United States District Court, S.D. Mississippi, Northern Division
KIMBERLY V. BRACEY PLAINTIFF
CITY OF JACKSON, MISSISSIPPI, et al. DEFENDANTS
P. JORDAN III UNITED STATES DISTRICT JUDGE.
case is before the Court on Counter-Defendant Kimberly V.
Bracey's Motion to Dismiss . Bracey asks the Court to
dismiss Counter-Plaintiff Tony Yarber's Counterclaim 
against her. For the reasons that follow, the motion is
granted and the Counterclaim is dismissed.
Facts and Procedural History
August 25, 2016, Kimberly V. Bracey filed this lawsuit
alleging sex-discrimination, sexual-harassment,
hostile-work-environment, and retaliation claims against the
City of Jackson and Mayor Tony Yarber, individually and in
his official capacity. In general terms, Bracey's claims
center on allegations of mistreatment by Yarber while she was
employed by the City of Jackson from April 2014, through
October 24, 2016, Yarber, in his individual capacity, filed
his Answer and Counterclaim . He asserts claims against
Bracey for abuse of process and defamation related to her
filing of the Complaint and Amended Complaint  in this
action. Bracey moved to dismiss those claims under Federal
Rule of Civil Procedure 12(b)(6). Following the entry of a
show-cause order, Yarber responded in opposition, and Bracey
filed a reply. The Court has personal and subject-matter
jurisdiction and is prepared to rule.
considering a motion to dismiss under Rule 12(b)(6), the
“court accepts ‘all well-pleaded facts as true,
viewing them in the light most favorable to the
plaintiff.'” Martin K. Eby Constr. Co. v. Dall.
Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)
(quoting Jones v. Greninger, 188 F.3d 322, 324 (5th
Cir. 1999) (per curiam)). But “the tenet that a court
must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To overcome a motion to dismiss, a plaintiff must
plead “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. “Factual allegations must be enough to raise a
right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Id. at 555
(citations and footnote omitted).
Abuse of Process Yarber alleges that “the filing of the
Complaint and the filing and service of the Amended Complaint
containing false allegations . . . constitute abuse of
process.” Countercl.  at 9.
To maintain an action for abuse of process, the plaintiff
must establish: “(1) that the defendant made an illegal
and improper perverted use of the process, a use neither
warranted nor authorized by the process; (2) that the
defendant had an ulterior motive or purpose in exercising
such illegal, perverted, or improper use of process; and (3)
that damage resulted to the plaintiff from the
Moon v. Condere Corp., 690 So.2d 1191, 1197 (Miss.
1997) (quoting State ex rel. Foster v. Turner, 319
So.2d 233, 236 (Miss. 1975)).
Typical of the cases where the action of abuse of process
will lie is where through the employment of process a man has
been arrested or his property seized in order to extort
payment of money from him, even though the claim be a just
one other than in that suit, or to prevent a conveyance, or
to compel him to give up possession to some thing or value,
when such were not the legal objects of the suit.
Edmonds v. Delta Democrat Publishing Co., 93 So.2d
171, 175 (Miss. 1957). Where “the only process involved
was a simple summon to defend the suit, ” a claim for
abuse of process will not lie. Id.; see also
Gatheright v. Clark, No. 16-60364, 2017 WL 728698, at *3
(5th Cir. Feb. 23, 2017) (“Where a claim is based
solely on the filing of a suit, and not on any perversion of
the process once process issues, a claim for abuse of process
will fail.”); Austin Firefighters Relief & Ret.
Fund v. Brown, 760 F.Supp.2d 662, 676-77 (S.D.Miss.
2010) (“[W]here an abuse of process claim is based
simply on the filing of a lawsuit, it cannot be said that
process of the court has been abused by accomplishing a
result not commanded by it or not lawfully obtainable under
case, as in the cases cited above, Yarber's counterclaim
is “not based on any perversion of any process[;]
rather, it [is] based simply on the filing of the
suit.” Moon, 690 So.2d at 1197 (citing
Edwards, 93 So.2d at 174); see also Id.
(“[T]he only process involved in this case was the
summons. There were no arrests made, and there was no seizure
of property. Thus, there was no improper use of process after
it had been issued.”). Because Yarber's
abuse-of-process claim is based solely on Bracey's filing