2:24-cv-00082
S.D. Miss.Jun 18, 2025Background
- Seth Marks alleged that Channel Control Merchants, LLC (CCM) hired him as Chief Merchandising Officer and later supplemented his compensation with an addendum.
- After a change in CCM ownership, Greg Pender became CEO and purportedly refused to honor Marks’ compensation terms, leading to Marks’ termination.
- Marks filed suit, asserting contract and tort claims against CCM, Pender, and Steven J. Wisch (an equity holder in CCM), among others.
- Claims against Pender included intentional and negligent misrepresentation, and claims against both Pender and Wisch included tortious interference with contract.
- Wisch and Pender moved to dismiss for failure to state a claim, and Marks sought leave to amend his complaint again to add new defendants and claims.
- CCM has since filed for bankruptcy, staying proceedings against it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Intentional Misrepresentation (Pender) | Pender misrepresented employment terms to Marks. | No specific misrepresentation pled; insufficient particularity. | Dismissed; complaint lacked required particularity under Rule 9(b). |
| Negligent Misrepresentation (Pender) | Pender/CCM made material misstatements Marks relied on. | No facts showing what was misrepresented; also not pled with detail. | Dismissed; failed to state a claim under Rule 12(b)(6). |
| Tortious Interference (Wisch/Pender) | Wisch and Pender acted to cause CCM to breach Marks’ contract. | Corporate insiders privileged absent bad faith; conclusory pleading. | Dismissed; failed to allege facts showing malice/bad faith or outsider status. |
| Leave to Amend as to Wisch/Pender | New complaint adds claims and new defendants. | Amendment would still be futile; fails to cure prior deficiencies. | Denied as to Wisch/Pender due to futility; permitted as to others. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (sets pleading standard for plausibility under Rule 12(b)(6))
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must plead enough facts to state a plausible claim)
- Kinney v. Cath. Diocese of Biloxi, Inc., 142 So. 3d 407 (Miss. 2014) (lists elements for intentional misrepresentation under Mississippi law)
- Coleman & Coleman Enters., Inc. v. Waller Funeral Home, 106 So. 3d 309 (Miss. 2012) (elements for tortious interference with contract)
- Shaw v. Burchfield, 481 So. 2d 247 (Miss. 1985) (explains privilege for corporate agents acting within scope)