United States District Court, S.D. Mississippi, Northern Division
WARNOCK ENGINEERING, LLC, and RUDOLPH M. WARNOCK, JR. PLAINTIFFS
CANTON MUNICIPAL UTILITIES DEFENDANT
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT CANTON MUNICIPAL UTILITIES'
 MOTION FOR SUMMARY JUDGMENT, AND DENYING AS MOOT
DEFENDANT CANTON MUNICIPAL UTILITIES'  MOTION TO
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT are Defendant Canton Municipal Utilities'
Motion  to Dismiss and its Motion  for Summary
Judgment, which both seek dismissal of all claims advanced
against it by Plaintiffs Warnock Engineering, LLC, and
Rudolph M. Warnock, Jr. After due consideration of the
Motions , , related pleadings, the record, and
relevant legal authority, the Court finds that
Defendant's Motion  for Summary Judgment should be
granted in part and denied in part, and that Defendant's
Motion  to Dismiss should be denied as moot.
Plaintiffs' claims for copyright infringement, RICO
violations, injunctive relief, negligence, open account,
misappropriation, and breach of contract should be dismissed.
Plaintiffs' claims for wrongful discharge and for
retaliation in violation of the First Amendment under 42
U.S.C. § 1983 will proceed.
to the Third Amended Complaint , which is the operative
pleading in this case, Plaintiff Warnock Engineering, LLC
(“Warnock Engineering”), is an engineering firm
owned by Plaintiff Rudolph M. Warnock, Jr. (“Mr.
Warnock”). 3d Am. Compl.  at 4. Warnock
Engineering and Mr. Warnock (collectively,
“Plaintiffs” or “Warnock”) began
providing engineering services to Defendant Canton Municipal
Utilities (“CMU”) in January 2016 and worked on a
number of projects for CMU. Id. CMU is a public
utility commission within the City of Canton, Mississippi,
and is managed by a five-member Board of Commissioners.
See Pls.' Mem.  at 1.
allege that Warnock Engineering entered into three written
contracts with CMU: (1) an agreement for “General
Engineering Services, ” effective January 4, 2016 (the
“General Engineering Services Agreement”); (2) an
agreement for “Sewer and Water System
Improvements” entered into on November 8, 2016 (the
“Sewer/Water Agreement”); and (3) an agreement
for “Water & Sewer System Facility
Improvements” that was part of a “Five Point
Plan” submitted by Warnock Engineering, and which
became effective October 7, 2016 (the “Five Point Plan
Agreement”). 3d Am. Compl.  at 4. Plaintiffs
assert that the Board of Commissioners of CMU (the “CMU
Board”) terminated CMU's arrangements with all
engineers other than Plaintiffs in August 2016, making Mr.
Warnock the exclusive engineer for CMU. Id. at 5.
The Third Amended Complaint claims that Cleveland Anderson
(“Mr. Anderson”) was appointed to the CMU Board
on June 7, 2016, and was later removed in June 2017.
Id. at 4-5. At some point before he was removed, Mr.
Anderson became Chairman. Id. at 10.
maintain that during a meeting with Mr. Warnock on September
18, 2016, Mr. Anderson offered to arrange the murder of a
journalist in exchange for $10, 000.00. Later, on September
25, 2016, Mr. Anderson allegedly offered to arrange the
murder of the mayor of Madison, Mississippi, also for $10,
000.00. Id. at 4-5. Plaintiffs allege that prior to
Mr. Warnock proposing the Five Point Plan Agreement to the
CMU Board, Mr. Anderson asked Mr. Warnock “if Anderson
could get paid for his vote to approve the agreement, ”
a request which Mr. Warnock refused. Mr. Anderson allegedly
subsequently requested a $200, 000.00 kickback for supporting
the Five Point Plan Agreement in a meeting held on October 6,
2016. Id. at 6. Mr. Warnock again refused.
Id. Plaintiffs assert that they did not adjust the
price of the proposed $1, 474, 000.00 Five Point Plan
Agreement, and that it was approved by unanimous vote of the
CMU Board at its meeting held on October 7, 2016.
Id. at 7.
September 2016, the CMU Board unanimously voted to place Mr.
Warnock on the CMU Personnel Committee. Id. Mr.
Anderson also served on this committee. Id.
According to Plaintiffs, Mr. Anderson was heavily involved in
restructuring the CMU, including adding new departments and
new positions, and “insisted that CMU hire his wife in
a newly created General Counsel Department.”
Id. When outside counsel advised Mr. Anderson that
hiring his wife at CMU would be illegal, he withdrew her name
from consideration for possible employment. Id.
Warnock asserts that he expressed frustration to City of
Canton officials over Mr. Anderson's attempts to solicit
kickbacks and other improper benefits. Id. at 8. Mr.
Anderson allegedly retaliated by influencing other CMU
Commissioners and making motions to fire outside counsel and
terminate Plaintiffs from all CMU engineering and personnel
work. Id. at 9. As a result, Mr. Warnock was
informed by letters dated December 29, 2016, and January 17,
2017, that the CMU Board had voted to terminate its contracts
with Warnock Engineering. Id. at 10. Plaintiffs
accuse Mr. Anderson, as Chairman of the CMU Board, of
orchestrating the termination, id. at 10, because
Mr. Warnock had “refused to provide bribes and
kickbacks, and consent to the illegal and improper hiring of
relatives and friends, demanded by [Mr.] Anderson, ”
id. at 11.
to the Third Amended Complaint, after terminating its
contracts with Plaintiffs, Mr. Anderson and CMU continued to
use and distribute Plaintiffs' work product, even though
CMU had not paid invoices for work performed prior to, and
contract fees resulting from, the termination. Id.
Plaintiffs allege that CMU has no license or other right to
use Warnock Engineering's copyrights, work product, or
other intellectual property, unless and until all outstanding
amounts are paid by CMU. Id. At the time CMU
terminated the contracts, it purportedly owed Warnock
Engineering $2, 369, 477.28 for services performed prior to
the termination, exclusive of interest, costs, and
attorneys' fees, and also owed Warnock Engineering fees
in accordance with the termination provisions contained in
the Agreements. Id. at 11.
filed the original Complaint  in this case on March 9,
2017, and have amended their Complaint three times. The Third
Amended Complaint  asserts claims against CMU for
copyright infringement, vicarious and contributory
infringement, wrongful discharge, breach of contract, open
account, negligence, defamation, misappropriation of
advertising/commercial materials, and violations of the
Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. §§ 1962(b), and the
First Amendment under 42 U.S.C. § 1983. See 3d
Am. Compl.  at 19-23, 24-26. The Third Amended Complaint
 seeks a declaratory judgment that
(i) until full and final payment is made, Warnock and Warnock
Engineering are entitled to the full protection and ownership
of its work product under United States copyright law, 17
U.S.C. § 101 et seq., and (ii) to the extent
Warnock and/or Warnock Engineering have licensed any such
work product to CMU, such licenses have terminated and
expired because of CMU's failure to comply with their
Id. at 23.
filed a Motion  to Dismiss, asking the Court to dismiss
all of Plaintiffs' claims pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). CMU's Mot. 
at 1. Although Plaintiffs have opposed this
Motion, see Pls.' Resp.  & Mem. ,
they have dismissed their defamation claim, see
Notice  at 1.
subsequently filed a Motion  for Summary Judgment
pursuant to Federal Rule of Civil Procedure 56, again seeking
dismissal of Plaintiffs' claims. CMU's Mot.  at
1-2. CMU states that it filed this Motion “with the
understanding that the relief sought in its Motion to Dismiss
the Third Amended Complaint is not waived, ” and it
reserves the right to answer the Third Amended Complaint and
raise any affirmative or other defenses once the Motion to
Dismiss is resolved. Id. at 2.
have filed a Response  and Memorandum  in
opposition to the Motion  for Summary Judgment conceding
some, but not all, claims. Plaintiffs maintain that the
Motion  to Dismiss “is essentially mooted and
superseded by CMU's Motion for Summary Judgment in that
the parties have now presented materials outside of the
pleadings for consideration.” Pls.' Mem.  at 4
CMU's request for hearing
requested that the Court conduct a hearing on its Motion
 for Summary Judgment. See CMU's Mot. 
at 1. The Court finds that a hearing would not be helpful in
resolving CMU's Motion  and is not necessary.
Pursuant to Local Uniform Civil Rule 7(b)(3), the Court will
deny CMU's request for a hearing on its Motion  for
CMU's Motion  to Dismiss
Motion to Dismiss, filed pursuant to Federal Rule of Civil
Procedure 12(b)(1), was premised upon Plaintiffs'
purported lack of standing as to the copyright claims and was
otherwise based upon Rule 12(b)(6) for failure to state a
claim. Plaintiffs have since conceded the copyright and
several other claims. As for the remaining claims, the
Motions to Dismiss and for Summary Judgment argue
substantially the same bases for dismissal. For this reason,
CMU's Motion to Dismiss is moot in light of the
Court's resolution of the Motion for Summary Judgment.
CMU's Motion  for Summary Judgment
Relevant legal standard
Federal Rule of Civil Procedure 56(a), a “court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A fact is “material” if it is one that
might affect the outcome of the suit under governing law, and
a dispute is “genuine” if a jury could return a
verdict for the non-movant based upon the evidence in the
record. Renwick v. PNK Lake Charles, L.L.C., 901
F.3d 605, 611 (5th Cir. 2018).
party seeking summary judgment shows the non-movant's
case lacks support, the non-movant is tasked with coming
forward with “specific facts” showing a genuine
factual issue for trial. Id. A court considering a
summary judgment motion must “view the evidence in the
light most favorable to the non-moving party, drawing all
justifiable inferences in the non-movant's favor.”
Id. (quotation omitted). However, if a
non-movant's evidence is “merely colorable”
or “not significantly probative, ” summary
judgment remains appropriate. Certain Underwriters at
Lloyd's of London v. Lowen Valley View, L.L.C., 892
F.3d 167, 170 (5th Cir. 2018) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
Claims conceded by Plaintiffs
March 27, 2018, Plaintiffs filed a Notice  of Dismissal
of their defamation claim pursuant to Federal Rules of Civil
Procedure 41(a)(1)(A)(i) and 15(a)(2). Because no Defendant
had filed an answer or motion for summary judgment at that
time, the defamation claim was voluntarily dismissed.
response to CMU's Motion  for Summary Judgment,
Plaintiffs have conceded several other claims, including
their claims for copyright infringement, RICO violations,
injunctive relief, negligence, open account, and
misappropriation. See Pls.' Mem.  at
CMU's Motion  for Summary Judgment will be granted
as unopposed as to these claims, which will be dismissed.
This leaves for the Court's resolution Plaintiffs'
claims under state law for breach of contract and wrongful
discharge, and under 42 U.S.C. § 1983 for violation of
the First Amendment.
Plaintiffs' breach of contract claims under state
The parties' arguments
assert that CMU breached three contracts with Warnock
Engineering for engineering services: (1) the General
Engineering Services Agreement; (2) the Sewer/Water
Agreement; and (3) the Five Point Plan Agreement. 3d Am.
Compl.  at 33.
argues that no valid and binding contracts existed between it
and Plaintiffs. According to CMU, “[t]he alleged
contracts were not attached to the board minutes and . . .
were kept in a file that is separate and apart from the
minutes. Additionally, there were no terms mentioned in the
board minutes. Consequently, a contract or agreement between
CMU and Warnock Engineering does not exist.” CMU's
Mem.  at 27. CMU further posits that Plaintiffs cannot
establish a breach of these purported contracts because the
invoices that were submitted to CMU were for work performed
by a different legal entity, Warnock & Associates LLC, as
opposed to Warnock Engineering, the Plaintiff in this case.
Id. at 28.
dispute CMU's assertion that the three contracts do not
sufficiently appear in CMU's minutes, see
Pl.'s Mem.  at 18, 21-23, and insist that they are
entitled to recovery for their services under Mississippi
Code § 31-7-57(2), id. at 18-21. Plaintiffs
additionally argue that CMU is equitably estopped from
denying the contracts. Id. at 23-25.
The validity of contracts with public boards
Mississippi law, a claim for breach of contract has two
elements: “(1) the existence of a valid and binding
contract, and (2) a showing that the defendant has broken, or
breached it.” Maness v. K & A Enterprises of
Mississippi, LLC, 250 So.3d 402, 414 (Miss. 2018),
reh'g denied (Aug. 9, 2018) (quotation omitted).
Mississippi, “[a] public board ‘speaks and acts
only through its minutes.'” Kennedy v.
Claiborne Cty. by & through its Bd. of Supervisors,
233 So.3d 825, 829 (Miss. Ct. App. 2017), reh'g
denied (Aug. 15, 2017), cert. denied, 230 So.3d
1023 (Miss. 2017) (quoting Wellness, Inc. v. Pearl River
Cty. Hosp., 178 So.3d 1287, 1290 (Miss. 2015)).
“The minutes are the sole and exclusive evidence of
what the board did and must be the repository and the
evidence of their official acts.” Id.
awarded by a board or commission consisting of three or more
members such as CMU “must be determined or decided upon
only in or at a lawfully convened session, and the
proceedings must be entered upon the minutes, of the board or
commission.” Lange v. City of Batesville, 972
So.2d 11, 18-19 (Miss. Ct. App. 2008) (quoting Thompson
v. Jones Cty. Cmty. Hosp., 352 So.2d 795, 796 (Miss.
The reasons for the requirements aforesaid are: (1) That when
authority is conferred upon a board, the public is entitled
to the judgment of the board after an examination of a
proposal and a discussion of it among the members to the end
that the result reached will represent the wisdom of the
majority rather than the opinion or preference of some
individual member; and (2) that the decision or order when
made shall not be subject to the uncertainties of the
recollection of individual witnesses of what transpired, but
that the action taken will be evidenced by a written memorial
entered upon the minutes at the time, and to which all
the public may have access to see what was actually done.
Id. at 19 (emphasis in original).
Mississippi law, it is the responsibility of the entity
contracting with a public board, and not of the board itself,
to ensure the contract is legal and properly recorded in the
minutes. Wellness, Inc., 178 So.3d at 1291.
“[P]lacing a contract in a book other than the minute
book or in a person's office is insufficient to meet the
minutes requirement.” Dhealthcare Consultants, Inc.
v. Jefferson Cty. Hosp., 232 So.3d 192, 194 (Miss. Ct.
App. 2017), reh'g denied (Aug. 29, 2017),
cert. denied, 229 So.3d 714 (Miss. 2017). Moreover,
“simply placing a contract . . . in the side pocket of
the minute book at some later date is insufficient
to meet the ...