Yvonne Ewans, et al v. Wells Fargo Bank, N.A.

Filing

Case: 09-10912

Document: 00511197804

Page: 1

Date Filed: 08/09/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-10912 August 9, 2010 Lyle W. Cayce Clerk Y V O N N E DERRILL EWANS; CAMILLE LEWIS, Individually and as Next of F r ie n d of Laurie Satchel; SARAVANAN RATHINASABAPATHY; NITHYA SARAVANAN , Plaintiffs - Appellants v. W E L L S FARGO BANK, N.A., Defendant - Appellee

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 3:08-CV-1395

B e fo r e KING, HIGGINBOTHAM, and GARZA, Circuit Judges. P E R CURIAM:* Y v o n n e Ewans, Camille Lewis, Lewis's minor daughter, Saravanan R a t h in a s a b a p a th y , and Nithya Saravanan sued Wells Fargo Bank in state court u n d e r Texas tort law. Wells Fargo removed to the Northern District of Texas a n d won summary judgment on all claims. The plaintiffs appealed. Our review i s de novo, applying the same standards as the district court and viewing the e v id e n c e in the light most favorable to Ewans, Lewis, the infant, Saravanan, and

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

Case: 09-10912

Document: 00511197804

Page: 2

Date Filed: 08/09/2010

No. 09-10912 N it h y a ,1 and we may affirm for any grounds supported by the record.2 After r e v ie w in g the parties' submissions and the summary judgment record, we cannot b u t agree that the district court came to the right conclusion.

I. A. C in d y Pirrello worked as a teller at a Wells Fargo branch in Frisco, Texas, a n d at 1:30 in the afternoon on Saturday, September 8, 2007 she had a half-hour le ft before closing time. That is when she watched two men walk in whom she h a d never seen before. As they sat down together at loan officer Matt Palmer's d e s k , Pirrello for a second noticed what looked like a gun handle on one man's r ig h t hip, but ­ before she could get a better look ­ he had pulled his shirt down o v e r his waistband. P ir r e llo told her shift supervisor, Sonia Alonzo, that one of the men might h a v e a gun. Alonzo told Pirrello not to be crazy and went back to her work. Pirrello could not brush it off so easily, remembering that bank employees had b e e n asked to keep an eye out for suspicious activity; an unknown assailant r e c e n tly had gotten away after robbing a nearby Wells Fargo. Plus, a technician n a m e d John Rooney was performing maintenance on the vault, leaving the b a n k 's security compromised. P ir re llo relayed her concern to another banker, Chris Maiwald, whose desk s a t adjacent to Palmer's. Maiwald verified the holster on the man's hip, but ­ b e c a u s e of the pulled-down shirt ­ could not tell if it housed a gun. Maiwald also

1

Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010). Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 754 (5th Cir. 2010).

2

2

Case: 09-10912

Document: 00511197804

Page: 3

Date Filed: 08/09/2010

No. 09-10912 n o tic e d the men acting strangely, particularly the man with the bulge under his s h ir t . He kept getting up, talking on his cell phone, pacing around, and looking o u t the windows. Then Maiwald saw an SUV parked out front. It had tinted w in d o w s and the ignition running. One door was wide open. Maiwald walked b a c k into the vault to ask Rooney, the technician, if he owned the SUV; he did n o t. P ir r e llo and Maiwald asked a fourth employee, Kathryn Zlotnik, for her t a k e on the suspicious man. Zlotnik had thought nothing of him, until she, too, n o t ic e d his pacing, looking out the front door, and bulge in the shape of a gun h a n d le under his shirt ­ plus the unattributable SUV continuing to idle in front o f the bank. Maiwald, a former sheriff's deputy in Randall County, Texas, agreed they h a d to play it safe, that they should call for backup to investigate. After making a group decision ­ but without seeking permission from Alonzo, the supervisor ­ Pirrello tripped the silent alarm. Wells Fargo's private security center called t h e branch to see what was going on ­ to make sure it was not a false alarm. Pirrello answered and explained right off the bat "we're not robbed." She went o n to say there were "two males sitting at one of our personal desks" and "we h a v e a possibility that he has a gun on his hip, and his car is parked right o u ts id e the door and they've been on the phone since they got here." Pirrello a d d e d "our vault [is] wide open because we had a problem last night." T h e private security operator told Pirrello to call 911. Once on the phone w it h the 911 dispatcher, Pirrello stated that she had been instructed by the p r iv a t e security center to call 911 because "two males [] walked into our branch, p o s s ib ilit y of a gun in his pocket." Maiwald then took over the call:

3

Case: 09-10912

Document: 00511197804

Page: 4

Date Filed: 08/09/2010

No. 09-10912 M r . Maiwald: If we could, could we have a police officer, not in uniform preferably? 9 1 1 Operator: We don't have anybody not in uniform. M r . Maiwald: Really? 9 1 1 Operator: Right. M r . Maiwald: Okay. Well, do you have somebody ­ do you g u y s still do drive-bys? 9 1 1 Operator: Actually, they're coming out because the fe m a le told me ­ who I was speaking to earlier thought that they h a d a gun in their pocket. M r . Maiwald: Okay. 9 1 1 Operator: They're coming now on a robbery. M r . Maiwald: Anyways. (Laughter) You might want to ­ y o u might want to stop that. It's not a robbery in progress. 9 1 1 Operator: Okay, sir. We have one officer that's there r ig h t now. What is actually going on there, then? M r . Maiwald: Nothing. We ­ we're talking to him about his lo a n that he's doing and everything else, and one of our tellers t h o u g h t that he had a weapon on him, which she ­ she had believed it was a weapon. I've looked at him. I have a little bit of law e n fo r c e m e n t experience. I looked at him and it didn't look like he h a d a weapon on him because he did pull up his shirt a little bit and I couldn't see it in his pocket. Send a police officer if you want to to c o m e in and have a presence here, that might deter anything. 9 1 1 Operator: Sir, why are ­ what are you needing us for? I mean, he obviously did something that you need us there for.

4

Case: 09-10912

Document: 00511197804

Page: 5

Date Filed: 08/09/2010

No. 09-10912 M r . Maiwald: One of our tellers thought he had a weapon. 9 1 1 Operator: Okay. M r . Maiwald: So that's why. 9 1 1 Operator: Okay. And you don't think he does? M r . Maiwald: Yeah, it was his suspiciousness. 9 1 1 Operator: Okay. M r . Maiwald: Very suspicious. So ­ you know, and I a p o l o g i z e for this, but that said, probably what we need is maybe ju s t the officer to either, you know, walk in and say hi to everybody o r just stay in his car out front. I don't know what your procedure is on that. T h e police did not just send one officer to investigate. They sent in no fe w e r than ten officers. They set up a perimeter, and the SUV ­ the getaway car ­ started to drive off. The police stopped it and ordered the driver to call the m a n inside the bank, the one with the bulge. Once the police had the man on t h e phone, they ordered him out of the bank ­ had him crawl out the front door o n his hands and knees. After subduing him, the police stormed the bank and c a p tu r e d the other man. B. N o b o d y had a gun. Neither man had any nefarious intentions. To the c o n t r a r y , both are hard-working and law-abiding. The man with the hip holster w a s Ewans, and the holster was for his phone. He had just sold his car to the o t h e r man, Saravanan. Ewans's girlfriend, Lewis, had given them a ride to W e lls Fargo to secure a car loan. Lewis, who drove the tinted SUV, had her 5

Case: 09-10912

Document: 00511197804

Page: 6

Date Filed: 08/09/2010

No. 09-10912 y o u n g daughter in the car ­ which is why she left it running and kept a door o p e n while waiting in front of the bank. Ewans and Saravanan were not casing t h e joint. Far from it, they kept making calls and walking around because they d i d not have the proper documents: Saravanan called his wife, Nithya, who a r r iv e d with a paystub sometime after the bankers had already tripped the a la r m ; and Ewans made calls to retrieve the car title. I f only the siege ended their troubles. Instead, a passerby taped the e p is o d e on his videophone and uploaded it onto YouTube. Television and print n e w s media ran with the story. An alleged racial subtext made matters even w o r s e : Pirrello is white, and her suspicious men were not. (Ewans is black, and S a r a v a n a n is Indian.) E w a n s , Lewis, Lewis's daughter, Saravanan, and Nithya filed suit against W e lls Fargo in Texas state court for negligence, gross negligence, and false im p r is o n m e n t .3 Wells Fargo removed to federal court, and in April 2009 filed a m o t io n for summary judgment, which the district court granted in full. Ewans a n d the rest filed a motion for reconsideration under Federal Rule of Civil P r o c e d u r e 59(e), which the district court denied. The plaintiffs appealed. Texas la w governs in this diversity case.

II. A. T h e district court found that Ewans 4 could not prove Wells Fargo to be

They also sued for assault, defamation, invasion of privacy, and intentional infliction of emotional distress, all of which have fallen out of the case.
4

3

We use Ewans as a stand-in for all the plaintiffs.

6

Case: 09-10912

Document: 00511197804

Page: 7

Date Filed: 08/09/2010

No. 09-10912 n e g lig e n t . On appeal he urges two errors: (1) the district court engaged in a s u b je c t iv e ­ instead of objective ­ inquiry into the bankers' reasonableness; and (2 ) the court ignored his negligent training claim. i. E v e n if the district court used a subjective test, our independent review of t h e record shows that Ewans's negligence claims must fail under an objective s t a n d a r d . Nobody can argue that the plaintiffs ­ and particularly Ewans ­ s u ffe r e d great embarrassment. But just because somebody has been hurt does n o t mean that the law will find fault. Indeed, harm is but a fraction of the test. For the plaintiffs to recover, they must show that Wells Fargo (1) owed them a d u t y of care, (2) which it breached, (3) which in turn caused their damages.5 The f o c u s here is on prong two, whether Wells Fargo lived up to its duty of care ­ w h e t h e r its employees acted like the reasonable person would. A fte r Wells Fargo moved for summary judgement, the plaintiffs failed to p o in t to evidence establishing a genuine issue of material fact that the bank e m p lo y e e s acted unreasonably under the circumstances. Ewans suggests that t h e bank's suspicion was not reasonable, because it all turned on one employee's ­ Pirrello's ­ irrational fears. The record does not support this characterization. In fact, three out of the four bank employees privy to the bulging shirt held the s u s p i c io n (Pirrello, Maiwald, and Zlotnik). Without adducing specific facts to c o u n t e r Wells Fargo's compelling summary judgment motion, the plaintiffs must

See D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). "Negligence is no more than breach of a legal duty; the tort becomes actionable when the breach causes injury." Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975).

5

7

Case: 09-10912

Document: 00511197804

Page: 8

Date Filed: 08/09/2010

No. 09-10912 lo s e ,6 but, even putting these procedural concerns to one side, the record would n o t allow a reasonable jury to find the employees' actions unreasonable under t h e circumstances. P ir r e llo , Maiwald, and Zlotnik knew that a different Wells Fargo had r e c e n tly been robbed. Their vault was exposed. Two men, not regular customers o f the bank, walked in near closing time and would not sit still. They kept t a lk in g on their phones, pacing, looking around the bank, and searching out the w in d o w s . One employee saw what might have been a gun, and the other

e m p lo y e e s acknowledged a bulge of some kind hidden under one man's shirt. Worse, an unknown SUV was parked ­ running, with a door open ­ immediately in front of the bank. The employees did not know if the men were casing the jo in t. They did not know if the car was a getaway car. Under these

c ir c u m s t a n c e s , it was reasonable to want to call for an investigatory backup. When they did, the employees told the 911 operator that there was no robbery a n d specifically asked for just one police officer either to stay outside in his car o r to do a walk-through. ii. O n appeal Ewans argues that the crux of his case is not necessarily that t h e employees acted negligently by sounding the alarm, but that Wells Fargo n e g lig e n t ly trained the employees on how to respond to suspicion ­ that Wells F a r g o was negligent directly, not vicariously. This comes too late. In the district c o u r t, Wells Fargo moved for summary judgment on the negligent training c la im , urging that it was nothing more than a second swing at ordinary
See Bustos v. Martini Club, Inc., 599 F.3d 458, 468 (5th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 324 (1986); Hibernia Nat'l Bank v. Administracion Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985)).
6

8

Case: 09-10912

Document: 00511197804

Page: 9

Date Filed: 08/09/2010

No. 09-10912 n e g lig e n c e on the part of the employees. In response, Ewans merely said

n e g lig e n t training was the "fulcrum" of his claim, but did not explain any more. We agree with the district court that Ewans did not identify sufficient evidence a s to the negligent training claim to raise a genuine issue of material fact. E v e n ignoring this dispositive procedural flaw, Ewans's claim must fail. Ewans analogizes to just one case ­ Mackey v. U.P. Enterprises, Inc.7 ­ to try to e s t a b l is h negligent training of employees. But the case holds that negligent t r a in i n g will lie only where "the complainant's injuries are the result of the e m p lo y e r 's failure to take reasonable precautions to protect the complainant fr o m misconduct of its employees."8 Ewans has not shown the employees here t o have engaged in misconduct, to have breached a duty of care, so employer lia b ilit y does not fit. B. B e c a u s e Ewans loses on his ordinary negligence claims, he must also lose o n his gross negligence claim.9 C. E w a n s brought a false imprisonment claim, the essential elements of w h ic h are: (1) willful detention; (2) without consent; and (3) without authority o f law.1 0 Wells Fargo did not arrest or detain Ewans, "[b]ut in Texas . . . liability

7

935 S.W.2d 446 (Tex. App. ­ Tyler 1996, no writ). Id. at 459 (emphasis added).

8

Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994) ("[T]he defendant's conduct must involve an `extreme degree of risk,' a threshold significantly higher than the objective `reasonable person' test for negligence.").
10

9

Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002).

9

Case: 09-10912

Document: 00511197804

Page: 10

Date Filed: 08/09/2010

No. 09-10912 fo r false imprisonment extends beyond those who willfully participate in d e t a in in g the complaining party to those who request or direct the detention. False imprisonment's first element may thus be satisfied by conduct that is in t e n d e d to cause one to be detained, and in fact causes the detention, even when t h e actor does not participate in the detention." 1 1 F o r Ewans to prove that Wells Fargo "instigat[ed]" his arrest, he must s h o w that the bank "clearly directed or requested the arrest," that the officers a r r e s t e d not through their "own volition, but to carry out the request of the d e fe n d a n t ."1 2 The record, viewed in a light most favorable to Ewans, bears no s u c h interpretation. As explained by the district court, the employees requested a t most an investigatory walk-through, not an arrest or detention. Ewans with g o o d reason concedes in his reply brief that no Texas case supports the im p o s it io n of liability here, and his citation to an intermediate Arizona court is u n p e r s u a s iv e for any number of reasons.1 3 Finally, his suggestion that Wells
11

Id. at 507.

Id. (quotation marks omitted); see also Armstead v. Escobedo, 488 F.2d 509, 511 (5th Cir. 1974) ("Under Texas law a private citizen does not incur liability simply because he mistakenly informs the police that the suspect has committed a crime whenever the suspect is not thereafter successfully prosecuted. Rather, the citizen must actually direct the police to make the arrest." (citations omitted) (emphasis in original)). "In Armstead v. Escobedo, a bus driver had a dispute with a female passenger over the fare. As she left the bus, she allegedly threatened the bus driver with a knife and threw a brick through the bus window. One week later, the same bus driver picked up a female passenger whom he believed to be his assailant. After questioning the passenger, he flagged down two passing police officers and told them that the female passenger was his assailant. The police officers decided to arrest the woman. She was later released after passing a lie detector test. She then sued the bus driver for false arrest. This Court held that the bus driver could not be held liable for false arrest because he had not directed the police to arrest the woman." Halbert v. City of Sherman, Tex., 33 F.3d 526, 528 (5th Cir. 1994). See Deadman v. Valley Nat'l Bank, 743 P.2d 961 (Ariz. Ct. App. 1987). The court in that case explained that, unlike here, the record showed the employees did more than just
13

12

10

Case: 09-10912

Document: 00511197804

Page: 11

Date Filed: 08/09/2010

No. 09-10912 F a r g o "knowingly provide[d] false information resulting in the arrest"1 4 is w it h o u t basis. Although Pirrello did mention to the 911 operator that the s u s p ic io u s men would not take off their sunglasses ­ when they did not have on s u n g la s s e s ­ the district court rightly found this fact immaterial. Ewans points t o nothing in the record to show that Pirrello "knowingly" provided false i n f o r m a t io n or that the police in any way decided to detain Ewans because he m ig h t be wearing sunglasses. Instead, Ewans's own position is that the police d e c id e d to detain him as soon as they heard there might be a gun. D. W e conclude by addressing Ewans's motion for reconsideration, specifically h is attempt to introduce new evidence, which includes testimony from the police t h a t they based their tactical decisions on the information received from dispatch a n d an expert's opinion that industry best practices involve calling a none m e r g e n c y police number to investigate suspicions. A Rule 59(e) motion ­ which a s k s the court to set aside its previous judgment ­ "serves the narrow purpose o f allowing a party to correct manifest errors of law or fact or to present newly d is c o v e r e d evidence. Reconsideration of a judgment after its entry is an

e x t r a o r d in a r y remedy that should be used sparingly."1 5 Here, because "the d is t r ic t court refuse[d] to consider the [new] materials, the reviewing court

request an investigation. See id. at 969. The court, too, seemed to base false imprisonment in negligence, see id. at 970­71, but the Supreme Court of Texas has admonished that "false imprisonment is an intentional tort, requiring a willful detention by the defendant." Wal-Mart Stores, Inc., 92 S.W.3d at 511.
14

Wal-Mart Stores, Inc., 92 S.W.3d at 509.

Templet v. Hydrochem Inc., 367 F.3d 473, 479 (5th Cir. 2004) (citations and quotation marks omitted).

15

11

Case: 09-10912

Document: 00511197804

Page: 12

Date Filed: 08/09/2010

No. 09-10912 a p p lie s the abuse of discretion standard. Under this standard of review, the d is t r ic t court's decision and decision-making process need only be reasonable." 16 T h a t said, Ewans loses under any standard of review. C ir c u it precedent requires us to look to: (1) the reasons for Ewans's d e fa u lt ; (2) the importance of the omitted evidence to his case; (3) whether the e v id e n c e was available to him before he responded to the summary judgment m o t io n ; and (4) the likelihood that Wells Fargo will suffer unfair prejudice if the c a s e is reopened.1 7 As explained by the district court, Ewans has never provided a convincing excuse for presenting his evidence only after the district court g r a n t e d summary judgment. More importantly, the new evidence adds nothing t o Ewans's case.1 8 Just like the district court, our holding is unaffected by either s id e 's testimony of "best practices." Negligence law is concerned with reasonable p r a c t ic e s , not best practices. In conceding it is a "best" practice to call a none m e r g e n c y number to request police investigation, Ewans actually hurts his case ­ by adding to the reasonableness of calling the police in the first instance to r e p o r t suspicion. That the 911 dispatcher did not relay the non-emergency n a t u r e of the call to the responding police units is not a responsibility the bank m u s t bear.

16

Id. at 477 (citations omitted).

Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 174 (5th Cir. 1990), overruled on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994) (en banc). In fact, the evidence hurts Ewans's case. For example, Sergeant Rowdy Ray Vest of the Frisco Police Department testified: "We don't live in a perfect world, so therefore, you know, if it's someone's perception that someone is carrying a gun or whatnot, it needs to be reported to us and we'll respond accordingly." He also explained that he would not necessarily want bank personnel to be aware of the police department's emergency response procedures.
18

17

12

Case: 09-10912

Document: 00511197804

Page: 13

Date Filed: 08/09/2010

No. 09-10912 III. E v e r y b o d y involved likely wishes September 8, 2007 had never happened, o r , at least, that it had not happened as it did. In a perfect world, Saravanan g e t s his loan and Ewans sells his car; Pirrello routinely closes the bank and the p o lic e patrol without incident; everyone goes home to enjoy a North Texas S a t u r d a y night. But tort law does not require the optimal outcome, just

r e a s o n a b le behavior ­ and will not here compensate Ewans, even though he in n o c e n t ly suffered. Doing so would punish ordinarily prudent bankers, bankers w h o might then be deterred from sounding the alarm in dangerous situations. When it comes to security, the law requires us to accept reasonable false p o s it iv e s in order to avoid the more catastrophic false negatives. A F F IR M E D .

13