LATTIMORE v. PETSMART INC

Filing 7

ORDER GRANTING 1 Motion to Dismiss for Failure to State a Claim. The case is DISMISSED without prejudice. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 3/9/2015. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TAMELIA LATTIMORE,

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Plaintiff,
v.
PETSMART, INC.,
Defendant.

CIVIL ACTION NO. 5:14-CV-438 (MTT)

ORDER
Defendant PetSmart, Inc. filed a motion to dismiss or, in the alternative, for a
more definite statement on December 19, 2014. (Doc. 1). Plaintiff Tamelia Lattimore
failed to respond to the motion within the time provided by the Local Rules. See M.D.
Ga. L.R. 6.3 and 7.2. On February 9, 2015, the Court ordered the Plaintiff to show
cause why the Defendant’s motion to dismiss should not be granted within 14 days.
(Doc. 6). The time to respond to the Court’s order has now passed, and the Plaintiff has
failed to respond. For the following reasons, the Defendant’s motion to dismiss is
GRANTED.
I.

BACKGROUND1

Plaintiff Tamelia Lattimore was employed as a lead cashier for Defendant
PetSmart in Macon, Georgia. (Doc. 2-1, ¶¶ 2, 3). On December 19, 2013, the Plaintiff
was accused of stealing a one hundred dollar bill on November 29, 2013. (Doc. 2-1, ¶
5). She was taken to the store manager’s office and questioned for more than 30

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The following facts are allegations from the Plaintiff’s complaint taken as true for purposes of deciding
the motion.

minutes by PetSmart’s district manager and loss prevention officer. (Doc. 2-1, ¶ 6).
According to the Plaintiff, she was “made to believe that she would lose her job if she
did not confess to stealing the one hundred dollar bill” and further “believed that the
interrogation and detainment would not end unless she signed a confession.” (Doc. 2-1,
¶ 7). She wrote a confession at the loss prevention officer’s direction. (Doc. 2-1, ¶ 8).
As a result, the store manager terminated the Plaintiff’s employment. (Doc. 2-1, ¶ 9).
The Plaintiff alleges she suffered “mental stress” as a result of the PetSmart officials’
conduct. (Doc. 2-1, ¶ 10).
The Plaintiff has brought claims of intentional infliction of emotional distress, false
imprisonment, and false arrest against the Defendant. She is also seeking punitive
damages. The Defendant has moved to dismiss the complaint pursuant to Rule
12(b)(6) because the Plaintiff’s allegations are insufficient to state a claim or,
alternatively, for the Court to order the Plaintiff to set forth a more definite statement of
her claims pursuant to Rule 12(e).
II.

DISCUSSION

A. Motion to Dismiss Standard
To avoid dismissal pursuant to Fed. R. Civ. P. 12(b)(6), a complaint must contain
sufficient factual matter to “‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “At the motion to dismiss stage, all well-pleaded facts are accepted as
true, and the reasonable inferences therefrom are construed in the light most favorable
to the plaintiff.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006)
(internal quotation marks and citation omitted). However, “where the well-pleaded facts

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do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’”
Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). “[C]onclusory allegations,
unwarranted deductions of facts or legal conclusions masquerading as facts will not
prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir.
2002). The complaint must “give the defendant fair notice of what the ... claim is and
the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation marks
and citation omitted). Where there are dispositive issues of law, a court may dismiss a
claim regardless of the alleged facts. Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas
Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
B. Plaintiff’s Claims
1. False Arrest/False Imprisonment
Georgia law recognizes three torts relating to allegedly wrongful detainment: “(1)
false imprisonment, which is ‘unlawful’ detention without judicial process, or without the
involvement of a judge at any point (O.C.G.A. § 51-7-20); (2) false or malicious arrest,
which is detention ‘under process of law’ (O.C.G.A. § 51-7-1); and (3) malicious
prosecution, which is detention with judicial process followed by prosecution (O.C.G.A.
§ 51-7-40).” Ferrell v. Mikula, 295 Ga. App. 326, 329, 672 S.E.2d 7, 10 (2008).
Because the Plaintiff has not alleged she was arrested pursuant to a warrant, she
cannot assert a claim for false or malicious arrest.2 See id. Thus, to the extent the

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The Georgia Court of Appeals notes that the proper terminology is malicious arrest instead of false
arrest because false arrest is synonymous with false imprisonment. However, the court refers to the tort
of malicious arrest as false/malicious arrest because so many cases refer to it as false arrest. Ferrell, 295
Ga. App. at 331-32, 332 n.1, 672 S.E.2d at 12, 12 n.1.

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complaint attempts to assert a claim for false or malicious arrest, that claim is
dismissed.
“False imprisonment is the unlawful detention of the person of another, for any
length of time, whereby such person is deprived of [her] personal liberty.” O.C.G.A.
§ 51-7-20.
A detention need not consist of physical restraint, but may arise out of
words, acts, gestures, or the like, which induce a reasonable
apprehension that force will be used if plaintiff does not submit; and it is
sufficient if they operate upon the will of the person threatened, and result
in a reasonable fear of personal difficulty or personal injuries.
Mitchell v. Lowe’s Home Ctrs., Inc., 234 Ga. App. 339, 340-41, 506 S.E.2d 381, 383-84
(1998). However, “[t]he threat of being terminated from at-will employment cannot
constitute the basis of a false imprisonment claim.” Shannon v. Office Max N. Am., Inc.,
291 Ga. App. 834, 836, 662 S.E.2d 885, 888 (2008) (footnote omitted); see also
Miraliakbari v. Pennicooke, 254 Ga. App. 156, 161, 561 S.E.2d 483, 488-89 (2002) (“It
is true that the exercise of dominion over someone’s property may serve as an exercise
of dominion over that person. But, we find no authority in Georgia applying this rule to
the threat of loss of an at-will, nonpublic job.” (citations omitted)).
Here, the Plaintiff has not alleged she was physically restrained or alleged facts
suggesting she had a reasonable apprehension force would be used. Rather, she
alleges she “was made to believe” she would lose her job if she did not confess and that
she also “believed that the interrogation and detainment would not end unless she
signed a confession.” (Doc. 2-1, ¶ 7). There is no allegation she was actually
prevented from leaving or any alleged facts explaining her belief that the interrogation

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would not end until she signed a confession. Fear of being terminated is not sufficient.
Thus, the Court concludes the complaint fails to state a claim for false imprisonment.
2. Intentional Infliction of Emotional Distress
To prevail on a claim for intentional infliction of emotional distress, the Plaintiff
must demonstrate that:
(1) the conduct giving rise to the claim was intentional or reckless; (2) the
conduct was extreme and outrageous; (3) the conduct caused emotional
distress; and (4) the emotional distress was severe. The defendant's
conduct must be so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Whether a claim rises to the requisite
level of outrageousness and egregiousness to sustain a claim for
intentional infliction of emotional distress is a question of law.
Steed v. Fed. Nat’l Mortg. Corp., 301 Ga. App. 801, 810, 689 S.E.2d 843, 851-52 (2009)
(internal quotation marks and citation omitted). “The rule of thumb in determining
whether the conduct complained of was sufficiently extreme and outrageous is whether
the recitation of the facts to an average member of the community would arouse her
resentment against the defendant so that she would exclaim[,] ‘Outrageous!’” Wilcher v.
Confederate Packaging, Inc., 287 Ga. App. 451, 453, 651 S.E.2d 790, 792 (2007)
(internal quotation marks and citation omitted). Factors to consider include “the
existence of a relationship in which one person has control over another, the actor’s
awareness of the victim’s particular susceptibility, and the severity of the resultant
harm.” Trimble v. Circuit City Stores, Inc., 220 Ga. App. 498, 499-500, 469 S.E.2d 776,
778 (1996) (citations omitted).
The Court concludes the Plaintiff has not sufficiently alleged facts to demonstrate
the Defendant’s conduct was extreme and outrageous. In Crowe v. J.C. Penney, Inc.,
the Georgia Court of Appeals found that interrogation of the plaintiff over a three-hour
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period by two security personnel accusing the plaintiff of stealing from her employer was
not sufficiently extreme and outrageous. 177 Ga. App. 586, 586-88, 340 S.E.2d 192,
193-95 (1986). The court reached this conclusion despite the fact that the plaintiff
claimed one of the interrogators slammed his hands down on the desk, yelled at her,
and called her a liar. Id. at 586, 340 S.E.2d at 193-94. Here, the facts alleged are even
less egregious: the Plaintiff alleges she was questioned for more than 30 minutes and
was made to believe she would lose her job if she did not sign a confession. She
alleges no facts suggesting her interrogators threatened her in any way or were
otherwise rude or offensive. Thus, the complaint fails to state a claim for intentional
infliction of emotional distress.
C. Failure to Comply with Court Order
The action is also subject to dismissal because the Plaintiff failed to comply with
the Court’s order to show cause why the Defendant’s motion to dismiss should not be
granted. Pursuant to Fed. R. Civ. P. 41(b), “If the plaintiff fails to prosecute or to comply
with these rules or a court order, a defendant may move to dismiss the action or any
claim against it.” Further, “[t]he authority of a court to dismiss sua sponte for lack of
prosecution has generally been considered an ‘inherent power,’ governed not by rule or
statute but by the control necessarily vested in courts to manage their own affairs ... .”
Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005) (quoting
Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)) (internal quotation marks omitted).
Though Rule 41(b) by its terms applies only to dismissal on a defendant’s motion, the
Eleventh Circuit has “elide[d] th[e] neat distinction” between a district court’s dismissal
pursuant to Rule 41(b) and dismissal pursuant to its inherent authority in many of its

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prior decisions. Id. Regardless of the source of authority, it is clear the Court may
dismiss an action as a sanction for failure to comply with a court order.
Though “[d]ismissal with prejudice is not proper unless ‘the district court finds a
clear record of delay or willful conduct and that lesser sanctions are inadequate to
correct such conduct,’” the Court is not dismissing the case with prejudice. Zocaras v.
Castro, 465 F.3d 479, 483 (11th Cir. 2006) (quoting Betty K Agencies, Ltd., 432 F.3d at
1339). The Eleventh Circuit normally applies “‘a less stringent standard of review to a ...
dismissal of a suit without prejudice[ ] because the plaintiff would be able to file his suit
again.’” Brutus v. Internal Revenue Serv., 393 F. App’x 682, 684 (11th Cir. 2010)
(quoting Boazman v. Econ. Lab., Inc., 537 F.2d 210, 212-23 (5th Cir. 1976)); see also
Harris v. Warden, 498 F. App’x 962, 964 (11th Cir. 2012) (“A dismissal without prejudice
generally does not constitute abuse of discretion, even for a single violation of a court
order, because the affected party may simply re-file.”).
III.

CONCLUSION

Because the Plaintiff’s complaint fails to state a claim upon which relief may be
granted, the Defendant’s motion to dismiss (Doc. 1) is GRANTED, and the case is
DISMISSED without prejudice. Alternatively, the case is DISMISSED without
prejudice for the Plaintiff’s failure to comply with a court order.
SO ORDERED, this 9th day of March, 2015.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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