IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60447

FOUNTAINBLEAU MANAGEMENT SERVICES, L.L.C., a Louisiana 

Limited Liability Company; EVERGREEN APARTMENTS, L.L.C., an 

Illinois Limited Liability Company; EVERGREEN APARTMENTS, L.L.C., a 

Delaware Limited Liability Company,

 Plaintiffs - Appellants

v.

CITY OF TUPELO; TUPELO POTW,

 Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:13-CV-157

Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.

PER CURIAM:*

Plaintiffs–Appellants own and operate Evergreen Square, a 257-unit 

apartment complex in Tupelo, Mississippi. Defendants–Appellees own and 

operate the public sewer that services Evergreen Square. After repeated 

sewage backups at Evergreen Square, Plaintiffs–Appellants sued Defendants–

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 13, 2017

Lyle W. Cayce

Clerk

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Appellees, alleging that the backups were caused by Defendants–Appellees’ 

negligence in designing, planning, constructing, and maintaining the public 

outfall sewer line. The district court granted summary judgment for 

Defendants–Appellees, concluding, in relevant part, that they enjoyed 

discretionary function immunity under the Mississippi Tort Claims Act. 

Finding no reversible error, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Evergreen Apartments, LLC1 is the owner and Plaintiff 

Fountainbleau Management Services, LLC is the manager of Evergreen 

Square. The City of Tupelo and Tupelo POTW2 (collectively, the City) own and 

operate the public outfall sewer line that services Evergreen Square pursuant 

to a National Pollutant Discharge Elimination System Permit (the NPDES 

Permit) issued by the Mississippi Department of Environmental Quality 

(MDEQ). The NPDES Permit incorporates a myriad of conditions from various 

state and federal water pollution control laws. In short, these conditions 

require the City to operate and maintain its sewage system in a manner that 

avoids discharge into waters of the state of Mississippi, the jurisdictional 

waters to which the Mississippi Water Pollution Control Law (the MWPCL) 

applies, and into navigable waters, the jurisdictional waters to which the 

federal Clean Water Act applies, unless that discharge meets secondary 

treatment standards. 

In 2008, Evergreen Square experienced problems with sewage backups, 

leading Evergreen Square residents to file dozens of complaints with the City. 

 

1 Evergreen Apartments, LLC, a Delaware limited liability company, is the current 

owner of Evergreen Square, and Plaintiff–Appellant Evergreen Apartments, LLC, an Illinois 

limited liability company, was the owner from 2001 to 2005. 

2 Tupelo POTW is a publicly owned treatment works—that is, a municipal sewage 

system—and a subdivision of the City of Tupelo. The City asserted in the district court that 

Tupelo POTW was not a legal entity and, therefore, lacked the capacity to be sued. But the 

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In June, City inspectors met with Evergreen Square representatives about the 

backups, and instructed them to bring Evergreen Square up to code within 30 

days by repairing or replacing their private sewer lines. Evergreen Square (at 

least partially) complied with the City’s directive, completing the repair or 

replacement of certain sewer lines in October. The City asserts that these 

efforts cured the source of the backups, but the record indicates that Evergreen 

Square continued to experience backups. 

After giving the City the required pre-suit notice, Plaintiffs initiated the 

instant suit on August 23, 2013, asserting, in relevant part, a claim for 

negligence under the Mississippi Tort Claims Act (MTCA) arising from the 

City’s negligent “planning, developing, constructing, and/or maintaining the 

outfall sewer.”3 According to Plaintiffs’ expert engineer, the City’s public 

outfall sewer line was impermissibly shallow, causing the slopes of Evergreen 

Square’s private sewer lines to be insufficient or non-existent. Additionally, 

the expert opined that the City’s public outfall sewer line “surcharges and 

backs up into Evergreen Square’s private line causing flooding,” which 

Plaintiffs attributed to missing manhole covers, insufficient capacity in the 

outfall sewer line, and breaks in the line allowing intrusions of storm water 

during weather events. 

On February 7, 2014, the City moved for dismissal or, in the alternative, 

summary judgment, asserting Plaintiffs’ negligence claim was barred by, 

among other things, immunity pursuant to the MTCA’s discretionary function

 

district court rejected this argument. The City does not challenge that determination on 

appeal. 

3 Plaintiffs also asserted a claim for breach of contract predicated on an alleged 

violation of the NPDES Permit. The district court dismissed Plaintiffs’ breach of contract 

claim, and Plaintiffs have not pursued that claim on appeal. 

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exemption.4 Because both parties attached various non-pleading exhibits to 

their filings, the district court treated the City’s motion as one for summary 

judgment and granted it on August 22, finding that Plaintiffs’ negligence claim 

was, in fact, barred by discretionary function immunity. This court vacated 

the grant of summary judgment on March 1, 2015, based on a “change in 

relevant state law during the pendency of [the] appeal.” Fountainbleau Mgmt. 

Servs., LLC v. City of Tupelo, 599 F. App’x 207, 207 (5th Cir. 2015) (per curiam) 

(quoting Moorhead v. Mitsubishi Aircraft Int’l, Inc., 828 F.2d 278, 289 (5th Cir. 

1987)). This court directed the district court on remand to reconsider the City’s 

motion for summary judgment in light of Boroujerdi v. City of Starkville, 158 

So. 3d 1106 (Miss. 2015), and Brantley v. City of Horn Lake, 152 So. 3d 1106 

(Miss. 2014), two recent Mississippi Supreme Court decisions construing the 

MTCA’s discretionary function exemption. Id.

On remand, the district court requested supplemental briefs addressing 

the change in the law regarding the MTCA’s discretionary function exemption 

and its impact, if any, on the City’s motion. After receiving the supplemental 

briefing, the district court again granted summary judgment for the City, 

holding, in relevant part, that Plaintiffs’ negligence claim was barred by 

discretionary function immunity.5 The district court found that, under the 

relevant changes in Mississippi law, “the discretionary immunity doctrine does 

 

4 The City also asserted that Plaintiffs’ negligence claim was barred by the MTCA’s 

one-year limitations period. 

5 The district court also held that (1) Plaintiffs’ “negligent planning, design, and 

construction” claim was barred by the MTCA’s one-year limitations period, and (2) the 

continuing tort doctrine applied to Plaintiffs’ “negligent maintenance” claim and, thus, that 

claim was not barred by MTCA’s one-year limitations period. Plaintiffs argue that the 

district court erred in concluding that the doctrine of equitable estoppel did not apply to bar 

the City from invoking the statute of limitations defense. The City counters that the district 

court erred in applying the continuing tort doctrine to Plaintiffs’ negligent maintenance 

claim, and asks that we affirm on that alternative ground. Because we conclude that the 

district court properly granted summary judgment on the issue of discretionary function 

immunity, we do not reach the statute of limitations issue. 

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not act as an absolute bar to claims for the negligent construction, design, 

planning, or maintenance of a sewer system.” “But, to overcome discretionary 

immunity at the summary judgment stage,” Plaintiffs were required to 

“identify an ‘ordinance or regulation or permit requirement which would have 

rendered the City’s inaction subject to a ministerial function.’” (quoting 

Boroujerdi, 158 So. 3d at 1114). According to the district court, “the statutes 

and regulations identified by Plaintiffs establish ministerial duties to ensure 

that discharges from [the City’s] sewer system into navigable and state waters 

do not exceed certain limitations set forth in [the City’s] NPDES [P]ermit and 

other state standards.” However, the district court found that “Plaintiffs have 

offered absolutely no argument as to how these duties, which relate to 

managing discharges into navigable and state waters, were furthered by the 

alleged negligent acts related to the outfall sewer, which apparently resulted 

in flooding inside private structures.” “In the absence of such an argument,”

the district court concluded that summary judgment was appropriate. 

Plaintiffs timely appealed. 

II. STANDARD OF REVIEW

This court reviews a district court’s order granting summary judgment 

de novo. Guar. Bank & Tr. Co. v. Agrex, Inc., 820 F.3d 790, 794 (5th Cir. 2016)

(per curiam). Summary judgment is appropriate when “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 genuine dispute as 

to a material fact exists ‘if the evidence is such that a reasonable jury could 

return a verdict for the nonmoving party.’” Guar. Bank & Tr. Co., 820 F.3d at

794 (quoting Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 

2014)). “[T]his court construes ‘all facts and inferences in the light most 

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favorable to the nonmoving party.’” Id. (alteration in original) (quoting McFaul 

v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012)). 

III. DISCRETIONARY FUNCTION IMMUNITY

Plaintiffs argue that the district court erred in holding that their 

negligence claim was barred by discretionary function immunity under the 

MTCA. The MTCA waives sovereign immunity for the Mississippi state 

government and its officials from tort claims. See Miss. Code Ann. §§ 11-46-1 

to 11-4-23. The MTCA, however, exempts certain claims from its waiver of 

immunity, including claims “[b]ased upon the exercise or performance or the 

failure to exercise or perform a discretionary function or duty.” Id. § 11-46-

9(1)(d). In Brantley, the Mississippi Supreme Court “abolish[ed]” the publicfunction test for determining whether governmental conduct was discretionary

in nature so as to warrant immunity, finding that it was inconsistent with this

statutory language.6 152 So. 3d at 1112. 

In place of the public-function test, the Mississippi Supreme Court 

adopted the following two-step test for determining whether discretionaryfunction immunity applies. Brantley, 152 So. 3d at 1114–15. The first step

requires courts to “consider the broadest function involved in order to make a 

baseline determination of whether the overarching function is discretionary or 

ministerial.” Id. at 1114. Then courts “must examine any narrower duty 

associated with the activity at issue to determine whether a statute, 

regulation, or other binding directive renders that particular duty a ministerial 

one, notwithstanding that it may have been performed within the scope of a 

broader discretionary function.” Id. at 1115. 

 

6 Under the public-function test, Mississippi courts asked two questions: First, did the 

conduct or activity involve an element of choice or judgment? And if so, did that choice or 

judgment involve social, economic, or political policy? See, e.g., Fortenberry v. City of Jackson, 

71 So. 3d 1196, 1199 (Miss. 2011).

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“Because sovereign immunity attaches when the governmental function 

involved is discretionary,” the Mississippi Supreme Court places “the burden 

of proving that the narrower function or duty at issue has lost its discretionaryfunction immunity” on the plaintiff. Id. Therefore, when a governmental 

entity acts in furtherance of a broader discretionary function or duty, 

discretionary function immunity applies, unless the plaintiff proves that the

complained-of “act[s] also furthered a more narrow function or duty which is 

made ministerial by another specific statute, ordinance, or regulation 

promulgated pursuant to lawful authority.” Id.7 

In Boroujerdi, the Mississippi Supreme Court applied Brantley’s twostep test to claims of negligence in maintaining a public sewage system. 158 

So. 3d at 1108, 1112. The court held that “sewer maintenance, as a general 

function, is discretionary” pursuant to section 21-27-189 of the Mississippi 

Code. Id. at 1112. The court, however, stated that was not the end of the 

inquiry and that it must also consider, “pursuant to our holding in Brantley, . 

. . whether there are narrower functions or duties concomitant to the general 

discretionary function of sewage maintenance that have been rendered 

ministerial through statute, ordinance, or regulation.” Id. The court found 

that there were such ministerial functions or duties, noting that “[s]ewage 

systems must comply with the Federal Water Pollution Control Act . . . , a 

statute which makes it unlawful to discharge raw sewage into the 

environment.” Id. The court further noted that the MDEQ “regulates the 

 

7 To illustrate, the Brantley court cited the operation of an airport. Id. at 1113–15. 

The government’s decision to operate an airport may be discretionary; but once that decision 

has been made, the government must comply with federal security regulations. Id. at 1115. 

Thus, the operation of an airport is an overarching discretionary function that encompasses 

several narrower functions or duties, many of which, such as compliance with federal security 

regulations, are ministerial. Id. If the plaintiff proves his or her claim arises from the 

performance of, or failure to perform, an act in furtherance of those federal security 

regulations, then the government would not enjoy immunity. Id. 

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permits required to operate wastewater-treatment facilities and wastewater 

polluters,” and requires permittees to “‘at all times properly operate, maintain, 

and when necessary, promptly replace all facilities and systems . . . used by 

the permittee to achieve compliance with the conditions of this permit.’” Id. at 

1113 (emphasis omitted) (quoting Miss. Admin. Code 11-6:1.1.4(A)(18)). Thus, 

the court concluded, “[s]everal functions and duties involved in sewage 

maintenance and operation are ministerial, and if a plaintiff can show that his 

or her injuries were caused by the government’s act or failure to act in 

furtherance of one or more of such ministerial functions, that plaintiff can 

proceed with his or her claim.” Id. (emphasis added). 

Recognizing that its “treatment of discretionary function immunity 

changed significantly in consequence of Brantley”—a case that was decided 

during the pendency of the appeal—the Boroujerdi court concluded “that it 

would be patently unfair to affirm summary judgment in the City’s favor 

without [the plaintiff] having an opportunity to conform his complaint and 

proof to this Court’s current approach to discretionary function immunity.” Id. 

at 1114. Accordingly, the case was remanded to allow the plaintiff an 

opportunity to “prove that the City’s alleged inaction in repairing the sewage 

system was related to a more narrow function made ministerial by statute, 

ordinance, regulation, or other binding directive.” Id. 

In light of Boroujerdi, there is no dispute that the overarching function 

the City is performing in this case—sewer-system design, construction, and 

maintenance—is discretionary pursuant to section 21-27-189 of the Mississippi 

Code. See id. at 1113; see also City of Magee v. Jones, 161 So. 3d 1047, 1051 

(Miss. 2015). Accordingly, the City was entitled to summary judgment on the 

basis of discretionary function immunity unless Plaintiffs (1) identified a 

statute or regulation that rendered a narrower function or duty ministerial 

and (2) showed that their claim arises out of the City’s performance of, or 

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failure to perform, an act in furtherance of the identified function or duty. 

Boroujerdi, 158 So. 3d at 1114; see also Jones, 161 So. 3d at 1051. 

The parties do not dispute that Plaintiffs have satisfied the first 

requirement—that is, Plaintiffs have identified statutes and regulations that 

impose ministerial duties on the City. They agree that the NPDES Permit

conditions (and the water pollution control laws from which those conditions 

derive) impose a ministerial duty on the City to operate and maintain its sewer 

system “to ensure that discharges from [the City’s] sewer system into navigable 

and state waters do not exceed certain limitations.” But they dispute whether 

Plaintiffs have satisfied the second requirement—that is, whether Plaintiffs 

have shown that their negligence claim arises out of the City’s performance of, 

or failure to perform, an act in furtherance of these narrow ministerial duties.

The district court rightly concluded that Plaintiffs failed to make that 

showing. In the district court, Plaintiffs discussed at length the Mississippi 

Supreme Court’s recent holdings in, among other cases, Brantley and 

Boroujerdi, but failed to engage in any meaningful application of those 

holdings to their negligence claim. Significantly, Plaintiffs conceded that the 

only duty imposed by the NPDES Permit was to avoid discharges that did not 

meet secondary treatment standards into state waters (the jurisdictional 

waters to which the MWPCL applies) and navigable waters (the jurisdictional 

waters to which the Clean Water Act applies), but presented no evidence or 

even argument as to how their negligence claim implicated that narrow 

limitation on the City’s overarching discretionary authority. Accordingly, the 

district court properly granted summary judgment in favor of the City. See

Boroujerdi, 158 So. 3d at 1114; Jones, 161 So. 3d at 1051. 

On appeal, Plaintiffs argue that the backups at issue threatened

jurisdictional waters and, thus, implicated the duty imposed by the NPDES 

Permit to avoid discharges of untreated sewage into such waters. Plaintiffs, 

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however, never raised this argument to the district court (or even in their 

opening brief, reserving it for reply). In their initial briefing to the district 

court (but not their supplemental briefing on remand), Plaintiffs did make 

reference to the fact that the City’s public outfall sewer line ran “on the eastern 

side of and parallel to a large drainage ditch that is a tributary of Kings Creek” 

and that Plaintiffs’ private sewer lines were required to run, above ground, 

over that ditch to connect to the City’s public outfall sewer line. But that

reference was not made in connection with an argument that the ditch or Kings 

Creek were state or navigable waters. Accordingly, Plaintiffs’ appellate 

argument was waived. See, e.g., XL Specialty Ins. Co. v. Kiewit Offshore Servs., 

Ltd., 513 F.3d 146, 153 (5th Cir. 2008) (“An argument not raised before the 

district court cannot be asserted for the first time on appeal.”). 

The result, however, would be the same even if we considered this 

argument. On appeal, Plaintiffs cite almost exclusively to their pleadings to 

support their argument that the drainage ditch and Kings Creek are 

jurisdictional waters and that the backups at issue threatened those waters.8 

Although Plaintiffs could point to their pleadings to avoid dismissal under 

Federal Rule of Civil Procedure 12(b)(6), they were required to go beyond their 

pleadings and present actual evidence to avoid summary judgment under Rule 

56. See Abarca v. Metro. Transit Auth., 404 F.3d 938, 940 (5th Cir. 2005) (per 

curiam) (“The non-movant must go beyond the pleadings and come forward 

with specific facts indicating a genuine issue for trial to avoid summary 

 

8 The only record evidence that Plaintiffs cite is the testimony of their expert that 

“[s]pills of raw sewage have contaminated the Evergreen [S]quare . . . property.” (first 

alteration in original). But that testimony, standing alone, is insufficient to defeat the City’s 

motion for summary judgment. As this court has explained, a non-movant cannot avoid 

summary judgment with only “some metaphysical doubt as to the material facts, by 

conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” 

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam) (citations 

and internal quotation marks omitted). 

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judgment.”); see also Jones, 161 So. 3d at 1051 (recognizing that, to defeat 

summary judgment, the plaintiff “must present evidence that her claim arises 

out of [the defendant’s] performance or failure to perform an act which 

‘furthered a more narrow function or duty which is made ministerial by 

another specific statute, ordinance, or regulation promulgated pursuant to 

lawful authority’” (emphasis added) (quoting Brantley, 152 So. 3d at 1115)).9

In apparent recognition of the fact that they did not provide sufficient 

evidence to defeat summary judgment on the City’s assertion of discretionary 

function immunity, Plaintiffs request that we remand the case to allow them 

to “conduct discovery and conform their proof to the new discretionary function 

paradigm as has been allowed by the Mississippi Supreme Court in Boroujerdi

and its progeny.” Plaintiffs’ argument, however, ignores two critical facts.

First, this court has already remanded Plaintiffs’ case in light of Boroujerdi. 

And second, Plaintiffs did not argue on remand that additional discovery was 

necessary, much less show that by “affidavit or declaration,” as required by 

Federal Rule of Civil Procedure 56(d). Thus, Plaintiffs were already given the 

opportunity that the Mississippi Supreme Court gave the Boroujerdi plaintiff 

to conduct discovery and conform their proof to the new discretionary function 

paradigm, but elected not to avail themselves of that opportunity. We decline 

their request for another opportunity. 

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is 

AFFIRMED.

 

9 Plaintiffs did not and do not challenge the district court’s decision to treat the motion 

as one for summary judgment. Accordingly, their reliance on Crum v. City of Corinth, 183 

So. 3d 847 (Miss. 2016)—a case involving a motion to dismiss under Mississippi’s analogto 

Federal Rule of Civil Procedure 12(b)(6)—is misplaced. 

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