UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 95-60060
Summary Calendar
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CHARLES LAWSON
Plaintiff-Appellant
VERSUS
HEIDELBERG EASTERN, INC., dba
Plumrose, U.S.A.
Defendant-Appellee
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Appeal from the United States District Court
for the Northern District of Mississippi, Aberdeen
(1:93 CV 243 S D)
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(October 20, 1995)
Before HIGGINBOTHAM, DUHÉ, AND EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Plaintiff-Appellant sued his employer, a diverse defendant, for
intentional infliction of emotional distress, violation of the
Mississippi Actionable Words Statute and failing to carry out the
employment contract in good faith. Plaintiff alleged that a
managerial employee cursed him, threatened to “blow his head off” and
challenged him to a fistfight when Plaintiff complained that the
manager crowded his work space. Plaintiff’s claims were dismissed by
the district court by summary judgment because the manager’s actions,
while improper, were not sufficiently extreme or outrageous to
Local Rule 47.5 provides: “The publication of opinions that have
no precedential value and merely decide particular cases on the basis
of well-settled principles of law imposes needless expense on the
public and burdens on the legal profession.” Pursuant to that Rule,
the Court has determined that this opinion should not be published.
support a claim for intentional infliction of emotional distress and
because a corporate employer cannot be held liable under the
Mississippi Actionable Words Statute for the words of its employee.
Lawson v. Heidelberg Eastern, 872 F. Supp. 335 (N.D. Miss. 1995).
After reviewing the record and arguments of both parties, we affirm.
We must determine sua sponte our jurisdiction. Morales v. Pan
American Life Ins. Co., 914 F.2d 83, 85 (5th Cir. 1990). We have
jurisdiction over final decisions of the district court, i.e.
decisions which dispose of the entire controversy and leave nothing
further for the court to do in the cause. 28 U.S.C. § 1291; National
Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex.,
40 F.3d 698 (5th Cir. 1994). An order may be “final” even though
the district court does not formally include judgment on a claim that
has been abandoned when the court intended to end the litigation.
Vaughn v. Mobil Oil Exploration & Producing Southeast, Inc., 891 F.2d
1195, 1198 (5th Cir. 1990); Armstrong v. Trico Marine, Inc., 923 F.2d
55 (5th Cir. 1991).
Here, the district court dismissed the entire cause with
prejudice and had the case closed without any reference to the
contract of employment claim. While the record before us does not
indicate whether the contract claim was included in Defendant’s
motion for summary judgment, the district court’s ten-page
typewritten opinion does not address the claim, Plaintiff does not
challenge the finality of the district court’s judgment and Plaintiff
filed this appeal pursuant to 28 U.S.C. §1291 which confers appellate
jurisdiction over final judgments. We therefore conclude that
Plaintiff abandoned the employment contract claim, that the district
court’s judgment is a final judgment and that we have jurisdiction
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over the appeal. See, National Ass’n of Gov’t Employees, 40 F.3d at
706.
Appellant first argues that the district court improperly relied
on Louisiana law and the Restatement (Second) of Torts in this
Mississippi-based diversity action. Absent a decision directly on
point from the Mississippi Supreme Court, a federal court sitting in
diversity must consider the lower court rulings, the general rule,
the rules of other jurisdictions and other available legal resources
and decide the issue based upon what the Mississippi Supreme Court is
likely to rule. Jackson v. Johns-Manville Sales Corp., 781 F.2d 394,
396-98 (5th Cir. 1986)(en banc), cert. denied, 478 U.S. 1022, 106
S.Ct. 3339, 92 L.Ed. 2d 743 (1986). Because no Mississippi court
has specifically addressed cursing and threats of fistfighting in an
employment setting, the district court’s reliance on the Restatement
(Second) of Torts and Louisiana jurisprudence was not erroneous.
Further, the Mississippi Supreme Court was guided in part by the
first Restatement of Torts in fashioning its rule of law for
intentional infliction of emotional distress. Lyons v. Zale Jewelry
Co., 246 Miss. 139, 150 So. 2d 154 (Miss. 1963).
Plaintiff also argues that the quality of the manager’s conduct
cannot be evaluated by the court on motion for summary judgment.
Summary judgment, however, is appropriate when the moving party
establishes that there is no genuine issue of material fact and it is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(b).
Defendant accepts, for the purpose of the motion, all of the facts
alleged by plaintiff. We must decide only whether these facts are
legally sufficient to support a claim for intentional infliction of
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emotional distress or a claim under the Mississippi Actionable Words
Statute.
Under Mississippi law, an action for intentional infliction of
emotional distress lies when the defendant’s intentional conduct
evokes foreseeable outrage or revulsion. Sears, Roebuck & Co. v.
Devers, 405 So. 2d 898, 902 (Miss. 1981); White v. Walker, 950 F.2d
972 (5th Cir. 1991). “Liability has been found only where the
conduct has been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community.” Restatement (Second) of Torts §46, cmt. d (1965). We
agree with the district court’s conclusion that the manager’s
actions, while improper, do not rise to the level of extreme and
outrageous conduct necessary to recover damages for intentional
infliction of emotional distress. The cases cited by plaintiff are
unpersuasive because they involve conduct more outrageous than an
employment dispute between coemployees or were decided according to
behavioral standards over fifty years old which are not necessarily
applicable in determinations of outrageousness by a contemporary
court. White v. Walker, 950 F.2d 972 (5th Cir. 1991).
Appellee also urges that summary judgment is proper because
Plaintiff’s mental distress was not sufficiently severe to warrant
recovery, the manager’s actions were outside the scope of his
employment, and the manager’s actions were not ratified by
Defendant. Because the nature of the manager’s conduct is
dispositive, we do not address these issues.
Plaintiff argues that his claim for violations of the
Mississippi Actionable Words Statute, Miss. Code Ann. §95-1-1, should
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not have been dismissed because a question of fact regarding the
applicability of the statute to an employer exists. We disagree.
Ordinarily, an employer is not liable under the actionable words
statute for words uttered by an employee. Dixie Fire Ins. Co. v.
Betty, 101 Miss. 880, 58 So. 705 (Miss. 1912); Neely v. Payne, 126
Miss. 854, 89 So. 669 (Miss. 1921). Dixie suggests the possibility,
however, that a principal may be held liable for the words of an
employee if the words were spoken at the command of the employer.
Plaintiff provides no evidence that the manager’s words were spoken
at the command of Defendant. Instead, Plaintiff asks us to apply the
common law standard for respondeat superior liability. This standard
is inapplicable.
AFFIRMED.
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