     Case: 12-60649       Document: 00512156354         Page: 1     Date Filed: 02/26/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 26, 2013

                                     No. 12-60649                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



RODNEY ROEBUCK,

                                                  Plaintiff-Appellant
v.

DOTHAN SECURITY, INCORPORATED; ALAN B. CLARK, President;
JOHN DOES 1-10,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                               USDC No. 09-00267


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant, proceeding pro se, brought the instant suit in diversity,
alleging various claims under Mississippi law, including intentional infliction of
emotional distress, defamation, and fraudulent termination. The suit stems
from Plaintiff-Appellant’s employment and termination by the Defendant-
Appellee. Plaintiff-Appellant now appeals the district court’s dismissal of his


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                      No. 12-60649

complaint for failure to state a claim upon which relief can be granted. Finding
no error, we AFFIRM.
       I.     BACKGROUND
       In 2008, Plaintiff-Appellant Rodney Roebuck (“Roebuck”) was employed
by Defendant-Appellee Dothan Security, Inc. (“DSI”) as a field supervisor. DSI
terminated his employment on February 26, 2008. On April 28, 2009, Roebuck
filed the instant suit against DSI, alleging intentional infliction of emotional
distress, termination without cause, and defamation. On June 1, 2009, Roebuck
filed an amended complaint in which he added dates to the complaint and
modified the claim of termination without cause to fraudulent termination. On
September 24, 2009, Roebuck filed a second amended complaint that was almost
identical to the first amended complaint except that the dates of the defamation
claim had been changed from February through March of 2008 to April through
May of 2008.
       On November 11, 2009, DSI filed a motion to dismiss for failure to state
a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On
December 18, 2009, Roebuck filed a motion to quash DSI’s motion to dismiss.1
 On January 22, 2010, Roebuck also filed a motion for a court appointed
attorney, and DSI opposed the motion. On February 11, 2010, the district court
denied Roebuck’s motion to quash and his request for appointed counsel.
Additionally, the district court directed Roebuck to fully respond to DSI’s motion
to dismiss. On February 24, 2010, Roebuck filed a response to DSI’s motion to
dismiss and memorandum in support. On March 2, 2010, DSI filed a rebuttal
memorandum in support of its motion to dismiss. On May 18, 2011, the district


       1
          In his motion to quash DSI’s motion to dismiss, Roebuck also requested that he “be
permitted to proceed further or granted 30 days to correct any deficiencies that [may be]
present in Plaintiff’s Complaint.” On appeal, Roebuck does not argue that he was not allowed
to correct any deficiencies in his complaint. In any event, the record demonstrates that
Roebuck had previously filed two amended complaints.

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                                    No. 12-60649

court granted DSI’s motion and dismissed the complaint for failure to state a
claim. On June 27, 2011, Roebuck moved for leave to file a third amended
complaint to add the State of Mississippi as a defendant. Ultimately, the district
court denied Roebuck’s motion to amend and entered final judgment, dismissing
Roebuck’s claims.2 Roebuck now appeals.
      II.    ANALYSIS
             A.     Standard of Review
      We review de novo a district court’s dismissal pursuant to Rule 12(b)(6),
“accepting all well-pleaded facts as true and viewing those facts in the light most
favorable to the plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007).
However, “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Id. (citation omitted). In the instant case, Roebuck was
proceeding pro se when he filed his complaint. Although pro se complaints are
held to less stringent standards than those crafted by attorneys, “conclusory
allegations or legal conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d
376, 378 (5th Cir. 2002) (citation and internal quotation marks omitted).
             B.     Intentional Infliction of Emotional Distress
      Roebuck contends that the district court erred in holding that his claim for
intentional infliction of emotional distress (“IIED”) was barred by the statute of
limitations. Under Mississippi law, Roebuck’s claim for IIED is subject to a one-
year statute of limitations. Jones v. Fluor Daniel Services Corp., 32 So.3d 417,


      2
        Initially, the district court granted the motion to amend. However, in its final
judgment, the court found that it had erroneously granted the motion to amend after the
complaint had been dismissed. Thus, the court withdrew and set aside the earlier order.

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423 (Miss. 2010) (citing MISS. CODE ANN. § 15–1–35). Roebuck does not dispute
that the applicable statute of limitations is one year for his IIED claim.
      In his second amended complaint, Roebuck alleges that the IIED began in
January 2008. He alleged that DSI, “with malice and forethought, committed
the tortuous acts of lying, deceiving and intentionally inflicting emotional
distress by misleading plaintiff into accepting a field supervisor’s position and
then giving plaintiff a murderous schedule in a failed attempt to make plaintiff
quit.” It is undisputed that DSI terminated him in February 2008. Roebuck
filed suit in April 2009, which is more than one year from his termination of
employment.
      Nonetheless, in his brief, Roebuck cites a savings statute in the Mississippi
Code that provides as follows:
      If any person entitled to bring any of the personal actions mentioned
      shall, at the time at which the cause of action accrued, be under the
      disability of infancy or unsoundness of mind, he may bring the
      actions within the times in this chapter respectively limited, after
      his disability shall be removed as provided by law. . . .

MISS. CODE ANN. § 15-1-59 (REV. 2003). However, Roebuck does not assert in his
appellate brief that he was ever actually temporarily incapacitated by a
disability that fell within the applicable savings clause. Because Roebuck failed
to argue that he had a disability, we need not consider whether the savings
clause applies. Roebuck’s failure to adequately brief the savings clause issue
renders it abandoned on appeal. Yohey v. Collins, 985 F.2d 224-25 (5th Cir.
1993).
      Even assuming arguendo that his claim is not barred by the statute of
limitations, we are not persuaded that Roebucks’s allegations of DSI’s actions
were “extreme and outrageous” under Mississippi law. Burroughs v. FFP
Operating Partners, L.P., 28 F.3d 543, 546 (5th Cir. 1994).          “A claim for
intentional infliction of emotional distress will not ordinarily lie for mere

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employment disputes.” Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797
So.2d 845, 851 (Miss. 2001). Conduct that has been held to constitute IIED
includes “a plot by a girlfriend and her parents to hide the child of an unwed
father, arranging for the baby to be adopted by strangers while the father
pursued a custody suit.” Speed v. Scott, 787 So.2d 626, 630 (Miss. 2001). On the
other hand, conduct that does not rise to the level of IIED includes “such actions
as a law firm breaching an employment contract with an attorney, locking him
out, refusing him secretarial support and dropping his name from the firm sign.”
Id. Here, Roebuck contends that DSI attempted to force him to quit his job as
a security officer by giving him a grueling work schedule. We do not believe that
Mississippi courts would hold that Roebuck’s allegations rise to the level of
extreme and outrageous. Thus, the district court did not err in dismissing this
claim under Rule 12(b)(6).
            C.     Fraudulent Termination Claim
      As previously noted, Roebuck is proceeding pro se, and it is difficult to
ascertain his arguments in the remaining portion of his brief. In his statement
of the issues, he does reference the issue of whether it was error for the district
court to dismiss the fraud claim. In his second amended complaint, Roebuck
alleged that DSI “fraudulently terminated plaintiff against settled law as
enforced by the Mississippi Department of Employment Security (MDES).” In
response, DSI filed a motion to dismiss for failure to state a claim because
Mississippi is an at-will employment state and there was no allegation that DSI
had an employment contract with Roebuck or that DSI discriminated against
him. The district court agreed and dismissed the fraudulent termination claim
for failure to state a claim upon which relief could be granted.
      “Mississippi adheres to the employment at will doctrine, which states
‘absent an employment contract expressly providing to the contrary, an employee
may be discharged at the employer’s will for good reason, bad reason, or no

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reason at all, excepting only reasons independently declared legally
impermissible.’” Harris v. Mississippi Valley State, 873 So.2d 970, 986 (Miss.
2004) (quoting Shaw v. Burchfield, 481 So.2d 247, 253-54 (Miss. 1985)). “The
only exceptions to this general rule are for breach of contract or unlawful
intentional acts such as terminating someone on account of his or her race.”
Bellum v. PCE Constructors, Inc., 407 F.3d 734, 741 (5th Cir. 2005) (citing
Levens v. Campbell, 733 So.2d 753, 760 (Miss. 1999)).
      In his brief on appeal, although Roebuck references DSI’s alleged
fraudulent actions during the unemployment compensation proceedings, he does
not set forth any argument that the district court erred in dismissing his claim
of fraudulent termination based on Mississippi’s doctrine of at will employment.
In fact, it is unclear to us whether Roebuck is raising the fraudulent termination
claim on appeal. In any event, Roebuck’s failure to adequately brief the issue
renders it abandoned on appeal. Yohey, 985 F.2d at 224-25. Thus, Roebuck has
failed to show that the district court erred in dismissing this claim.
             D.   Defamation Claim
      In his second amended complaint, Roebuck alleged that, during his
unemployment compensation proceedings, DSI “in bad faith maligned,
negligently misrepresented, defamed, defrauded and slandered plaintiff
extremely and outrageously.”       In response, DSI argued that Roebuck’s
defamation claim must be dismissed because individuals testifying during
unemployment compensation proceedings before the MDES enjoy an absolute
privilege.   Additionally, DSI argued that the defamation claim should be
dismissed because Roebuck failed to make any specific allegations regarding the
alleged defamatory communications. The district court held that the defamation
claim was without merit because DSI’s communications were absolutely
privileged during the unemployment proceedings.



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      With respect to the claim of absolute privilege, the Mississippi Supreme
Court has opined the applicable privilege statute provides that “communications
between an employer and the Commission are privileged and ‘when qualified
privilege is established, statements or written communications are not
actionable as slanderous or libelous absent bad faith or malice if the
communications are limited to those persons who have a legitimate and direct
interest in the subject matter.” McArn v. Allied Bruce-Terminix Co., Inc., 626
So.2d 603, 608 (Miss. 1993) (quoting Benson v. Hall, 339 So.2d 570, 573 (Miss.
1976)). We note that although the statute contains the phrase “absolutely
privileged,”3 it also expressly sets forth exceptions to the privilege. The statute
provides privilege to communications made during the unemployment
proceedings “unless the same be false in fact and maliciously written, sent,
delivered or made for the purpose of causing a denial of benefits under this
chapter.” § 71-5-131. Here, Roebuck alleged bad faith on the part of DSI in his
claim of defamation. Although not in the context of the instant statute, the
Mississippi Supreme Court has recognized that malice, bad faith or abuse can
overcome the assertion of privilege against a defamation claim. Eckman v.
Cooper Tire & Rubber Co., 893 So.2d 1049, 1052 (Miss. 2005). Thus, because
Roebuck’s complaint alleges DSI’s defamation was in bad faith, we are not




      3
       Section 71-5-131 provides, in full, as follows:
      All letters, reports, communications, or any other matters, either oral or
      written, from the employer or employee to each other or to the department or
      any of its agents, representatives or employees, which shall have been written,
      sent, delivered or made in connection with the requirements and administration
      of this chapter shall be absolutely privileged and shall not be made the subject
      matter or basis of any suit for slander or libel in any court of the State of
      Mississippi unless the same be false in fact and maliciously written, sent,
      delivered or made for the purpose of causing a denial of benefits under this
      chapter.
      MISS. CODE ANN. § 71-5-131.

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persuaded that the district court properly dismissed the defamation claim based
solely on DSI’s assertion of privilege.
      Nonetheless, we are persuaded that Roebuck’s claim of defamation was
properly dismissed for failure to state a claim. In his complaint, Roebuck
asserted that DSI “in bad faith maligned, negligently misrepresented, defamed,
defrauded and slandered plaintiff extremely and outrageously.” However, as
previously set forth, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Roebuck failed to set forth any specific allegations regarding the alleged
defamatory communications in his complaint. When deciding a Rule 12(b)(6)
motion to dismiss, the district court is limited to the allegations set forth in the
complaint. See Kennedy v. Chase Manhattan Bank, 369 F.3d 833, 839 (5th Cir.
2004); cf. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.
1984) (explaining that “it is axiomatic that the complaint may not be amended
by the briefs in opposition to a motion to dismiss”). Although Roebuck has set
forth more specific factual allegations in his brief with respect to his claim of
defamation, Roebuck’s conclusory allegations in his complaint do not contain
sufficient factual matter to survive DSI’s motion to dismiss. We thus conclude
the district court did not err in dismissing the claim of defamation.
      The district court’s judgment is AFFIRMED.
 AFFIRMED.




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