United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.
Farms, Inc. (“Tyson”) seeks summary judgment 
on Plaintiff Thang Quoc Pham's claims. For the following
reasons, the Court grants Tyson's motion as to the
breach-of-contract, anticipatory-breach, and
negligent-infliction-of-emotional-distress claims. The motion
is otherwise denied. Finally, the Court denies Tyson's
related Motion to Strike .
Facts and Procedural History
case arises from Pham's contract to raise
broilers-i.e., chickens-for Tyson. In November 2005,
Pham entered into a broiler-production contract with Tyson
for a seven-year term. 2005 Contract [43-1] at 3-4. After
Pham completed his first seven years, Tyson invited him to
renew his contract, and he signed the 2012 Broiler Production
Contract (“Contract”). 2012 Contract [43-1] at
28-29. Pham says that his relationship with Tyson then went
south. As examples, Pham cites multiple instances where Tyson
refused to allow him to use his automated chicken feeder
(“Chickmate”) and instead required him to
handfeed approximately 125, 000 chickens. Ultimately, around
mid-July 2015, Pham asserts that Tyson representatives
threatened to pull out of the Contract unless Pham terminated
it and sold his farm. Under stress from Tyson's purported
threat, Pham located a purchaser and exited the
by Tyson's alleged conduct, Pham sued Tyson asserting
claims for breach of contract, tortious breach of contract,
breach of the duty of good faith and fair dealing, and
negligent/intentional infliction of emotional distress. After
discovery, Tyson moved for summary judgment  as to all
claims, and Pham responded in opposition [46, 47]. The
parties then presented their positions during oral argument,
after which the Court instructed them to submit supplemental
briefs. They did so, see Def.'s Mem. ;
Pl.'s Mem. , and Tyson has further moved to strike
Pham's supplemental expert affidavit, see
Def.'s Mot. . The Court has subject-matter and
personal jurisdiction and is ready to rule on these pending
Motion for Summary Judgment
judgment is warranted when evidence reveals no genuine
dispute regarding any material fact and that the moving party
is entitled to judgment as a matter of law. The rule
“mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails
to make a showing sufficient 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. v. Catrett, 477 U.S. 317, 322 (1986).
party moving for summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Id. at 323.
The nonmoving party must then “go beyond the
pleadings” and “designate ‘specific facts
showing that there is a genuine issue for trial.'”
Id. at 324 (citation omitted). In reviewing the
evidence, the court resolves factual controversies in favor
of the nonmovant, “but only when . . . both parties
have submitted evidence of contradictory facts.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc). When such contradictory facts exist,
the court may “not make credibility determinations or
weigh the evidence.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000). Conclusory
allegations, speculation, unsubstantiated assertions, and
legalistic arguments have never constituted an adequate
substitute for specific facts showing a genuine issue for
trial. TIG Ins. Co. v. Sedgwick James of Wash., 276
F.3d 754, 759 (5th Cir. 2002); Little, 37 F.3d at
1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.
summary-judgment response narrows the issues to some extent.
First, he expressly concedes his cause of action for
anticipatory breach. See Pl.'s Mem.  at 34.
Second, Pham offers no response to Tyson's argument
regarding his negligent-infliction-of-emotional-distress
claim. The Court finds Pham waived this claim and that it is
otherwise due for dismissal. See Criner v. Tex.-N.M.
Power Co., 470 Fed.Appx. 364, 368 (5th Cir. 2012)
(“If a party fails to assert a legal reason why summary
judgment should not be granted, that ground is waived and
cannot be considered or raised on appeal.” (quoting
Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir.
2002))). The remaining claims will be addressed in turn.
Breach of Contract
says summary judgment is warranted on Pham's
breach-of-contract claim because it has not breached any
specific Contract provision. In Mississippi, a plaintiff
asserting breach of contract must show: “1. the
existence of a valid and binding contract; and 2. that the
defendant has broken, or breached it; and 3. that ‘the
plaintiff' has been thereby damaged monetarily.”
Bus./Commc'ns, Inc. v. Banks, 90 So.3d 1221,
1224-25 (Miss. 2012) (quoting Warwick v. Matheney,
603 So.2d 330, 336 (Miss. 1992)). When determining whether a
breach occurred, the Mississippi Supreme Court has repeatedly
the “four corners” test is applied, wherein the
reviewing court looks to the language that the parties used
in expressing their agreement. . . . Our concern is not
nearly so much with what the parties may have intended, but
with what they said, since the words employed are by far the
best resource for ascertaining the intent and assigning
meaning with fairness and accuracy. Thus, the courts are not
at liberty to infer intent contrary to that emanating from
the text at issue. On the other hand, if the contract is
unclear or ambiguous, the court should attempt to harmonize
the provisions in accord with the parties' apparent
intent. Only if the contract is unclear or ambiguous can a
court go beyond the text to determine the parties' true
intent. The mere fact that the parties disagree about the
meaning of a contract does not make the contract ambiguous as
a matter of law.
One S., Inc. v. Hollowell, 963 So.2d 1156, 1162-63
(Miss. 2007) (internal citations and quotation marks
omitted). When the language is ambiguous, “the
subsequent interpretation presents a question of fact for the
jury.” Neider v. Franklin, 844 So.2d 433, 436
Pham says Tyson breached the Contract in three ways: (1)
Tyson's threat to terminate the Contract violated its
termination provisions; (2) banning Pham from using Chickmate
violated the Contract's best-efforts provision; and (3)
Tyson's failure to train Pham regarding Chickmate
likewise infringed on the Contract's best-efforts
provision. See Pl.'s Mem.  at 21-27.
Pham's first theory falls short and the other two are not
properly before the Court.
Contract included the following provisions regarding
A. In addition to the right to cancel this Contract set forth
in paragraph 1, Producer has the right to terminate this
Contract at any time with no less than ninety (90) days
written notice. Company has the right to terminate this
Contract upon default by Producer. The following constitute
events of default by Producer:
i. Use of abusive or threatening language with or threat of
physical harm to Company's representatives.
ii. Endangering the health or welfare of Company's
chickens, or altering or supplementing Company's feed,
medication, or administration schedule(s).
iii. Selling, collateralizing, or in any manner encumbering
or preventing access of Company to Company's chickens,
feed, or medication.
iv. Failure to comply with any provision of this Contract,
including but not limited to compliance with all applicable
environmental and litter management laws, rules, regulations,
and ordinances, and all requirements and programs contained
in the attached Schedules.
B. Company will give notice of default to Producer. If
Company exercises its right to terminate this Contract,
Company will provide a written termination notice that will
become effective 90 days from the date thereof. Upon default,
Company may take immediate possession of Company's
chickens, feed, and medication without further notice, delay,
or legal process. . . . Company shall not be obligated to
deliver chickens to Producer subsequent to providing notice
of default. No waiver by Company of any default will operate
as a waiver of any other default, and Company's rights
and remedies are cumulative and not exclusive of any other
right provided by law of equity.
2012 Contract [1-2] at 2-3.
was not in default, and Tyson never activated the termination
provisions of the Contract. Instead, it continued to perform
under the Contract for an additional year after it allegedly
threatened to end the agreement. Pham Dep. [46-1] at 70-71.
So technically speaking, Tyson never breached the actual
terms of the agreement.
Pham says the alleged threats had the effect of terminating
the contract without satisfying the termination clause.
Pl.'s Mem.  at 23. In some factual contexts, such a
theory might be relevant to an anticipatory breach, but Pham
is not making that claim. Pl.'s Mem.  at 34. Pham
instead suggests what sounds like a constructive-breach
theory. He does not, however, cite any ...