IN THE UNITED STATES COURT OF APPEALS

        FOR THE FIFTH CIRCUIT
                   _______________

                     No. 02-60415
                   Summary Calendar
                   _______________




               EOG RESOURCES, INC.,

                                               Plaintiff-
                                               Counter Defendant-
                                               Appellee,

                        VERSUS

           JESSE DEMPSEY BEACH, ET AL.,

                                               Defendants,

               PRESTON WAYDE GILL,

                                               Defendant-
                                               Counter Claimant-
                                               Appellant.


            ___________________________

       Appeal from the United States District Court
         for the Southern District of Mississippi
                  m 1:00-CV-351-BrR
                  m 1:00-CV-368-GR
                  m 1:00-CV-491-BrR
             _________________________

                   November 26, 2002
Before HIGGINBOTHAM, SMITH, and                                At a hearing on August 24, 2000, the dis-
  CLEMENT, Circuit Judges.                                 trict court announced that it would issue a pre-
                                                           liminary injunction enjoining defendants from
JERRY E. SMITH, Circuit Judge:*                            denying EOG access to their lands. In its or-
                                                           der dated August 29, 2000, the court required
   EOG Resources, Inc. (“EOG”), sought a                   EOG to obtain a security bond of $6000 be-
declaratory judgment for the right to conduct              fore issuance of the preliminary injunction
seismic exploration operations on Preston                  against Gill.2
Gill’s land. Gill appeals a summary judgment,
and we affirm.                                                EOC did not obtain a bond until Septem-
                                                           ber 6. Before the bond was issued, on August
                        I.                                 27, EOC employees entered Gill’s property
    EOG is a Houston-based corporation spe-                with the intent of conducting seismic opera-
cializing in mineral exploration. Gill and other           tions. Gill, who claims that he was worried
defendants are the record title owners of the              about liability in the event of an accident,
surface estate in various tracts of land in Mis-           asked the employees for a copy of the injunc-
sissippi. EOG entered into seismic op-                     tion. When they were unable to comply, Gill
tion/lease agreements with certain owners of               told them to leave.
mineral interests underlying defendants’ lands.
Under these agreements, EOG possessed the                     Later that day, Donnie Sport and Richard
right to acquire oil, gas, and mineral leases and          Fitzpatrick, representatives of EOG, came to
to conduct a geophysical survey.1                          Gill’s house. In his amended counterclaim,
                                                           Gill alleges that Sport “made false accusations
    Despite EOG’s alleged attempts to furnish              of interference” by Gill and threatened him
defendants proof of its subsurface interest, de-           with legal action for his unwillingness to per-
fendants denied EOG the right to enter and use             mit the employees access to his property. The
the land. Faced with a time-sensitive explora-             district court granted summary judgment on
tion project, EOG sued for declaratory, injunc-            EOG’s declaratory judgment claim and or-
tive, and monetary relief. Gill answered pro se            dered that Gill’s counterclaim be dismissed on
and filed a counterclaim for abuse of process              the merits.
and intentional infliction of emotional distress
(“i.i.e.d.”).                                                                    II.
                                                              Gill argues that the district court erred in
                                                           granting summary judgment on EOC’s declar-
   *
     Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
                                                              2
circumstances set forth in 5TH CIR. R. 47.5.4.                  “No preliminary injunction shall issue except
                                                           upon the giving of security by the applicant, in
   1
     Under Mississippi law, a mineral owner or             such terms as the court deems proper . . . .” FED.
lessee has the right to enter, occupy, and use as          R. CIV. P. 65(c). In this circuit, however, courts
much of the surface as is reasonably necessary to          have the discretion to issue injunctions without se-
explore, mine, and market minerals. Larco Drill-           curity. Corrigan Dispatch Co. v. Casa Guzman,
ing Corp. v. Lee, 207 So. 2d 634, 635 (Miss.               S.A., 569 F.2d 300, 303 (5th Cir. 1978) (per
1968).                                                     curiam).

                                                       2
atory judgment claim. Under Mississippi law,               propriate when there is no genuine issue of
the owner or lessee of subsurface oil, gas, and            material fact and the moving party is entitled
mineral rights has the right to enter, occupy              to judgment as a matter of law. FED. R. CIV.
and use as much of the surface as is reasonably            P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
necessary to explore, mine, and market miner-              317, 323 (1986). An issue of material fact is
als.3 At the August 24 hearing, EOC pre-                   genuine if a reasonable jury could return a ver-
sented evidence of its right to conduct seismic            dict for the nonmovant. Anderson v. Liberty
explorations on Gill’s land. This evidence in-             Lobby, Inc., 477 U.S. 242, 248 (1986). In re-
cluded certified copies of instruments from                viewing the evidence, we draw all reasonable
county records and the owner’s seismic per-                inferences in favor of the nonmoving party and
mits. Gill has never disputed the authenticity             avoid credibility determinations and weighing
of this evidence. Because EOC is an undisput-              of the evidence. Sanderson Plumbing Prods.
ed lessee of the subsurface rights, the court              Inc., 530 U.S. 133, 150-51 (2000).
properly granted summary judgment.4
                                                                                  A.
                       III.                                   Gill contends that EOC abused the judicial
    The district court dismissed Gill’s claims             process by unnecessarily naming him as a de-
for abuse of process and i.i.e.d.. Gill com-               fendant. Had EOC simply demonstrated proof
plains that EOC wrongly named him as a de-                 of its subsurface rights, Gill says, he would
fendant in the declaratory judgment action. He             have allowed the company access to his prop-
maintains that had EOC originally complied                 erty, making litigation unnecessary. Referenc-
with his requests to furnish proof of its subsur-          ing the apparent time-sensitive nature of
face rights, he would have granted access,                 EOC’s seismic project, Gill contends that EOC
making litigation unnecessary. Gill seeks                  was “more interested in procuring a Tempo-
damages for the costs of maintaining the suit,             rary Court Injunction to force [him] into sub-
including emotional distress. He also alleges              mission than to take that amount of time re-
that EOC’s entry onto his land before issuance             quired to properly provide proof” of their sub-
of the preliminary injunction constituted abuse            surface rights. Further, Gill points to EOC’s
of process and i.i.e.d.                                    entry on his property before issuance of the
                                                           preliminary injunction. EOC defends its ac-
   We review a summary judgment de novo.                   tions as consistent with the court’s ultimate
Pratt v. City of Houston, 247 F.3d 601, 605-               decision on the merits.
06 (5th Cir. 2001). Summary judgment is ap-
                                                              Abuse of process is “the misuse or misap-
                                                           plication of a legal process to accomplish some
   3
                                                           purpose not warranted or commanded by the
     E.g., Charles F. Hayes & Assocs., Inc. v.             writ.” State for Use and Benefit of Foster v.
Blue, 233 So. 2d 127, 128 (Miss. 1970); Larco
                                                           Turner, 319 So. 2d 233, 236 (Miss. 1975).5 In
Drilling Corp. v. Lee, 207 So. 2d 634, 635 (Miss.
1968).
   4                                                          5
     Gill’s argument that EOC failed to provide                 From the pleadings, it is not entirely evident
him with evidence of its subsurface rights before          whether Gill has alleged a claim for abuse of pro-
the preliminary injunction hearing is immaterial for       cess or malicious prosecution, or both. Certainly,
purposes of the declaratory judgment claim.                                                     (continued...)

                                                       3
Mississippi, an abuse of process claim is estab-               For example, in Foster, defendants could
lished by showing “(1) that the defendant made              not make out a claim for abuse of process
an illegal and improper perverted use of the                where they instituted criminal proceedings
process, a use neither warranted nor autho-                 against the plaintiffs for purely self-serving
rized by the process; (2) that the defendant had            reasons. Foster, 319 So. 2d at 236. If EOC
an ulterior motive or purpose in exercising                 made an improper use of the judicial process
such illegal, perverted or improper use of pro-             by filing an unnecessary lawsuit,7 Gill’s proper
cess; and (3) that damages resulted to the                  remedy is a claim for malicious prosecution,
plaintiff from the irregularity.” Id. To survive            not abuse of process.
summary judgment, Gill must show that a gen-
uine issue of fact exists as to each element.                   The only unlawful action alleged by Gill to
Williamson v. Keith, 785 So. 2d 390, 394                    have taken place after the commencement of
(Miss. 2000).                                               legal proceedings is EOC’s entry upon his land
                                                            on August 27. Gill alleges that EOC breached
   For purposes of an abuse of process claim,               the terms of the preliminary injunction by fail-
a party makes an illegal and improper per-                  ing first to secure a bond for $6000, as re-
verted use of the judicial process only after               quired by the preliminary injunction order dat-
suit has been filed.6 Woolfolk v. Tucker, 485               ed August 29. EOC does not dispute that it
So. 2d 1039, 1042 (Miss. 1986). A party                     failed to follow the terms of the injunction.
makes improper use of the judicial process                  Certainly, the company’s ultimate success on
where, for example, he mistakenly fails to                  the merits does not justify its blatant disregard
serve the opposing party with a copy of a sub-              of the order.
poena for medical records. Williamson, 786
So. 2d at 394. On the other hand, where a                       This, without more, is insufficient, how-
party files a suit for impermissible reasons, the           ever, to maintain an abuse of process claim.
proper remedy is malicious prosecution, not                 Given the district court’s inherent power to
abuse of process.                                           determine the propriety of security before is-
                                                            suing a preliminary injunction,8 the court’s fail-
                                                            ure to initiate contempt proceedings against
   5
     (...continued)                                         EOC weighs heavily against our finding a fact
he cannot make out a claim for malicious prosecu-           issue as to abuse of process. In addition, Gill’s
tion, which requires that a plaintiff first establish       failure to allege particular damages stemming
that the underlying proceedings were terminated in          from EOC’s violation further supports the
his favor. Turner, 319 So. 2d at 235.
   6                                                           7
     Foster, 319 So. 2d at 236 (“An action for                   Although we do not decide the issue, we have
abuse of process differs from an action for mali-           located no authority supporting Gill’s claim that
cious prosecution in that the latter is concerned           Mississippi law requires a subsurface owner or
with maliciously causing process to issue, while the        lessee initially to notify the surface owner before
former is concerned with the improper use of pro-           commencing seismic explorations.
cess after it has been issued.”); see also Moon v.
                                                               8
Condere Corp., 690 So. 2d 1191, 1197 (Miss.                      City of Atlanta v. Metro. Atlanta Rapid
1997) (noting that “the defendant’s complaint was           Transit Auth., 636 F.2d 1084, 1094 (5th Cir.
not based on any perversion of any process, rather          Unit B Feb. 1981); Corrigan Dispatch, 569 F.2d
it was based simply on the filing of the suit”).            at 303.

                                                        4
conclusion that an abuse of process claim is                (5th Cir. 1991).
inappropriate here.
                                                                Gill alleges that Sport’s insults and threats
                           B.                               of legal action were sufficiently outrageous to
    On the i.i.e.d. claim, under Mississippi law,           support his i.i.e.d. claim. We disagree.
liability is proper only where “the conduct has             Sport’s reaction may have been inappropriate,
been so outrageous in character and so ex-                  but it was not the type of behavior that might
treme in degree, as to go beyond all possible               be characterized as utterly intolerable in a civ-
bounds of decency, and to be regarded as atro-              ilized community. Gill has not alleged any
cious, and utterly intolerable in a civilized               damages beyond “mental stress”SShe cites no
community.”9 Liability “clearly does not ex-                verifiable physical ailments resulting from his
tend to mere insults, indignities, threats, an-             encounter with Sport. Along with the fact that
noyances, petty oppression, or other triviali-              miscommunication appears to have been the
ties.” Wong, 700 So. 2d at 306.10 For ex-                   cause of Sport’s belief that his crew was en-
ample, the immediate firing of an employee un-              titled to begin seismic operations on Gill’s
der an at-will employment contract does not                 land, we see no basis for the i.i.e.d. claim.
constitute i.i.e.d. Fuselier, Ott & McKee v.
Moeller, 507 So. 2d 63, 69 (Miss. 1987). A                     AFFIRMED.
police officer who arrested a minor for driving
his parents’ car without a license could not be
liable for i.i.e.d. after the minor committed sui-
cide.11 White v. Walker, 950 F.2d 972, 978


   9
     Wong v. Stripling, 700 So. 2d 296, 306
(Miss. 1997) (quoting RESTATEMENT (SECOND) OF
TORTS § 46 cmt. d (1977)).
   10
       In Wong, the court also wrote: “The rough
edges of our society are still in need of a good deal
of filing down, and in the meantime plaintiffs must
necessarily be expected and required to be hard-
                                                               11
ened to a certain amount of rough language, and to                (...continued)
occasional acts that are definitely inconsiderate and       of liability on the “rights of the home.” Id. at 755.
unkind. There is no occasion for the law to inter-
vene in every case where someone’s feelings are
hurt.” Id.                                                      Gill asks us to apply this holdingSSwhich is
                                                            over fifty years oldSSto the facts of this case. We
   11
      In Continental Cas. Co. v. Garrett, 161 So.           decline to do so. See White, 950 F.2d at 978
753 (Miss. 1935), the court permitted recovery for          (characterizing Garrett as “out of date” and noting
a plaintiff whose feeble medical condition worsened         that “[w]e doubt that a contemporary court would
after a representative of the defendant insurance           impose liability” based on its holding). Unlike the
company came to his home and insulted him with              plaintiff in that case, Gill has not alleged that he
false accusations. The court premised its finding           suffered a physical ailment as a result of Sport’s
                                      (continued...)        visit to his house on August 27, 2000.

                                                        5
