Local Rule 47.5 provides: “The publication of opinions that have

no precedential value and merely decide particular cases on the basis

of well-settled principles of law imposes needless expense on the

public and burdens on the legal profession.” Pursuant to that Rule,

the Court has determined that this opinion should not be published.

UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 95-60060

Summary Calendar

_____________________________________

CHARLES LAWSON

Plaintiff-Appellant

VERSUS

HEIDELBERG EASTERN, INC., dba 

 Plumrose, U.S.A.

Defendant-Appellee

______________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi, Aberdeen

(1:93 CV 243 S D)

______________________________________________________

(October 20, 1995)

Before HIGGINBOTHAM, DUHÉ, AND EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

Plaintiff-Appellant sued his employer, a diverse defendant, for

intentional infliction of emotional distress, violation of the

Mississippi Actionable Words Statute and failing to carry out the

employment contract in good faith. Plaintiff alleged that a

managerial employee cursed him, threatened to “blow his head off” and

challenged him to a fistfight when Plaintiff complained that the

manager crowded his work space. Plaintiff’s claims were dismissed by

the district court by summary judgment because the manager’s actions,

while improper, were not sufficiently extreme or outrageous to
2

support a claim for intentional infliction of emotional distress and

because a corporate employer cannot be held liable under the

Mississippi Actionable Words Statute for the words of its employee.

Lawson v. Heidelberg Eastern, 872 F. Supp. 335 (N.D. Miss. 1995).

After reviewing the record and arguments of both parties, we affirm.

We must determine sua sponte our jurisdiction. Morales v. Pan

American Life Ins. Co., 914 F.2d 83, 85 (5th Cir. 1990). We have

jurisdiction over final decisions of the district court, i.e.

decisions which dispose of the entire controversy and leave nothing

further for the court to do in the cause. 28 U.S.C. § 1291; National

Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex.,

40 F.3d 698 (5th Cir. 1994). An order may be “final” even though

the district court does not formally include judgment on a claim that

has been abandoned when the court intended to end the litigation.

Vaughn v. Mobil Oil Exploration & Producing Southeast, Inc., 891 F.2d

1195, 1198 (5th Cir. 1990); Armstrong v. Trico Marine, Inc., 923 F.2d

55 (5th Cir. 1991). 

Here, the district court dismissed the entire cause with

prejudice and had the case closed without any reference to the

contract of employment claim. While the record before us does not

indicate whether the contract claim was included in Defendant’s

motion for summary judgment, the district court’s ten-page

typewritten opinion does not address the claim, Plaintiff does not

challenge the finality of the district court’s judgment and Plaintiff

filed this appeal pursuant to 28 U.S.C. §1291 which confers appellate

jurisdiction over final judgments. We therefore conclude that

Plaintiff abandoned the employment contract claim, that the district

court’s judgment is a final judgment and that we have jurisdiction
3

over the appeal. See, National Ass’n of Gov’t Employees, 40 F.3d at

706.

Appellant first argues that the district court improperly relied

on Louisiana law and the Restatement (Second) of Torts in this

Mississippi-based diversity action. Absent a decision directly on

point from the Mississippi Supreme Court, a federal court sitting in

diversity must consider the lower court rulings, the general rule,

the rules of other jurisdictions and other available legal resources

and decide the issue based upon what the Mississippi Supreme Court is

likely to rule. Jackson v. Johns-Manville Sales Corp., 781 F.2d 394,

396-98 (5th Cir. 1986)(en banc), cert. denied, 478 U.S. 1022, 106

S.Ct. 3339, 92 L.Ed. 2d 743 (1986). Because no Mississippi court

has specifically addressed cursing and threats of fistfighting in an

employment setting, the district court’s reliance on the Restatement

(Second) of Torts and Louisiana jurisprudence was not erroneous.

Further, the Mississippi Supreme Court was guided in part by the

first Restatement of Torts in fashioning its rule of law for

intentional infliction of emotional distress. Lyons v. Zale Jewelry

Co., 246 Miss. 139, 150 So. 2d 154 (Miss. 1963).

Plaintiff also argues that the quality of the manager’s conduct

cannot be evaluated by the court on motion for summary judgment.

Summary judgment, however, is appropriate when the moving party

establishes that there is no genuine issue of material fact and it is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(b).

Defendant accepts, for the purpose of the motion, all of the facts

alleged by plaintiff. We must decide only whether these facts are

legally sufficient to support a claim for intentional infliction of
4

emotional distress or a claim under the Mississippi Actionable Words

Statute. 

Under Mississippi law, an action for intentional infliction of

emotional distress lies when the defendant’s intentional conduct

evokes foreseeable outrage or revulsion. Sears, Roebuck & Co. v.

Devers, 405 So. 2d 898, 902 (Miss. 1981); White v. Walker, 950 F.2d

972 (5th Cir. 1991). “Liability has been found only where the

conduct has been so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized

community.” Restatement (Second) of Torts §46, cmt. d (1965). We

agree with the district court’s conclusion that the manager’s

actions, while improper, do not rise to the level of extreme and

outrageous conduct necessary to recover damages for intentional

infliction of emotional distress. The cases cited by plaintiff are

unpersuasive because they involve conduct more outrageous than an

employment dispute between coemployees or were decided according to

behavioral standards over fifty years old which are not necessarily

applicable in determinations of outrageousness by a contemporary

court. White v. Walker, 950 F.2d 972 (5th Cir. 1991). 

Appellee also urges that summary judgment is proper because

Plaintiff’s mental distress was not sufficiently severe to warrant

recovery, the manager’s actions were outside the scope of his

employment, and the manager’s actions were not ratified by

Defendant. Because the nature of the manager’s conduct is

dispositive, we do not address these issues. 

Plaintiff argues that his claim for violations of the

Mississippi Actionable Words Statute, Miss. Code Ann. §95-1-1, should
5

not have been dismissed because a question of fact regarding the

applicability of the statute to an employer exists. We disagree.

Ordinarily, an employer is not liable under the actionable words

statute for words uttered by an employee. Dixie Fire Ins. Co. v.

Betty, 101 Miss. 880, 58 So. 705 (Miss. 1912); Neely v. Payne, 126

Miss. 854, 89 So. 669 (Miss. 1921). Dixie suggests the possibility,

however, that a principal may be held liable for the words of an

employee if the words were spoken at the command of the employer.

Plaintiff provides no evidence that the manager’s words were spoken

at the command of Defendant. Instead, Plaintiff asks us to apply the

common law standard for respondeat superior liability. This standard

is inapplicable.

AFFIRMED.