Fountainbleau Management Services, L.L.C. v. City of Tupelo, 681 F. App'x 366

Background

Evergreen Square (257-unit apartment) experienced repeated sewage backups; plaintiffs are owner/manager and defendants are City of Tupelo and its POTW, which operate the public outfall sewer under an NPDES permit.
Plaintiffs sued under the Mississippi Tort Claims Act (MTCA), alleging negligent design, construction, planning, and maintenance of the public outfall sewer caused backups; they also alleged a breach of contract predicated on NPDES violations (later dismissed).
Plaintiffs’ expert opined the outfall was too shallow, causing improper slopes, surcharging, missing manhole covers, capacity insufficiency, and stormwater intrusion.
The City moved for dismissal/summary judgment asserting MTCA discretionary-function immunity (among other defenses). The district court granted summary judgment; this court previously vacated and remanded for reconsideration in light of intervening Mississippi Supreme Court decisions.
On remand the district court again granted summary judgment, holding the City’s sewer work is an overarching discretionary function but plaintiffs failed to show their claims arose from a narrower ministerial duty imposed by statute/permit (i.e., duties to prevent discharges into jurisdictional waters). Plaintiffs appealed and challenged the discretionary-function ruling.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the City’s sewer design/maintenance claim is barred by MTCA discretionary-function immunity	Plaintiffs: the backups implicated ministerial duties under the NPDES permit (avoid discharges into jurisdictional waters) so immunity does not apply	City: sewer design/maintenance is an overarching discretionary function; plaintiffs did not show the claim arises from any narrower ministerial duty	Held: Affirmed—plaintiffs failed to show their claim furthered a ministerial duty under statute/regulation, so discretionary-function immunity applies
Whether plaintiffs should get remand for discovery to conform to newer MTCA framework (Boroujerdi/Brantley)	Plaintiffs: request remand to conduct discovery and conform proof to the new discretionary-function paradigm	City: plaintiffs already had opportunity on remand and did not invoke Rule 56(d) or seek discovery then	Held: Denied—court noted plaintiffs had earlier remand opportunity and failed to show need for 56(d) relief
Whether plaintiffs’ argument that backups threatened jurisdictional waters was preserved for appeal	Plaintiffs: now argue backups threatened tributary/creek and thus implicated NPDES duties	City: argument was not raised below and lacks evidentiary support	Held: Waived—argument not raised in district court; even on merits plaintiffs offered only pleadings and insufficient evidence to defeat summary judgment
Whether summary judgment standard was correctly applied	Plaintiffs: relied largely on pleadings and expert statements	City: summary judgment proper under Rule 56 because plaintiffs offered no specific evidence linking claimed ministerial duty to the conduct	Held: Affirmed—nonmovant must produce specific evidence beyond pleadings; plaintiffs failed to do so

Key Cases Cited

Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014) (adopts two-step test distinguishing overarching discretionary functions from narrower ministerial duties)
Boroujerdi v. City of Starkville, 158 So. 3d 1106 (Miss. 2015) (applies Brantley to sewer-maintenance claims and permits plaintiff opportunity to amend/submit proof that injuries arose from ministerial duties)
City of Magee v. Jones, 161 So. 3d 1047 (Miss. 2015) (recognizes sewer maintenance as discretionary under state code)
Abarca v. Metropolitan Transit Authority, 404 F.3d 938 (5th Cir. 2005) (summary-judgment standard requires nonmovant to go beyond pleadings and present specific facts)
Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994) (nonmovant cannot defeat summary judgment with conclusory allegations or scintilla of evidence)