mississippi law, Ruthie Tyus must prove each of the
following elements to prevail on a malicious prosecution claim:
(1) the institution or continuation of original judicial
proceedings, either criminal or civil;
(2) by, or at the insistence of RCG;
(3) the termination of such proceedings in Sims Tyus’s
favor;
(4) malice in instituting the proceedings;
(5) want of probable cause for the proceedings;
(6) the suffering of damages as a result of the action or
prosecution complained of.
See Moon v. Condere Corp., 690 So. 2d 1191, 1194 (Miss. 1997);
Pugh v. Easterling, 367 So. 2d 935, 937 (Miss. 1979).
Ruthie Tyus argues that Sims Tyus’s trespass conviction is
not fatal to her malicious prosecution claim because the
conviction was “procured through false testimony and without
foundation of the law.” In support of this argument, Ruthie Tyus
cites an article in American Jurisprudence stating that
convictions are generally fatal to malicious prosecution claims
“in the absence of a direct and successful attack thereon based
on extrinsic fraud in its procurement, such as . . . fraudulent
or perjured testimony.” 52 Am. Jur. 2d Malicious Prosecution
§ 179 (1970) (footnotes omitted).
While the American Jurisprudence article may accurately
reflect the law in some jurisdictions, it is clearly not the law
in Mississippi. In Mississippi, “a conviction is conclusive
evidence of probable cause for instituting a criminal
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prosecution, and a plaintiff, in a suit for malicious prosecution
based on a criminal prosecution, must show that the criminal
proceeding terminated in his favor as a condition precedent to
recovery.” Pugh, 367 So. 2d at 938. This is because “[i]f a
defendant is convicted on evidence obtained by fraud, perjury, or
other corrupt means, adequate post conviction remedies exist
whereby the conviction may be corrected.” Ruthie Tyus concedes
that Sims Tyus’s criminal proceeding did not terminate in his
favor, and therefore the district court properly granted RCG
summary judgment on Ruthie Tyus’s malicious prosecution claim.
C. Abuse of Process
Ruthie Tyus must demonstrate the following elements to
prevail on her abuse of process claim: (1) that RCG made an
illegal and improper perverted use of the process, a use neither
warranted nor authorized by the process; (2) that RCG had an
ulterior motive or purpose; and (3) that damage resulted to the
plaintiff from the abuse. See Moon, 690 So. 2d at 1197. Abuse
of process differs from malicious prosecution because malicious
prosecution “is the employment of process for its ostensible
purpose, but without reasonable or probable cause, whereas the
malicious abuse of process is the employment of a process . . .
to obtain an object which such a process is not intended by law
to effect.” Mississippi ex rel. Foster v. Turner, 319 So. 2d
233, 236 (Miss. 1975).
Ruthie Tyus argues that RCG secured the arrest of Sims Tyus
in retaliation for Dorothy and Sims Tyus’s filing suit against
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RCG, and that RCG attempted to punish them for exercising their
rights. RCG claims it secured the arrest of Sims Tyus because of
his unruly behavior and his failure to heed its warning in its
August 22, 1996 letter not to enter its property. In the context
of the legitimate purposes RCG expresses and of the circumstances
surrounding Sims Tyus’s arrest, Ruthie Tyus has “a difficult
burden” to prove that RCG’s primary purpose was something other
than that contemplated by the statute prohibiting trespass.
Wilcon, Inc. v. Travelers Indem. Co., 654 F.2d 976, 986 (5th Cir.
Unit A Aug. 1981). Our examination of the record convinces us
that Ruthie Tyus has not met this burden.
RCG initially requested that Sims Tyus curtail his
activities on RCG properties in May 1996, three months before he
and his wife filed this suit. RCG wrote its August 22, 1996
letter warning Sims Tyus not to enter RCG property on the same
day that Sims Tyus’s attorney mailed RCG the summons and
complaint. RCG did not receive the summons and complaint until
August 26, 1996, and there is no evidence that RCG knew of the
lawsuit prior to August 26, 1996. RCG thus could not have issued
its warning to Sims Tyus in retaliation for the lawsuit, and
Ruthie Tyus points to no evidence except the conclusory
allegations of Dorothy and Sims Tyus that RCG had Sims Tyus
arrested for any reason other than the unruly behavior of which
it complained in its May and August 1996 letters. See Douglass
v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996)
(en banc) (“[C]onclusory allegations, speculation, and
8
unsubstantiated assertions are inadequate to satisfy the
nonmovant’s burden.”). We therefore agree with the district
court that Ruthie Tyus fails to raise a genuine issue as to the
primary purpose of RCG’s use of process and we affirm its grant
of summary judgment on this issue.
D. Intentional Infliction of Emotional Distress
The standard of recovery for intentional infliction of
emotional distress “requires conduct ‘so outrageous in character,
and so extreme in degree, as to go beyond all bounds of decency
and to be regarded as atrocious, and utterly intolerable in a
civilized community.’” Morrison v. Means, 680 So. 2d 803, 805-06
(Miss. 1996) (quoting Restatement (Second) of Torts § 46). “It
has not been enough that the defendant has acted with an intent
which is tortious or even criminal, or that he has intended to
inflict emotional distress, or even that his conduct has been
characterized by ‘malice.’” Wong v. Stripling, 700 So. 2d 296,
306 (Miss. 1997) (quoting Restatement (Second) of Torts § 46 cmt.
d). Rather, extreme and outrageous conduct is conduct “which the
recitation of the facts to an average member of the community
would arouse his resentment against the actor, and lead him to
exclaim ‘Outrageous.’” Id.; see Jenkins v. City of Grenada, 813
F. Supp. 443, 447 (N.D. Miss. 1993) (citing Wilson v. Monarch
Paper Co., 939 F.2d 1138, 1143 (5th Cir. 1991).
Ruthie Tyus argues that RCG’s decision to prohibit Sims Tyus
from entering the dialysis facility, and to have him arrested for
ulterior motives, evokes outrage or revulsion. After reviewing
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the record, however, we disagree. Sims Tyus learned in May 1996
and again one week before he was arrested that his access to
RCG’s facility would be restricted because of his unruly
behavior. Although his presence undoubtedly increased his wife’s
comfort, there is no evidence that Dorothy Tyus was mistreated
when RCG staff assisted her into the RCG facility. Even after
receiving the August 22, 1996 letter and a verbal warning not to
enter RCG property, Sims Tyus asked RCG’s security guard to call
the police, entered RCG property in their presence, and was
arrested. As unfortunate as Dorothy and Sims Tyus’ situation may
have been, it does not demonstrate outrageousness and does not go
beyond all bounds of decency. We therefore affirm the district
court’s grant of summary judgment on Ruthie Tyus’s intentional
infliction of emotional distress claim.
III. CONCLUSION
For the foregoing reasons, we find that the district court
correctly granted summary judgment in favor of defendant-
appellee. The judgment is AFFIRMED.
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