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Pham v. Tyson Farms, Inc.

United States District Court, S.D. Mississippi, Northern Division

August 30, 2018

THANG QUOC PHAM PLAINTIFF
v.
TYSON FARMS, INC. DEFENDANT

          ORDER

          DANIEL P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.

         Tyson Farms, Inc. (“Tyson”) seeks summary judgment [43] 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 [58].

         I. Facts and Procedural History

         This 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 broiler-production business.

         Aggrieved 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 [43] 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. [56]; Pl.'s Mem. [57], and Tyson has further moved to strike Pham's supplemental expert affidavit, see Def.'s Mot. [58]. The Court has subject-matter and personal jurisdiction and is ready to rule on these pending motions.

         II. Motion for Summary Judgment

         A. Standard

         Summary 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).

         The 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. 1993).

         B. Analysis

         Pham's summary-judgment response narrows the issues to some extent. First, he expressly concedes his cause of action for anticipatory breach. See Pl.'s Mem. [47] 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.

         1. Breach of Contract

         Tyson 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 stated that

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 (Miss. 2003).

         Here, 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. [47] at 21-27. Pham's first theory falls short and the other two are not properly before the Court.

         a. Threatened Termination

         The Contract included the following provisions regarding termination:

         9. Termination.

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.

         Pham 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.

         But Pham says the alleged threats had the effect of terminating the contract without satisfying the termination clause. Pl.'s Mem. [47] 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. [47] at 34. Pham instead suggests what sounds like a constructive-breach theory. He does not, however, cite any ...


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