United States District Court, S.D. Mississippi, Southern Division
INDUSTRIAL & CRANE SERVICES, INC. PLAINTIFF
DAVIS INDUSTRIAL SERVICES, LLC and BRIAN SCOTT DAVIS DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR SUMMARY JUDGMENT
GUIROLA, JR. UNITED STATES DISTRICT JUDGE
THE COURT is the  Motion for Summary Judgment filed by
Defendants Davis Industrial Services, LLC and Brian Scott
Davis. The Motion has been fully briefed by the parties.
After due consideration of the issues presented and the
relevant law, it is the Court's opinion that the Motion
should be granted in part and denied in part.
Brian Scott Davis was employed by Plaintiff Industrial Crane
& Services, Inc. as a vice president. Davis was
responsible for managing Industrial's business
relationships with CF Industries and GM Metal Stamping.
Industrial alleges that before and after Davis left its
employ at the end of 2015, he interfered with its contractual
and business relationships with CF Industries and GM Metal
Stamping. Industrial alleges that Davis' interference
resulted in its loss of the business of CF Industries and GM
Metal Stamping. Industrial brings claims against Davis and
Davis Industrial Services, LLC of tortious interference with
contract and existing business relationships, unfair
competition, breach of the duty of good faith and fair
dealing, breach of fiduciary duty, and misappropriation of
trade secrets. Industrial seeks injunctive relief, and
compensatory and punitive damages.
filed this summary judgment motion asserting the lack of a
question of material fact concerning all of Industrial's
claims. In its response, Industrial expressly conceded two
claims: unfair competition and misappropriation of trade
secrets. (Pl. Resp. Mem. 5, 10, ECF No. 21). The Court
analyzes the remaining claims below.
motion for summary judgment may be filed by any party
asserting that there is no genuine issue of material fact and
that the movant is entitled to prevail as a matter of law on
any claim. Fed.R.Civ.P. 56. The movant bears the initial
burden of identifying those portions of the pleadings and
discovery on file, together with any affidavits, which it
believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). Once the movant carries its burden, the
burden shifts to the non-movant to show that summary judgment
should not be granted. Id. at 324-25. The non-movant
may not rest upon mere allegations or denials in its
pleadings but must set forth specific facts showing the
existence of a genuine issue for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986).
Because this case arises under the Court's diversity
jurisdiction, Mississippi substantive law applies. Cox v.
Wal-Mart Stores E., L.P., 755 F.3d 231, 233 (5th Cir.
Tortious Interference with Contract and Existing
Fifth Circuit has set out the elements necessary to establish
the tortious interference claims brought by Industrial.
Pursuant to Mississippi law, tortious interference with
business relations requires showing: “(1) the acts were
intentional and willful; (2) the acts were calculated to
cause damage to the plaintiffs in their lawful business; (3)
the acts were done with the unlawful purpose of causing
damage and loss without right or justifiable cause on the
part of the defendant (which constitutes malice); and (4)
actual loss and damage resulted.” PDN, Inc. v.
Loring, 843 So.2d 685, 688 (Miss. 2003). In addition to
the above elements, tortious interference with
contract includes malicious interference with a valid
contract. Levens v. Campbell, 733 So.2d 753, 759-61
Tire & Rubber Co. v. Farese, 423 F.3d 446, 458-59
(5th Cir. 2005) (emphasis in original).
alleges that Davis, using the information and relationships
he acquired while employed by Industrial, began negotiating
with CF Industries and GM Metal Stamping, and caused those
companies “to break ongoing contractual negotiations
with” Industrial. (Compl. 2, ECF No. 1-2). Davis was
able to acquire the business of CF Industries and GM Metal
Stamping for his own business, Davis Industrial Services,
LLC. (Id.). Industrial also alleges that Davis'
actions caused CF Industries and GM Metal Stamping to breach
their existing contracts with Industrial. (Id. at
argue that Industrial is unable to show any evidence of any
of the elements of these interference claims. Initially, the
Court notes that Industrial does not argue that there was an
existing, valid contract between itself and CF Industries or
GM Metal Stamping, and there is none in the record. From the
deposition testimony of Industrial's owner, it appears
that CF Industries chose to have Davis perform crane
inspections in September or October 2015 that Industrial
expected to perform. (Pl. Resp. Ex. A, at 116, ECF No. 20-1).
Also, Davis and Industrial's owner agree that Davis did
not have any business transactions or relationship with GM
Metal Stamping after Davis left Industrial. (Id. at
115-16; Def. Mot. Ex. A, at 2, ECF No. 18-1). Therefore, the
evidence in the record narrows Industrial's potential
claim to tortious interference with existing business
relationship between Industrial and CF Industries. The Court
finds the evidence sufficient to create a question of
material fact for the jury as to this claim.
interference with a business relationship “occurs when
a person unlawfully diverts prospective customers away from
one's business.” Par Indus., Inc. v. Target
Container Co.,708 So.2d 44, 48 (Miss. 1998). See
also Cenac v. Murry,609 So.2d 1257, 1268 (Miss. 1992)
(explaining that tortious interference with business
relationships occurs “when a wrongdoer unlawfully
diverts prospective customers away from ones business thereby
‘encouraging' customers to trade with
another.”). Industrial provides evidence that while
Davis was still employed by Industrial, he sent emails to CF
Industries telling them to put off their crane inspections
until he could contact them personally in thirty days. (Pl.
Resp. Ex. A, at 116, ECF No. 20-1). These are intentional and
willful acts, satisfying the first element. Whether the acts
were calculated to cause damage or done with the unlawful
purpose of causing damage and loss are questions of motive
and intent not appropriate for resolution on summary
judgment. See Cooper Tire & Rubber Co., 423 F.3d
at 459. Additionally, Industrial provides some evidence that
it suffered actual loss and damage as a result. Therefore,
the Court denies summary judgment in regard to