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

no precedential value and merely decide particular cases on the basis

of w ell-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the Court has determined that this opinion should not be published.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 emo tional distress, violation of the

Mississippi Actiona ble 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 to2

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; N ational

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 intende d 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 distr ict court dismissed the entire cause with

prejudice and had the case closed withou t any reference to the

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

ind icate 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 jurisdiction3

over the appeal. S ee, 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 div ersity 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. J ackson v. Johns-Manville Sales Corp.

, 781 F.2d 394,

396-98 (5th Cir. 1 986)(en banc), c ert. 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

(Secon d) of Torts and Louisiana jurisprudence was not erroneous.

Fu rther, 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. L yons 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 appr opriate 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).

D efendant accepts, for the purpose of the motion, all of the fa cts

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

legally sufficient to support a claim for intentional infliction of4

emotional distress or a claim under the Mississippi Actionable Words

Statute.

Under Mississippi law, an action for intentional infliction of

emotional distress l ies when the defendant’s intentional conduct

evokes foreseeable outrage or revuls ion. S ears, 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 ex treme in

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

regarded as atrocio us, and utterly intolerable in a civilized

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

agree with the district c ourt’s conclusion that the manager’s

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

outrageous conduct necessary to re cover damages for intentional

infliction of emotional distress. The cases cited by plaintiff are

unpersuasive because they involve c o nduct 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 o f 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 suffici ently severe to warrant

recovery, the manager’s acti o ns were outside the scope of his

employment, and the ma nager’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, should5

not have been dismissed because a question of fact regard ing the

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

Ordinarily, an employer is not liable under the actionable words

statut e for words uttered by an employee. D ixie Fire Ins. Co. v.

Betty

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

, 126

Miss. 854, 89 So. 669 (Miss. 1921). D ixie 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.