IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60491

H. KENNETH LEFOLDT, JR., in his capacity as Trustee for the Natchez 

Regional Medical Center Liquidation Trust, 

 Plaintiff - Appellant

v.

DONALD RENTFRO; CHARLES MOCK; WILLIAM HEBURN; LEROY 

WHITE; JOHN SERAFIN; LINDA GODLEY; LIONEL STEPTER; LEE 

MARTIN; WILLIAM ERNST; JENNIFER RUSS, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Mississippi

Before JONES and OWEN, Circuit Judges, and ENGELHARDT,

∗ District 

Judge.

EDITH H. JONES, Circuit Judge:

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT TO THE SUPREME COURT OF MISSISSIPPI, 

PURSUANT TO MISSISSIPPI RULE OF APPELLATE PROCEDURE 20. 

 

∗ District Judge of the Eastern District of Louisiana, sitting by designation.

United States Court of Appeals

Fifth Circuit

FILED

April 6, 2017

Lyle W. Cayce

Clerk

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TO THE SUPREME COURT OF MISSISSIPPI AND THE HONORABLE 

JUSTICES THEREOF:

The above-styled diversity case involves outcome-determinative 

questions of Mississippi law. We have not been able to identify clear 

controlling precedents from the Supreme Court of Mississippi that would 

resolve this case. This Court hereby certifies questions of law to the Supreme 

Court of Mississippi for instructions concerning said questions of law, based on 

the facts recited herein, pursuant to Mississippi Rule of Appellate Procedure 

20.

STYLE OF THE CASE

The style of this case is Lefoldt, Jr. v. Rentfro, 16-60491, in the United 

States Court of Appeals for the Fifth Circuit. The case is on appeal from a 

judgment of the United States District Court for the Southern District of 

Mississippi. 

STATEMENT OF FACTS

Natchez Regional Medical Center (“NRMC”) is a public, not-for-profit, 

community hospital owned by Adams County, Mississippi. In 2014, NRMC 

filed bankruptcy under Chapter 9 of the Bankruptcy Code, and a Trustee

(Lefoldt) was appointed for the liquidation trust and given the right to pursue 

all claims or causes of action on behalf of NRMC. 

Appellant, the Trustee, sued the former directors and officers 

(collectively, “Officers”) of NRMC alleging that the Officers breached their 

fiduciary duty of care, loyalty, and good faith. The Trustee’s claims against the 

Officers arise from the performance of their duties on behalf of NRMC. In his 

complaint the Trustee asserts that the defendants were grossly negligent or 

abdicated their responsibilities in failing to bill patients for services rendered, 

respond to federal audits, and properly oversee the credentialing of its doctors.

Among other allegations, the Trustee contends that NRMC’s Chief Financial 

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Officer did not have the formal training or experience in regulatory matters 

necessary to serve as the hospital’s CFO. As a result of the Officers’

misfeasance, the Trustee states that the hospital lost millions of dollars in 

revenue. 

The Trustee seeks to recover damages for the benefit of NRMC’s 

creditors. The parties do not dispute that: (1) NRMC qualifies as a “government 

entity” under the MTCA, (2) the defendants qualify as “employees” of NRMC, and 

(3) the “act or omissions” complained of occurred within the course and scope of 

the defendants’ employment with NRMC.

The Officers moved to dismiss, arguing that they are immune from 

liability under the Mississippi Tort Claims Act (“MTCA”), Miss. Code Ann. 

§ 11-46-1, et seq. The district court granted the motion to dismiss, determining 

that the plain language of the MTCA bars the Trustee’s claims against the 

Officers. The Trustee appealed. 

DISCUSSION

The MTCA protects employees of a governmental entity from being held 

personally liable for acts or omissions that occur within the course and scope of 

their employment. The Trustee does not dispute that the relevant acts or 

omissions occurred within the course and scope of the Officers’ employment, but 

he insists that the Officers were grossly negligent in the execution of, or failed to 

perform, their duties.

The Trustee argues that the purpose behind the MTCA and the legislative 

intent of the statute are to “provid[e] relief to injured citizens,” Reaves ex rel. Rouse 

v. Randall, 729 So.2d 1237, 1240 (Miss. 1998), and to “conserv[e] state funds.” 

Vortice v. Fordice, 711 So.2d 894, 896 (Miss. 1998). The scope of the MTCA should 

accordingly not bar public entities from suing their own employees. The Trustee 

also contends that applying the MTCA against the public entity leads to absurd 

results, e.g. rendering meaningless the statute’s requirements for exhaustion or 

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remedies and notice to the affected government entity. Miss. Code Ann. § 11-46-

1(1), (2). The Officers counter that the statute unambiguously bars the Trustee’s 

suit. The Officers further argue that the Trustee’s allegations do not support a 

claim for breach of fiduciary duty but at most support a claim for negligence or 

mismanagement.

In 1982, the Supreme Court of Mississippi abolished the judicially created 

doctrine of sovereign immunity, reasoning that the “control and policing” of 

sovereign immunity is a legislative responsibility. Pruett v. City of Rosedale, 

421 So.2d 1046, 1047 (Miss. 1982). The legislature responded to this decision by 

enacting the Mississippi Tort Claims Act, a comprehensive tort claims act that

provides for a limited waiver of sovereign immunity. Jackson v. Daley, 739 So. 2d 

1031, 1040 (Miss. 1999).

The MTCA provides in relevant part:

An employee may be joined in an action against a governmental 

entity in a representative capacity if the act or omission complained 

of is one for which the governmental entity may be liable, but no 

employee shall be held personally liable for acts or omissions 

occurring within the course and scope of the employee's duties. For 

the purposes of this chapter an employee shall not be considered as 

acting within the course and scope of his employment and a 

governmental entity shall not be liable or be considered to have 

waived immunity for any conduct of its employee if the employee's 

conduct constituted fraud, malice, libel, slander, defamation or any 

criminal offense.

Miss. Code Ann. § 11-46-7(2). The MTCA is the exclusive remedy against a 

governmental entity or employee pursuant to its specific terms. § 11-46-7(1).

“Employee” is defined to include “any officer [of] . . . a political subdivision of the 

state . . . including elected or appointed officials.” § 11-46-1(f). A community 

hospital is considered a “governmental entity” and a “political subdivision” under 

the MTCA. § 11-46-1(g) & (i). Community hospitals are governed by the MTCA 

for “any cause of action which accrues . . . on account of any wrongful or tortious 

act or omission . . .” § 41-13-11(5).

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Some states’ courts have held that a claim for breach of fiduciary duty is 

not subject to the applicable state tort claims act. Randich v. Lockport Twp. 

Firefighters' Pension Bd., 2012 IL App (3d) 120032-U, ¶ 41. (“The [Illinois] Tort 

Immunity Act does not apply to breach of fiduciary duty claims because they are 

not torts.”). Mississippi may not be such a state. Mississippi courts have 

described claims for breach of fiduciary duty and gross negligence as torts that 

are subject to the MTCA. Union Nat'l Life Ins. Co. v. Crosby, 870 So. 2d 1175, 

1180 (Miss. 2004) (describing breach of fiduciary duty as a tort); Hardy v. City of 

Senatobia, Miss., No. 2:06CV81-P-A, 2007 WL 3245163, at*3 (N.D. Miss. Nov. 1, 

2007). 

In any event, we have not identified a Mississippi decision that resolves 

whether the MTCA bars a governmental entity from suing its own employees.1

But see People ex rel. Harris v. Rizzo, 214 Cal. App. 4th 921, 939, 154 Cal. Rptr. 

3d 443, 460 (2013) (holding that “[i]t would turn the Tort Claims Act on its head” 

to apply the Act to a public entity suing its employees for acting outside of their 

scope of employment). Nor have the Mississippi courts considered whether the 

MTCA shields employees when they are not sued in regard to acts or omissions 

“for which the governmental entity may be liable.” Miss. Code Ann. § 11-46-7(2). 

For the Trustee’s suit to proceed, it is necessary to determine whether the MTCA 

ties the hands of the sovereign from pursuing claims against its servants.

“Because this case raises important questions concerning the scope of 

sovereign immunity in Mississippi, we defer decision in the cause and certify 

our questions to that Court.” Anderson v. Jackson Mun. Airport Auth., 

645 F.2d 401, 401 (5th Cir. 1981).

 

1 See, e.g., Natchez Reg’l Med. Ctr. v. Quorum Health Res., LLC, No. 5:09-CV-207-

DCB-JMR, 2010 WL 3324955 (S.D. Miss. Aug. 20, 2010) (“This Court can find no authority 

for applying the MTCA to a case in which the state is suing a private corporation [that was 

hired by NRMC to provide management services]”).

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CERTIFICATION

We certify two questions to the Mississippi Supreme Court:

1) Does the MTCA furnish the exclusive remedy for a bankruptcy trustee 

standing in the shoes of a public hospital corporation against the employees or

directors of that public corporation?

2) If the answer to the foregoing question is affirmative, does the MTCA

permit the trustee to pursue any of the claims identified in his complaint 

against the officers and directors of NRMC in their personal capacity?

We disclaim any intention or desire that the Supreme Court of 

Mississippi confine its reply to the precise form or scope of the question 

certified. The answer provided by the Supreme Court of Mississippi will 

determine the issues on appeal in this case. The record in this case and copies 

of the parties’ briefs are transmitted herewith.

The panel retains cognizance of the appeal in this case pending response 

from the Supreme Court of Mississippi, and the Court hereby certifies to the 

Supreme Court of Mississippi the above questions of law.

QUESTIONS CERTIFIED TO THE SUPREME COURT OF MISSISSIPPI.

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