United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER DENYING QUALITY
ENGINEERING SERVICES, INC.'S MOTION FOR SUMMARY
GUIROLA, JR. UNITED STATES DISTRICT JUDGE
THE COURT is the  Motion for Summary Judgment
filed by the defendant Quality Engineering Services, Inc.
(QES) in this lawsuit that arose out of a construction
project at the Port of Gulfport, Mississippi. The parties
have fully briefed the Motion. After reviewing the
submissions of the parties, the record in this matter, and
the applicable law, the Court finds that the Motion for
Summary Judgment must be denied, because QES has not met its
initial burden of demonstrating that material facts are not
plaintiff, Southern Industrial Contractors, LLC, served as
the general contractor for the West Pier Facilities project
at the Port of Gulfport, Mississippi. It filed this lawsuit
against the project's owner, Mississippi State Port
Authority (MSPA), as well as the project's consultants
and engineers - Neel-Schaffer, Inc., CH2M, T.L. Wallace
Construction, Inc., Thompson Engineering, Inc., W.G. Yates
& Sons Construction Company, Roy Anderson Corp., Yates
Anderson, JV, and QES. Southern Industrial alleges that these
defendants failed to provide notice of a large underground
debris field at the project site. Southern Industrial claims
it was required to excavate the debris, which made the
project much more expensive and time-consuming. QES filed the
present Motion for Summary Judgment.
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).
SOUTHERN INDUSTRIAL'S BREACH OF CONTRACT CLAIM
contract existed between QES and Southern Industrial, but
Southern Industrial asserts that it is a third-party
beneficiary of the contract between QES and MSPA. It argues
that QES breached its duty to notify other contractors on the
project of the debris field that caused extra expense and
delay during the project. “Third-party-beneficiary
status arises from the terms of the contract.”
Simmons Hous., Inc. v. Shelton ex rel.
Shelton, 36 So.3d 1283, 1286 (Miss. 2010).
In order for a third person beneficiary to have a cause of
action, the contracts must have been entered into for his
benefit, or at least such benefit must be the direct result
of the performance within the contemplation of the parties as
shown by its terms. There must have been a legal obligation
or duty on the part of the promisee to such third person
beneficiary. This obligation must have a legal duty which
connects the beneficiary with the contract. In other words,
the right (of action) of the third[-]party beneficiary to
maintain an action on the contract must spring from the terms
of the contract itself.
Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1146
(Miss. 2004). Therefore, the following three factors must be
present to create third-party beneficiary status:
(1) the contract between the original parties was entered for
that person's or entity's benefit, or the original
parties at least contemplated such benefit as a direct result
of performance; (2) the promisee owed a legal obligation or
duty to that person or entity; and (3) the legal obligation
or duty connects that person or entity with the contract.
Id. “[A] third party beneficiary may sue for a
breach of the contract only when the condition which is
alleged to have been broken was placed in the contract for
his direct benefit.” Rosenfelt v. Miss. Dev.
Auth., 262 So.3d 511, 519 (Miss. 2018). “A mere
incidental beneficiary acquires by virtue of the contractual
obligation no right against the promisor or promisee.”
Id. Therefore, an individual or entity who did not
sign the contract, was not alluded to in the contract, and
received no direct benefit from the contract does not acquire
third-party beneficiary status. Simmons Hous.,
Inc., 36 So.3d at 1286-87.
present lawsuit, the parties do not dispute that QES's
scope of work on the West Pier Facilities project was
governed by Task Order Number 9, which provided that QES
would “provide Construction Material Testing (CMT) and
inspection services” for the project. (Def.'s Mot.
Ex. B to Ex. 5, ECF No. 194-5.) The Task Order required
QES's work to conform to ...