     Case: 16-60447      Document: 00513909217         Page: 1    Date Filed: 03/13/2017




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

                                                                                  FILED
                                                                               March 13, 2017
                                      No. 16-60447
                                                                               Lyle W. Cayce
                                                                                    Clerk

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 16-60447
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, LLC 1 is the owner and Plaintiff
Fountainbleau Management Services, LLC is the manager of Evergreen
Square. The City of Tupelo and Tupelo POTW 2 (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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                                        No. 16-60447
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 public-
function 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 discretionary-
function 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.



       6Under 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 discretionary-
function 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 two-
step 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.




       9Plaintiffs 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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