United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
before the Court is a motion for summary judgment  filed
by Defendant FXI, Inc. doing business as Foamex Innovations
Operating Company ("Defendant"). Plaintiff Keith
Jones ("Plaintiff) has filed a response, and Defendant
has filed a reply. Upon due consideration, the Court finds
that the motion for summary judgment must be granted in part
and denied in part, as demonstrated below.
Factual and Procedural Background
brings this fraud action against Defendant, his former
employer. Defendant previously employed Plaintiff as an
AutoCAD technician. Pl.'s First Am. Compl.  ¶ 6;
Def.'s Answer  ¶ 6. Defendant terminated
Plaintiffs employment for violations of Defendant's
attendance policy, which provides for employment termination
when an employee accrues four negative occurrences of
absences and/or tardiness. Pl.'s First Am. Compl. 
¶¶ 7-8; Def.'s Answer  ¶¶ 7-8.
Defendant utilized Attendance Status Notification forms as
documentation of the employee's absences and tardiness.
Pl.'s First Am. Compl.  ¶ 10; Def.'s Answer
 ¶ 10. Plaintiff alleges, but Defendant denies, that
Defendant was required by its own attendance policy to notify
Plaintiff of each occurrence of a violation of the attendance
policy through the Attendance Status Notification form; that
the form was signed by the employee, the employee's
supervisor, and the human resources manager; and that at the
time of Plaintiff's termination, Defendant had not
provided Plaintiff with an Attendance Status Notification
form for each occurrence upon which the termination was
based. Pl.'s First Am. Compl.  ¶¶ 9-11;
Def.'s Answer  ¶¶ 9-11. The parties do not
dispute, however, that following Plaintiffs termination he
applied to the Mississippi Department of Employment Security
("MDES") for unemployment compensation benefits.
Pl.'s First Am. Compl.  ¶ 12; Def.'s Answer
 ¶ 12.
alleges that "[i]n an effort to deprive [Plaintiff] of
his unemployment compensation benefits, [Defendant], acting
through its employees and agents, devised a scheme to forge
[Plaintiffs] signature on several Attendance Status
Notification forms and submit the forged forms to the
[MDES]." Pl.'s First Am. Compl.  ¶ 13.
Plaintiff further alleges that "[i]f successful in
convincing the MDES to deny [Plaintiffs] claim for
unemployment compensation benefits [Defendant] would reduce
its potential tax liability to the State of Mississippi by
avoiding an increase in its employer rating upon which its
tax liability is based." Id. ¶ 14. The
parties do not dispute that on September 15, 2014,
Defendant's agent, ADP, faxed Attendance Status
Notification forms to the MDES and that the MDES subsequently
denied Plaintiffs claim for unemployment compensation
benefits. Id. ¶¶ 15, 20; Def.'s Answer
 ¶¶ 15, 20. Plaintiff alleges that five of the
forms were "forgeries created by [Defendant] by using
[Plaintiffs] signature from [another form] and mechanically
reproducing his signature, apparently along with the
signature of his supervisor and the human resources
coordinator . . . ." and that these forms were both
faxed and mailed in interstate commerce to the MDES.
Pl.'s First Am. Compl.  ¶¶ 18, 21.
timely appealed the MDES denial of his claim for unemployment
compensation benefits. Id. ¶ 24; Def.'s
Answer  ¶ 24. Defendant faxed exhibits to the MDES
and mailed those exhibits to Plaintiff, as well. Pl.'s
First Am. Compl.  ¶ 25; Def.'s Answer 
¶ 25. Plaintiff alleges, and Defendant denies, that
Defendant took this action in furtherance of its continuing
scheme to deprive Plaintiff of unemployment compensation
benefits. Pl.'s First Am. Compl.  ¶ 26. On
October 31, 2014, the MDES-assigned Administrative Law Judge
("ALJ") held a telephonic appeal hearing; in
connection with those proceedings, Defendant introduced into
evidence Attendance Status Notification forms. Id.
¶¶ 24, 28; Def.'s Answer  ¶¶ 24,
28. Plaintiff alleges, and Defendant denies, that during the
hearing, Defendant made materially false statements under
oath through its employer representative and human resources
coordinator in furtherance of its continuing scheme to
deprive Plaintiff of unemployment compensation benefits.
Pl.'s First Am. Compl.  ¶ 29; Def.'s Answer
 ¶ 29. During the hearing, Plaintiff claimed that
several of the forms were forgeries. Pl.'s First Am.
Compl.  ¶ 30; Def.'s Answer  ¶ 30.
Defendant's human resources coordinator and Plaintiffs
former supervisor testified at the appeal hearing; this
testimony was within the course of scope of their respective
employment with Defendant. Pl.'s First Am. Compl. 
¶¶ 32, 40; Def.'s Answer  ¶¶ 32,
40. After the hearing, the ALJ issued his decision, which
Plaintiff attaches to his first amended complaint.
See ALJ Decision [25-2]. In that decision, the ALJ
found that Plaintiffs signature had been forged on several of
the Attendance Status Notification forms and that Defendant
had predicated fraud upon the court. Pl.'s First Am.
Compl.  ¶¶ 34-35; Def.'s Answer  ¶
34-35. Aggrieved, Defendant filed an appeal with the MDES
Board of Review. Pl.'s First Am. Compl.  ¶ 36;
Def.'s Answer  ¶ 36. Plaintiff alleges, and
Defendant denies, that the filing of this appeal with the
MDES Board of Review was an act in furtherance of a
continuing scheme to deny Plaintiff unemployment compensation
benefits. Pl.'s First Am. Compl.  ¶ 37. The
Board of Review affirmed the ALJ's decision. Pl.'s
First Am. Compl.  ¶¶ 38-39; Def.'s Answer
 ¶¶ 38-39. Plaintiff asserts the following
state-law claims against Defendant: fraud, forgery, the
common-law tort of outrage, tortious interference with
prospective advantage, and negligent training/failure to
train and supervision.
Defendant filed its amended answer  to Plaintiffs first
amended complaint , the parties engaged in discovery.
Subsequently, on November 21, 2016, Defendant filed the
present motion for summary judgment .
Summary Judgment Standard
Court grants summary judgment "if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as
a matter of law." See Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986); Weaver v. CCA Indus.,
Inc., 529 F.3d 335, 339 (5th Cir. 2008). The rule
"mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails
to make a sufficient showing to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial."
Celotex Corp., Ml U.S. at 322, 106 S.Ct. 2548.
party moving for summary judgment bears the initial
responsibility of informing the court of the basis for its
motion and identifying those portions of the record it
believes demonstrate the absence of a genuine dispute of
material fact. Id. at 323, 106 S.Ct. 2548. Under
Rule 56(a), the burden then shifts to the nonmovant to
"go beyond the pleadings and by . . . affidavits, or by
the 'depositions, answers to interrogatories, and
admissions on file, ' designate 'specific facts
showing that there is a genuine issue for trial.' "
Id. at 324, 106 S.Ct. 2548; Littlefield v.
Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.
2001); Willis v. Roche Biomedical Labs., Inc., 61
F.3d 313, 315 (5th Cir. 1995). Where, as here, the parties
dispute the facts, the Court must view the facts and draw
reasonable inferences in the light most favorable to the
plaintiff. See Scott v. Harris, 550 U.S. 372, 378,
127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (internal citations
omitted). "However, a nonmovant may not overcome the
summary judgment standard with conciusional allegations,
unsupported assertions, or presentation of only a scintilla
of evidence." McClure v. Boles, 490 F.App'x
666, 667 (5th Cir. 2012) (per curiam) (citing Hathaway v.
Bazany, 507 F.3d 312, 319 (5th Cir. 2007)).
Analysis and Discussion
stated above, Plaintiff asserts the following claims against
Defendant under Mississippi law: fraud, forgery, the
common-law tort of outrage,  tortious interference with
prospective advantage, and negligent training/failure to
train and supervision.
argues that summary judgment is appropriate for the following
reasons: (1) Plaintiffs intentional infliction of emotional
distress claim fails, because it is (a) barred by the
applicable statute of limitations and (b) fails on its
merits; (2) Plaintiffs fraud claim fails, because Plaintiff
never relied on the allegedly forged Attendance Status
Notification forms; (3) Plaintiffs tortious interference with
a prospective advantage claim fails, because Plaintiff did
not have a business relationship with the MDES; and (4)
Plaintiffs negligent training and supervision claim fails,
because Defendant did not owe a duty to Plaintiff to train
its employees on their ethical obligations in handling
unemployment claims. The Court examines these arguments with
respect to the claims asserted by Plaintiff. The Court then
examines the argument raised by Plaintiff in its response
that Defendant is collaterally estopped from denying it
committed forgery based on the factual findings of the MDES.
Intentional Infliction of Emotional Distress
motion for summary judgment, Defendant makes two arguments
supporting dismissal of the intentional infliction of
emotional distress claim: (a) that the claim is barred by the
statute of limitations, and (b) that the claim fails as a
matter of law. As demonstrated below, the Court finds that
both of these arguments are not well taken and that the
intentional infliction of emotional distress claim survives
Intentional Infliction of Emotional Distress-Statute of
Defendant argues that the intentional infliction of emotional
distress claim is barred by the statute of limitations, which
began to run no later than October 24, 2014, when Plaintiff
received the copies of the allegedly forged documents
submitted to the MDES, and that because Plaintiff failed to
file his complaint on or before October 24, 2015, the claim
is time barred by Mississippi's one-year statute of
limitations for intentional torts. See Raddin v.
Manchester Educ. Found, Inc., 175 So.3d 1243, 1252
(Miss. 2015) (citing Miss. Code Ann. § 15-1-35).
argues in response that his claim did not accrue until the
date of the appeal hearing before the MDES on October 31,
2014, because the outrageous acts constituting the tort did
not occur until that day. Specifically, Plaintiff maintains
that on the day of the MDES appeal hearing Defendant admitted
into evidence documents containing Plaintiffs forged
signature to persuade the MDES to deny Plaintiffs claim for
unemployment benefits. Further, Plaintiff maintains that
Defendant also on that day made false representations under
oath regarding the validity of the signatures on the forged
documents. Thus, Plaintiff maintains that his intentional
infliction of emotional distress claim is not barred by the
statute of limitations.
respect to the statute of limitations on an intentional
infliction of emotional distress claim, the Court looks to
the intentional act or acts which the plaintiff alleges form
the basis of his claim. See CitiFinancial Mortg. Co. v.
Washington,967 So.2d 16, 19 (Miss. 2007). "The
limitations period begins to run as soon as the events giving
rise to the distress occur." Gatheright v.
Clark, No. 16-60364, 2017 WL 728698, at *4 (5th Cir.
Feb. 23, 2017) (per curiam) (citing CitiFinancial Mortg.
Co., 967 So.2d at 19). However, consideration is made
for a continuing tort, a repeated injury, such as the one
present in the case sub judice; in such a situation,
the statute of limitations begins to run on the date of the
last injury or when the tortious acts cease. See Smith v.
Franklin Custodian Funds, Inc.,726 So.2d 144, 148
(Miss. 1998). See also Smith v. Isle of Capri Casinos,
Inc., No. 4:I3CV6O-M-V, 2014 WL 2533181, at *6 (N.D.
Miss. June 5, 2014) (statute of limitations began to run on