McLeod v. Wal-Mart Stores, Inc. et al
Filing
64
ORDER granting 30 Defendants' Motion for Summary Judgment and OVERRULING 37 Plaintiff's Objections to the Magistrate Judge's Order. Defendants' Objections to the Magistrate Judge's Order granting in part and denying in part 53 Defendants' Motion to Exclude Plaintiff's Expert Witness is DISMISSED AS MOOT. The Clerk is instructed to dismiss the case and enter an order of final judgment. Signed by Chief Judge Lisa G. Wood on 7/18/2012. (csr)
in the anittb Otatto
Dttrttt Court
for the 6outbern AtOdd of 4torgta
Mamma Mbizion
DEBRA KATHLEEN MCLEOD,
Plaintiff,
VS.
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WAL-MART STORES, INC.;
WAL-MART STORES EAST, L.P.; and
WAL-MART ASSOCIATES, INC.,
Defendants.
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CV 511-080
ORDER
Presently before the Court is the Defendants' Motion for
Summary Judgment, the Plaintiff's Objection to Magistrate Judge
James E. Graham's Order denying the Plaintiff's Motion for
Sanctions, and the Defendants' Objection to Magistrate James E.
Graham's Order granting in part and denying in part the
Defendants' Motion to Exclude the Plaintiff's Expert Witness.
Dkt. Nos. 30, 37, & 53. Upon due consideration, the Defendants'
Motion for Summary Judgment is GRANTED, (Dkt. No. 30), the
Plaintiff's Objection to the Magistrate Judge's Order denying
sanctions is OVERRULED, (Dkt. No. 37), and the Defendants'
Objection to the Magistrate Judge's Order granting in part and
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denying in part the Defendants' Motion to Exclude Plaintiff's
Expert Witness is
DISMISSED
as
MOOT.
Dkt. No. 53.
BACKGROUND
Plaintiff Debra McLeod filed suit in this Court on August
8, 2011, asserting claims of false arrest, malicious
prosecution, and intentional infliction of emotional distress.
Dkt. No. 1. The gravamen of Plaintiff's Complaint is that she
was wrongfully accused of (and thereafter arrested and indicted
for) stealing $2,000.00 from the Wal-Mart where she was employed
as an assistant manager. As the Court has been moved by the
Defendants for summary judgment, it must construe the facts, to
the extent that they are supported by the record, in favor of
the Plaintiff. See Garczynski v. Bradshaw, 573 F.3d 1158, 1165
(11th Cir. 2009) (noting that at the summary judgment stage the
court must determine the relevant set of facts "and draw all
inferences in favor of the opposing party'to the extent
supportable by the record.'" quoting Scott v. Harris, 550 U.S.
372, 381 n.8 (2007)). With this in mind, the pertinent
background facts are discussed below.
On August 13, 2007, personnel at Wal-Mart Store No. 593,
located in Douglas, Georgia reported that a "loan bag"
containing $2,000.00 was missing.' Dkt. No. 30, Att. No. 1 at ¶
'A "loan bag" is a bank bag containing currency used by the store to make
change or replenish cash registers. Dkt. No. 30-1 at 2. At the beginning o
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^1
2. After learning that the loan bag was missing, the store's
manager, Steven Phillips, contacted the store's Asset Protection
Coordinator, Selma Lamb, and directed her to investigate the
matter by reviewing surveillance footage. Dkt. No. 30, Att. No.
3, Lamb Dep. at 59. Ms. Lamb and her subordinate, Asset
Protection Associate Laura Spivey, proceeded to investigate the
matter over the next couple of days. To do so, Ms. Lamb and Ms.
Spivey obtained the Digital Video Recording ("DVR") footage of
the Customer Service Podium ("CSM")/tobacco register from August
12, 2007 to determine if the loss could be detected. Id. at 76.
The objective of this review was to identify the individuals who
had accessed the drawers of the CSM podium on August 12, 2007.
Id. at 72.
Ms. Lamb testified that two suspects were established after
reviewing the CSM DVR footage. Id. at 77. One was a non-party,
Rachel White, who worked for Wal-Mart as a customer service
manager. Id.. at 77-78. Ms. Lamb testified that Ms. White was
eliminated as a suspect due to the location at which the loan
bag was ultimately found, as Ms. White was never observed
entering that particular area. Id. at 80. The Plaintiff was
established as the second suspect due to footage documenting her
activities at the CSM podium in the late afternoon of August 12,
each day, two loan bags are signed out by a customer service manager and kept
in a locked drawer at the Customer Service Manger ("CSM") podium, located at
the store's "tobacco register." Dkt. No. 30, Att. No. 1 at ¶ 2.
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II
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2007 shortly before her shift ended. Ms. Lamb testified that in
reviewing the footage it appeared to her that Plaintiff accessed
the drawer and placed something on top of the CSM podium. Id. at
91. Then, according to Ms. Lamb, the Plaintiff turned and
retrieved broken-down register boxes (folded cardboard boxes
which once held plastic merchandise bags) that were at the end
of register eighteen (18). Id. Next, Ms. Lamb opined that
Plaintiff turned around and placed the broken-down register
boxes on top of the CSM podium, picked them back up, and then
proceeded to carry the broken-down boxes to the back of the
store where the baler was located. Id. Other video surveillance
footage was utilized to track Plaintiff's movement from the CSM
podium to the back of the Wal-Mart where the baler was located.
There is no surveillance of the baler itself. That is,
Plaintiff walked to one of the few areas in Wal-Mart not covered
by cameras. At oral argument, however, the parties represented
that there was no dispute that the Plaintiff did indeed place
the broken-down boxes in the baler.
Ms. Lamb and Ms. Spivey determined that Plaintiff's actions
were consistent with someone removing the loan bag from the
drawer, placing it inside the stack of broken-down register
boxes, and taking the loan bag and boxes to the baler. Ms. Lamb
testified that after reviewing this footage she felt that the
Plaintiff was a "very strong suspect" in the theft. Id. As is
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4
discussed below, Ms. Lamb and Ms. Spivey eventually expressed
such sentiments to the police.
In contrast to Ms. Lamb's testimony, Plaintiff offers a
differing version of events. Plaintiff acknowledges that she
had a key to the drawer containing the loan bag, but denies that
she accessed the loan bag drawer on August 12, 2007. Dkt. No. 44
at 3. She avers that she spent time at the CSM podium that day
to help out the other CSM's as Mr. Phillips had asked her to
"watch over" the front end of the store. Id. at 1-3. Most
significantly, Plaintiff maintains that she was in no way
responsible for the theft that occurred.2
After reviewing this footage, Ms. Lamb reported her
findings to Mr. Phillips. Dkt. No. 44 at 3. Mr. Phillips told
Ms. Lamb to call the Regional Security Manager, Michael Reese,
and apprise him of the status of her investigation. Id. at 4.
When prompted by Mr. Reese, Ms. Lamb told him that she was not
2
The Court has been provided with the DVR footage which documents the
Plaintiff's movements at the CSM podium shortly before her shift ended on
August 12, 2007. Dkt. No. 28. In addition, the Court reviewed this video in
the presence of opposing counsel at the oral argument held on July 11, 2012.
The parties offer vastly different contentions as to what the footage does,
or does not, show. The footage is taken from a considerable distance and the
Plaintiff's back largely obstructs a clear view of what her hands are doing.
However, the footage does show the Plaintiff shortly before her shift ends:
(1) alone at the CSN podium; (2) facing the CSM podium and bending over in
the vicinity of where the drawers were located; (3) straightening herself
upright; (4) turning toward the carousel behind her (register eighteen),
where she had earlier placed a stack of broken-down register boxes; (5)
retrieving the stack of boxes and then turning and moving them back to the
top of the CSM podium; and (6) lifting the entire stack of broken-down boxes
off of the CSM podium and walking away towards the back of the store where
the baler was located. Dkt. No. 28.
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100% sure as to her findings. Id. In response, Mr. Reese told
Ms. Lamb to allow the police to handle the situation going
forward. Id.
Shortly thereafter, Ms. Lamb called Detective Antonio Ward
who had been previously assigned to the case. Id. She explained
to Detective Ward what she believed the DVR footage of the CSM
podium revealed, and expressed her conclusions. Detective Ward
asked if Wal-Mart had located the missing loan bag, to which Ms.
Lamb responded that it had not. Dkt. No. 30, Att. No. 3, Lamb
Dep. at 122-131. After this interchange, Detective Ward
instructed Ms. Lamb and Ms. Spivey to make written statements as
to what they had observed on the video and to make a copy of the
DVR for his viewing. Id. at 131.
Following Ms. Lamb's discussion with Detective Ward, Ms.
Lamb and Ms. Spivey proceeded to search for the loan bag. Id. at
133-144. In doing so, the two continued to review DVR footage
in an attempt to identify the bale which came out of the baler
after Plaintiff's shift ended on August 12, 2007. Ms. Lamb and
Ms. Spivey allege that they reviewed footage from a camera
located in the general merchandise receiving area from which
they were able to observe a distinctive colored box in the bale
on the afternoon of August 12, 2007. Dkt. Mo. 30 at 6. The two
This footage was subsequently re-recorded over by Nat-Mart, and thus, is no
longer available. It is also the subject of Plaintiff's Motion for Sanctions
discussed below.
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also testified that they went to the baler where they were able
to identify the specific bale (with the distinctively colored
box) and began to search its contents. As the two sorted
through the boxes in this bale, they found the unaccounted for
loan bag, empty, amongst broken-down register bag boxes. Dkt.
No. 30, Att. No. 3, Lamb Dep. at 144-149; Dkt. No. 30, Att. No.
4, Spivey Dep. at 110-131. After this development, Mr. Phillips
called Detective Ward to inform him that the empty loan bag had
been found. Dkt. No. 30, Att. No. 3, Lamb Dep. at 154.
At some point in time, Detective Ward met with Ms. Lamb and
reviewed the DVR recording of Plaintiff at the CSM podium. Dkt.
No. 30, Att. No. 5, Ward Dep. at 74-75. During this viewing,
Ms. Lamb described her impression as to what she thought the DVR
demonstrated. Id. Ms. Lamb also told Detective Ward about the
circumstances under which the empty loan bag had been found. Id.
Detective Ward, thereafter, obtained a warrant from the Coffee
County Magistrate Court for the Plaintiff's arrest. Id. at 48.
Subsequently, the Plaintiff's case was taken before the grand
jury by District Attorney John Rumker, and an indictment was
issued. 4 Dkt. No. 30, Att. No. 6, Rumker Dep. at 12. The
criminal case against the Plaintiff, however, was eventually
dismissed after D.A. Rumker concluded that he would not be able
Notably, Detective Ward was the only witness who testified before the grand
jury. No one from Wal-Mart appeared. Dkt. No. 30, Att. No. 6, Rumker Dep. at
12.
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to successfully prosecute the case, and the Plaintiff passed a
polygraph test. Id. at 15.
MOTION FOR SANCTIONS
Plaintiff filed a Motion for Sanctions due to alleged
spoliation of evidence. Dkt. No. 20. Plaintiff submits that the
Defendants' destruction of video surveillance located in the
general merchandise area, which was allegedly used to identify
the first bale of boxes taken out of the store following
Plaintiff's shift, amounts to spoliation. This motion was
referred to the Magistrate Judge, and by Order on March 30,
2012, Magistrate Judge James E. Graham denied the Plaintiff's
Motion. Dkt. No. 33. The Plaintiff has objected to this Order.
Dkt. No. 37. After carefully considering the parties'
respective briefs, and holding oral argument on the matter, the
Court concurs with the Magistrate Judge and finds that sanctions
are not in order.
The video that is the subject of the current motion for
sanctions is film that shows the transport of large bales from
the store to the parking lot. It was used by the Defendants to
locate the bale which was moved to the Wal-Mart parking lot
after Plaintiff's shift ended on August 12, 2007. The parking
lot at Wal-Mart contained four rows of bales, all of which
contained numerous large bales of compressed and bundled
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$
cardboard. Searching through each one of these large bales
would have been a considerable task. Thus, the utility of this
footage was to give the Wal-Mart representatives a location to
start their search for the missing loan bag as opposed to
randomly selecting which bale to search first. Ultimately, this
video was re-recorded over by Wal-Mart in the course of its
routine recording practice. Dkt. No. 23 at 10. To be clear, the
missing footage would not show the Plaintiff (or anyone else)
place items in the baler. Indeed, there was never footage
documenting the Plaintiff's activities at the baler as that is
one of the few areas of Wal-Mart not covered by cameras.
Rather, the video at issue covers the transport of bales out of
Wal-Mart to the parking lot.
Spoliation is the "destruction or significant alteration of
evidence, or the failure to preserve property for another's use
in pending or reasonably foreseeable litigation." Graff v. Baja
Marine Corp., 310 F. App'x 298, 301 (11th Cir. 2009) (internal
quotations and citations omitted). Federal courts have broad
discretion to impose spoliation sanctions against litigants as
part of their inherent power to manage their own affairs. In re
Delta/AirTran Baggage Fee Antitrust Lit., 770 F. Supp. 2d 1299,
1305 (N.D. Ga. 2011) . Federal law in this circuit does not set
forth specific guidelines in determining whether sanctions for
spoliation are appropriate. Flury v. Diamler Chrysler Corp., 427
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F.3d 939, 944 (11th Cir. 2005) . Consequently, the Court will
examine Georgia law in determining whether sanctions for
spoliation are warranted. Id.
Georgia law in this context provides that the deciding
court must consider: "(1) whether the party seeking sanctions
was prejudiced as a result of the destruction of the evidence;
(2) whether the prejudice could be cured; (3) the practical
importance of the evidence; (4) whether the party who destroyed
the evidence acted in good or bad faith; and (5) the potential
for abuse if expert testimony was not excluded." AMLI
Residential Prop. Inc. v. Ga. Power Co., 667 S.E.2d 150, 154
(Ga. Ct. App. 2008). A finding of bad faith can be based on
"direct evidence or on circumstantial evidence where certain
factors converge." Thornton v. Blitz U.S.A., Inc., 2011 WL
7693023, at *1 (S.D. Ga. Mar. 24, 2011) (citing Ati. Sea Co. v.
Anais Worldwide Shipping, Inc., 2010 WL 2346665, at *1 (S.D.
Fla. June 9, 2010)).
The Magistrate Judge ultimately concluded that four of
these factors militated against assessing sanctions, and the
remaining factor was not applicable. Dkt. No. 33 at 4-7. This
Court agrees with the Magistrate Judge's conclusion. In
analyzing the pertinent factors, sanctions are clearly not in
order.
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First, the practical importance of the re-recorded video
footage is non-existent. Pressed into articulating what it
could possibly show that would have made a difference,
Plaintiff's counsel could not name anything. Neither can the
Court. Plaintiff essentially argues that because it cannot be
produced it must be exculpatory. Moreover, summary judgment
would still be in order, necessary truly, even if the testimony
about the original baling film were excluded. Stated
differently, Plaintiff's claims for false arrest and malicious
prosecution fail for multiple reasons with or without the
destroyed evidence. Plaintiff wants to characterize the film
that was overwritten as a "smoking gun." Dkt. No. 37 at 3. The
two problems with such a characterization are that it isn't a
gun, and it doesn't smoke. The only significance of the footage
is that it helped the Defendants narrow their search for the
empty loan bag. The parking lot at Wal-Mart contained four rows
of large bales of cardboard. Without this footage the
Defendants would have been forced to begin cutting into bales
without knowing which bale was placed in the parking lot after
the Plaintiff's shift.
Second, the Plaintiff is in no way prejudiced by the
absence of this footage. Again, when pressed on this point at
oral argument Plaintiff's counsel was unable to even hypothesize
what this video could have shown which would be exculpatory to
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the Plaintiff or otherwise state how the absence of this video
serves to prejudice the Plaintiff.
Finally, Plaintiff has submitted no evidence to the Court direct or circumstantial - that bespeaks bad faith on behalf of
the Defendants in destroying this footage. Plaintiff's sole
argument regarding bad faith is that her former criminal
attorney (in the prior criminal case in which she was a
defendant accused of theft) originally sought the video in
question. Plaintiff argues that her former attorney asked for
production of the video which is no longer available. She
further argues that Plaintiff's non-compliance in this regard is
evidence of bad faith.
The original subpoena for production of documents filed in
Plaintiff's criminal case asked for "all store surveillance
tapes taken at all locations within your store . . . on August
11, 2007 and August 12, 2007 . . . to be used as evidence by the
Defendant." Dkt. No. 23-1 at 106-07. One of two fatal problems
for the Plaintiff is that roughly one week later, the criminal
defense attorney amended the subpoena for production of
documents by altering the original request and seeking
surveillance tapes from August 12, 2007, only from specific
locations within the store. Id. at 109. The video at issue (of
the general merchandise receiving area) was not requested by the
amended subpoena. Id. The criminal defense attorney filed a
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broad Motion to Preserve Evidence in the criminal case, but the
Court is unaware of whether the Motion was granted.
Furthermore, the Motion to Preserve Evidence filed by
Plaintiff's former criminal defense attorney cannot be read to
cover the video at issue either. Id. at 106. Simply mentioning
the word "tapes" without any other description or direction was
insufficient to cover the specific video at issue. Therefore,
Plaintiff's argument that the Defendants failed to comply with
her prior attorney's requests is baseless. Despite Plaintiff's
tenuous argument in this regard, there is simply no evidence
that the destruction of this video in the regular course of
business was done in bad faith. Thus, none of the factors
analyzed under Georgia law favor assessing sanctions.
Secondly, "[tlo meet the standard for proving spoliation,
the injured party must show that the alleged tortfeasor was put
on notice that the party was contemplating litigation." Craig v.
Bailey Bros. Realty, 697 S.E.2d 888, 891 (Ga. Ct. App. 2010)
The Defendants in this matter were not on notice that the
Plaintiff was contemplating civil litigation when this evidence
was destroyed. 5 Indeed, the Defendants were not notified of
5 mis conclusion is strengthened when this case is compared to the authority
cited in Plaintiff's Objection. Plaintiff cites Wal-Mart Stores, Inc. V. Lee,
659 S.E.2d 905 (Ga. Ct. App. 2008) in support of her position. However, Lee
is markedly different than the case sub judice, as in that case Wal-Mart was
sent a letter in an attempt to settle the case and avoid "costly litigation"
prior to the time that the video evidence was destroyed. Id. at 909. In
contrast, the Defendants in this action were first notified of contemplated
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Plaintiff's intention to bring suit until nearly eight months
after this video surveillance was recorded over in the regular
course of business. 6 Dkt. No. 23 at 13. At the time this video
was destroyed the only pending or contemplated litigation was
the criminal prosecution against the Plaintiff. Plaintiff
provides no authority which dictates that being the victim of
criminal theft put the Defendants on notice that they might
someday be a defendant in a civil suit.
Accordingly, Plaintiff's Objection is OVERRULED, (Dkt. No.
37), and the Magistrate Court's Order is AFFIRMED. Dkt. No. 33.
MOTION FOR SUMMARY JUDGMENT
1. Legal Standard
The Federal Rules of Civil Procedure provide that a party
may move for summary judgment through identifying each claim or
defense on which summary judgment is sought. Fed. R. Civ. P.
56(a) . Summary judgment is appropriate "if 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." Id. A fact
is "material" if it "might affect the outcome of the suit under
the governing law." FindWhat Investor Grp. v. FindWhat.com , 658
litigation nearly eight months after the video was destroyed. Dkt. No. 23 at
13; Dkt. No. 23, Ex. K.
6
The DVR footage of the general merchandising area was recorded on August 12,
2007. Since this footage was not saved within approximately sixty (60) days,
it would have been recorded over as a matter of normal store procedure. Dkt.
No. 23 at 10. Wal-Mart was first notified by the Plaintiff about potential
civil litigation on June 16, 2008. Dkt. No. 25, Ex. K.
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F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute over such a
fact is "genuine" if the 'evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Id. In
making this determination, the court is to view all of the
evidence in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party's favor. Johnson v.
Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th
Cir. 2000)
The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . To
satisfy this burden, the movant must show the court there is an
absence of evidence to support the non-moving party's case. Id.
at 325. If the moving party discharges this burden, the burden
then shifts to the nonmoving party to go beyond the pleadings
and present specific evidence showing that there is a genuine
issue of material fact or that the moving party is not entitled
to judgment as a matter of law. Id. at 324. In doing so, the
nonmoving party "must do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)
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2. Discussion
A. False Arrest/Malicious Prosecution
Plaintiff's claims for false arrest and malicious
prosecution fail for at least three reasons: (1) there is no
evidence of malice on behalf of the Defendants; (2) Plaintiff is
unable to show that the Defendants lacked probable cause; and
(3) Plaintiff's arrest and subsequent indictment was the result
of the independent actions of law enforcement. Consequently,
Defendants' motion for summary judgment is granted as to these
two claims.
a. Malice and Probable Cause
Malice and a lack of probable cause are necessary elements
for both false arrest and malicious prosecution under Georgia
law. 7 Compare O.C.G.A. § 51-7-1, with O.C.G.A. § 51-7-40.
Since these are the only disputed elements in this case, the
Court will analyze the Plaintiff's false arrest and malicious
prosecution claims simultaneously.
From the outset, the Court notes that neither false arrest
nor malicious prosecution are favored under Georgia law, as it
' Under Georgia law, to state a claim for malicious prosecution a plaintiff
must show "(1) prosecution for a criminal offense; (2) instigated without
probable cause; (3) with malice; (4) under a valid warrant, accusation or
summons; (5) which has terminated favorably to the plaintiff; and (6) has
caused damage to the plaintiff." Barnette v. Coastal Hematology & Oncology,
P.C., 670 S.E.2d 217, 220 (Ga. Ct. App. 2008). Likewise, to state a claim
for false arrest a plaintiff must show "(1) an arrest under the process of
law; (2) without probable cause; and (3) made maliciously." Desmond v.
Troncalli Mitsubishi, 532 S.E.2d 463, 467 (Ga. Ct. App. 2000).
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is public policy to encourage citizens to bring to justice those
who appear guilty. Desmond, 532 S.E.2d at 466-67. Thus, the
Plaintiff has a particularly heavy burden in this case due to
the "countervailing public interest [of] encouraging the citizen
to discharge his duty to society to vindicate violations of the
law." K Mart Corp. v. Griffin, 375 S.E.2d 257, 258 (Ga. Ct. App.
1988) . In light of this distrust, the existence of probable
cause "usually is taken out of the hands of the jury, and held
to be a matter of decision by the courts." Zohoury v. Home
Depot, 521 S.E.2d 389, 391 (Ga. Ct. App. 1999) (internal
quotations and citations omitted); see also McKissick v. S.O.A.
Inc., 684 S.E.2d 24, 27 (Ga. Ct. App. 2009) ("The question of
probable cause is a mixed question of law and fact. Whether the
circumstances alleged to show probable cause existed is a matter
of fact, to be determined by the jury, but whether they amount
to probable cause is a question of law for the court.")
In this case, Plaintiff has not provided the Court with any
evidence that the Defendants (or more precisely Ms. Lamb or Ms.
Spivey) held any sort of ill-will or personal grievance toward
her. When questioned on this point at oral argument,
Plaintiff's counsel acknowledged that there was no evidence of
personal ill-will or actual malice toward the Plaintiff on the
part of Wal-Mart. Plaintiff's arguments contained in her brief
to the contrary are largely based on her contention that Ms.
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Lamb and Ms. Spivey overstated what the DVR footage of the CSM
podium purported to show the Plaintiff do. Notably, Ms. Lamb
and Ms. Spivey largely qualified their opinions as to what the
DVR footage showed in stating that it "appeared" that the
Plaintiff accessed the drawer and took something out. See, e.g.,
Dkt. No. 43 Ex. C, Lamb Statement (stating that it "appears that
Ms. McLeod opens the second podium drawer and is searching
through the contents . . . then [she] appears to place something
on top of the podium"); Dkt. No. 43 Ex. D, Spivey Statement
(stating that "Ms. McLeod appeared to be rummaging through the
drawer and it appeared to me she may have pulled something out
of the drawer.")
Despite Plaintiff's challenges in this regard, there is
simply nothing in the record before the court which tends to
show personal spite or a "general disregard of the right
consideration of mankind, directed by chance against" the
Plaintiff. Desmond, 532 S.E.2d at 467. This is all the more
clear given the undisputed fact that Ms. Lamb and Ms. Spivey
handed the police the actual video, allowing him the opportunity
to draw his own independent conclusion.
Absent any actual malice, the Plaintiff must proceed under
the theory that malice is to be inferred due to a total lack of
probable cause. See K Mart Corp. v. Griffin, 375 S.E.2d at 258
(noting that "[mJalice may be inferred from a
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18
total
lack of
probable cause.") (emphasis in original). Hence, Plaintiff's
claims for false arrest and malicious prosecution necessarily
hinge on whether Plaintiff can show a total lack of probable
cause. Id. Importantly, in instances such as this, where there
is no evidence of malice other than such inference as may be
drawn from proof of want of probable cause, and "that proof
shows some circumstances pointing to the guilt of the accused,
although insufficient to exclude every other reasonable
hypothesis, the essential ingredient of malice is not so
established as to entitle the plaintiff in an action for
malicious prosecution (or malicious arrest) to recover." White
v. Atlanta Hous. Auth., 423 S.E.2d 40, 41 (Ga. Ct. App. 1992)
(internal citations and quotations omitted). As is discussed
below, Plaintiff is unable to sustain her burden and show a
total lack of probable cause, and therefore, no inference of
malice is warranted. Further, at the very least, the evidence
in this case "shows some circumstances pointing to the guilt of
the [Plaintiff]," even if it is insufficient to exclude every
other reasonable hypothesis. Id. Thus, Plaintiff has not
sustained her burden in showing malice.
In determining whether probable cause existed, the question
is, not whether the plaintiff was guilty, but whether defendants
had reasonable cause to so believe. Gibbs v. Loomis, Fargo, &
Co., 576 S.E.2d 589, 592 (Ga. Ct. App. 2003). Stated
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differently, this inquiry focuses on whether "the circumstances
were such as to create in the mind of defendants a reasonable
belief that there was probable cause for the arrest and
prosecution." Id. (internal citations and quotations omitted)
In this context, probable cause is defined as the existence of
such facts and circumstances as would excite the belief in a
reasonable mind, that the person charged was guilty of the crime
for which she was arrested. Id.
Here, Plaintiff was indicted by a grand jury pursuant to a
warrant issued by the Coffee County State Magistrate Court.
Consequently, it is Plaintiff's burden to show that probable
cause did not exist. See Thompson v. Howard Bros., 657 S.E.2d 4,
5 (Ga. Ct. App. 2008) (noting that "[a]lthough evidence of an
indictment is not conclusive, it is prima facie evidence of
probable cause which shifts the burden to the plaintiff to come
forward with specific facts tending to show that probable cause
did not exist for his arrest and that the charges against him
were instead motivated by malice.").
In turning to the undisputed facts on the record, it is
apparent that the Plaintiff cannot demonstrate a lack of
probable cause because the Defendants had legitimate reasons to
report the Plaintiff as a suspect to the police. Much of this
evidence comes in the form of DVR footage of the CSM podium
utilized by the Defendants in investigating the theft of the
AO 72A
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20
loan bag. The Plaintiff provides vigorous argument as to what
inferences are to be drawn from this footage, but it is
undisputed that the footage shows the Plaintiff: (1) stand alone
at the site where the loan bag was stolen from - the CSM podium;
(2) bend over at the CSM podium in the vicinity of where the
loan bag was located; (3) straighten herself upright; (4) turn
toward the carousel behind her, where she had earlier placed a
stack of broken-down register boxes; (5) retrieve the stack of
boxes and then turn and move them back to the top of the CSM
podium; and (6) lift the entire stack of register boxes off of
the CSM podium and walk away. Dkt. No. 28. Subsequent footage
follows the Plaintiff walk from the CSM podium to the back of
the Wal-Mart where Plaintiff admits that she placed broken-down
boxes in the baler. There are no cameras which would cover what
she or anyone else did at the baler.
True, the video showing the subsequent baling stack
transport is not available. However, as discussed previously,
no one, including Plaintiff, has articulated any use for the
missing video aside from narrowing down which stack of baled
cardboard to break open first to find the empty loan bag.
Ms. Lamb and Ms. Spivey felt that McLeod's behavior was
suspicious and consistent with someone removing the loan bag
from the drawer, placing it inside the stack of broken-down
register bag boxes, and taking them to the area near the baler.
AO 72A
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21
Dkt. No. 30 at 18. Their belief was buttressed when an empty
loan bag was later discovered amongst broken-down register bag
boxes. Dkt. No. 30, Att. No. 3, Lamb Dep. at 144-149; Dkt. No.
30, Att. No. 4, Spivey Dep. at 110-131. In the several hours of
footage reviewed by Ms. Lamb and Ms. Spivey, it appeared to them
that only two individuals potentially accessed the second drawer
on the CSM podium on the day that the loan bag went missing.
Dkt. No. 30, Att. No. 3, Lamb Dep. at 77-79. Of these two
individuals, Plaintiff was the only one observed carrying
broken-down register boxes to the rear of the store. Due to
these circumstances, the Defendants contacted the police to
report the Plaintiff as a suspect in the theft. It is apparent
from this evidence that "the facts as they appeared at the time
of instituting the prosecution were such as to lead a person of
ordinary caution to entertain a belief that the accused was
guilty of the offense charged." 8 Wal-Mart Stores, Inc. v.
Blackford, 449 S.E.2d 293, 295 (Ga. Ct. App. 1994)
Georgia case law supports this conclusion. In Gibbs v.
Loomis, Fargo, & Co., 576 S.E.2d 589 (Ga. Ct. App. 2003), the
plaintiff, who worked as a Loomis Fargo "messenger" and
transported deposits from the Loomis Fargo consolidation
facility to various banks, was accused of theft. Id. at 590.
8
Or, at the very least, these circumstances show "some circumstances pointing
to the guilt of the [Plaintiff]," negating Plaintiff's ability to create an
inference of malice on behalf of the Defendants. White, 423 S.E.2d at 41.
AO 72A
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II
II
22
Gibbs was arrested and indicted for the theft, but the case was
later placed in the dead docket. Id. at 592. Subsequently,
Gibbs sued his employer for malicious prosecution arguing that
it had lacked probable cause in initiating his arrest. The
Georgia Court of Appeals ultimately affirmed the trial court's
grant of summary judgment because it found that the defendants
had probable cause to believe that Gibbs was guilty of the
theft.
The court pointed out that the employer had spent three
hours reviewing security camera footage in an attempt to track
the missing money. Id. at 592. Based on this review, the
defendant became convinced that there was indeed an unaccounted
for bag of money. Id. The footage did not clearly show who had
taken the money, but the defendant was able to determine from
the evidence that no one removed the bag of money before Gibbs
entered. Id. The security camera did not conclusively show
Gibbs exit the room with the stolen money, however, the
defendants did conclude that after Gibbs left the room the money
was no longer there. Id. Based on this investigation, it
appeared to the defendant that Gibbs had taken the bag of money,
and, as such, the police were informed of the investigation. Id.
The court determined that the facts discussed above would lead a
person of ordinary caution to entertain belief that Gibbs was
guilty of the theft. Id. at 592-93.
23
AO 72A
(Rev. 8/82)
Likewise, in the present case, it is undisputed that WalMart was the victim of a theft. 9 Also similar to Gibbs, Ms. Lamb
and Ms. Spivey spent hours reviewing the video footage of the
day that the loan bag was taken in an effort to determine its
whereabouts. Plaintiff, similar to the plaintiff in Gibbs, was
one of the limited number of people who had access to the site
where the money was taken from on the day in question. In fact,
Plaintiff was one of two people who Ms. Lamb and Ms. Spivey
concluded had access to the second drawer of the CSM podium
where the money had been. Of these two individuals, Plaintiff
was the only individual documented leaving the area with brokendown register boxes. The empty loan bag was ultimately found
amongst broken-down register boxes. While the video footage is
not clear enough to conclusively show Plaintiff accessing the
drawer and take the loan bag, neither was the footage in Gibbs.
However, just like in Gibbs, the investigation conducted by the
Defendants in this case was certainly enough to lead a person of
ordinary caution to entertain a belief that the Plaintiff had
committed the theft.
Further, much like the Plaintiff argues in the case sub
judice,
Gibbs also argued that the evidence utilized by the
employer did not amount to probable cause because the security
9 Plaintiff's counsel acknowledged at oral argument that Plaintiff did not
contest that Wal-Mart was a victim of theft.
24
AO 72A
(Rev. 8/82)
camera evidence could not establish whether the missing money
was ever in the holding room, the camera did not cover the
entire room, and the photographs did not clearly show how many
bags of money Gibbs exited the room with. Id. at 593. The court
in Gibbs was not persuaded by such arguments because they were
"primarily concern[ed] whether Gibbs was, in fact, guilty of
theft-an irrelevant issue." Id. Likewise, Plaintiff's alternate
explanations of the DVR footage are not dispositive to the
matter at hand.
Plaintiff's counsel makes good arguments for why a jury
should not find McLeod guilty of theft beyond a reasonable
doubt. However, the undisputed facts show probable cause and a
lack of malice. Plaintiff simply misses the mark in this
regard. Here, the inquiry does not focus on whether Plaintiff
was guilty of the theft, but rather whether the Defendants were
reasonable to be believe she was a suspect. Smith v Trust Co.
Bank, 450 S.E.2d 866, 869 (Ga. Ct. App. 1994).
b. Independent Investigation
In addition to Plaintiff's inability to establish the
necessary elements for her claims of false arrest and malicious
prosecution, the Defendants are entitled to summary judgment
because the decision to arrest the Plaintiff was made
independently by Detective Ward. Under Georgia law, a defendant
may successfully defend against a claim of malicious prosecution
A072A
(Rev. 8/82)
25
or false arrest when the arresting officer provides an
uncontroverted testimony "that the decision to arrest plaintiff
was made solely by him in the exercise of his professional
judgment and independently of any exhortations by the
defendants.
"
1c) Barnette, 670 S.E.2d at 221 (citations omitted).
This was precisely what happened in this case.
As to whether Detective Ward felt persuasion to make an
arrest from Ms. Lamb and Ms. Spivey, Detective Ward testified at
his deposition that:
[t]he r e wasn't no persuasion from either side, either
or, to make an arrest, because if I didn't have enough
evidence, I wouldn't have made an arrest. I don't
have a problem with not making an arrest.
Dkt. No. 30, Att. No. 5, Ward Dep. at 91. Similarly, when
confronted with the contention that he certainly "relied upon
the statements that were provided to [him] by Selma Lamb and
Laura Spivey" Detective Ward responded that he "went with the
DVR that I saw and after them finding the bag where it was
found." Id. at 92. When pressed further by Plaintiff's counsel
and asked whether he "relied on the accuracy of the statements
that were given to [him] by Laura Spivey and Selma Lamb . . . in
making the arrest determination?" Detective Ward responded:
I don't know how you figure that. I mean, they did
make statements and they did go over the DVR, but that
This defense is also available for false arrest. See, e.g., Jacobs v. Shaw,
465 S.E.2d 460, 462 (Ga. Ct. App. 1995) overruled in part on other grounds by
Infinite Energy, Inc. v. Pardue, 713 S.E.2d 456 (Ga. Ct. App. 2011)
AO 72A
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26
ain't got nothing to do with it. I mean, the money
bag was found in the bale your client had, and once
they found the bag, I was secure and confident that it
was her that did it, and that's what my decision was
based on.
Id.
In response to Detective Ward's testimony Plaintiff
speculates that perhaps Detective Ward did not conduct an
independent investigation. Dkt. No. 43 at 16. The thrust of this
argument is that Detective Ward only viewed the portion of the
surveillance documenting the Plaintiff's activities, 11 Ms. Lamb
and Ms. Spivey narrated the portion that he did watch, and the
only interview that he conducted was of Steve Phillips. Id.
These arguments simply do not negate the disinterested and
unequivocal testimony of Detective Ward that he was not urged to
make an arrest one way or the other, and that he based his
decision to arrest on what he viewed on the DVR footage and the
ultimate location and circumstances of where the loan bag was
found. To the extent that Ms. Lamb and Ms. Spivey
misrepresented the contents of the DVR footage, such actions are
of no import as the undisputed facts show that Detective Ward
11 Conversely, Plaintiff also presents the puzzling speculation that a jury
could conclude that Detective Ward never viewed the video surveillance at
all, despite his disinterested sworn testimony to the contrary. Dkt. No. 43
at 17. Aside from the inconsistent nature of Plaintiff's argument in this
regard, the Court can simply not draw this inference in favor of the
Plaintiff as it is not supported by the record. See Garczynski, 573 F.3d at
1165 (noting that at the summary judgment stage the court must determine the
relevant set of facts "and draw all inferences in favor of the opposing party
'to the extent supportable by the record." quoting Scott v. Harris, 550 U.S.
372, 381 n.8 (2007)).
AO 72A
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27
personally viewed the footage himself and denies that he was
persuaded by such statements.
The Georgia Court of Appeals has denied the defense
asserted by the Defendants on occasions where the officer did
not conduct an independent investigation, but rather merely
relied on the facts urged by the defendant as to what they had
observed. See, e.g., Corp. Prop. Inv. v. Muon, 549 S.E.2d 157,
161 (Ga. Ct. App. 2001) (finding that this defense was
inapplicable because "Officer Locke acted solely on the facts
urged by another without any independent investigation to
corroborate such allegations"). In contrast to such authority,
the facts here indicate that Detective Ward did not rely solely
(or otherwise) on the statements of others in making his
decision to effectuate the arrest. Rather, he "went with the
DVR that I saw" and "them finding the bag where it was found" in
deciding to effectuate the arrest of the Plaintiff. Dkt. No. 30,
Att. No. 5, Ward Dep. at 92; see also Id. at 49 (noting that he
felt he had enough evidence to arrest Plaintiff for the theft
"[f] ro m what I viewed on the video and after they discovered the
bag in some bales.").
Here, Detective Ward's testimony provides uncontroverted
evidence that the decision to arrest Plaintiff was made solely
by him in the exercise of his professional judgment and
independently of any exhortations by the Defendants.
28
AO 72A
(Rev. 8/82)
Plaintiff's counsel did all he could to try to get the Detective
to back away from his sworn testimony by asking him three times,
twice leading, whether the investigation was independent. The
Detective never wavered. Thus, Defendants are entitled to
summary judgment as to Plaintiff's claims for false arrest and
malicious prosecution for this additional reason. See McLeod v.
Pruco Life Ins. Co., 449 S.E.2d 895, 897 (Ga. Ct. App. 1994)
overruled in part on other grounds by Ferrell v. Mikula, 672
S.E.2d 7 (Ga. Ct. App. 2008) (holding that "any factual issue
generated by evidence that [the defendant's agent] indirectly
urged Detective English to give plaintiff a subpoena or else
take him to jail is rendered immaterial by Detective English's
uncontradicted testimony that the decision to arrest plaintiff
was made solely by him in the exercise of his professional
judgment, and independently of any exhortations by defendants'
agents."); Jacobs, 465 S.E.2d at 462 (affirming the trial
court's grant of summary judgment for false arrest and malicious
prosecution where officer's testimony provided that "[e]ven if
[the officer] relied on Shaw's statement as a factor in
determining to swear out the warrant against Jacobs, the
officer's affidavit makes clear that the basis for swearing out
the warrant also included his on-scene investigation, the review
of the report from the state regulatory agency noting the pump
29
AO 72A
(Rev. 8/82)
worked properly, his telephone conversation with Jacobs, and his
experience as a police officer.").
B. Intentional Infliction of Emotional Distress
Finally, Defendants have moved for summary judgment as to
Plaintiff's claim for intentional infliction of emotional
distress. In order to succeed on this theory in Georgia a
plaintiff must establish (1) intentional or reckless conduct;
(2) extreme and outrageous conduct; (3) a causal connection
between the wrongful conduct and the emotional distress; and (4)
severe emotional distress. Phinazee v. Interstate Nationalease
Inc., 514 S.E.2d 843, 844-45 (Ga. Ct. App. 1999). The
Defendants contend that its conduct as it related to the
Plaintiff was neither extreme nor outrageous as a matter of law.
The Court agrees and finds that the Defendants' conduct in
investigating the Plaintiff for theft and reporting the findings
to law enforcement was neither extreme nor outrageous as a
matter of law.
Liability for intentional infliction of emotional distress
"has been found only where the conduct has been so outrageous in
character, and 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." B i ven v.
Software, Inc. v. Newman, 473 S.E.2d 527, 529 (Ga. Ct. App.
AO 72A
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II
30
1996) (internal citations and quotations omitted). Whether
actions rise to the level of extreme and outrageous conduct
necessary to support a claim of intentional infliction of
emotional distress is generally a question of law. Id.
The Defendants' conduct does not even approach the
requisite level of outrageousness required under Georgia law.
See, e.g., Ferrell v. Mikula, 672 S.E.2d 7, 13 (Ga. Ct. App.
2008) (affirming grant of summary judgment on intentional
infliction of emotional distress claim where restaurant
incorrectly told police that patrons failed to pay for meal
resulting in their detention); Palmer v. Stewart Cntv. Sch.
Dist., 2005 WL 1676701, at *15-16 (M.D. Ga. June 17, 2005)
(finding that an allegation that the defendant had wrongfully
accused the plaintiff of theft, leading to her arrest, was not
extreme or outrageous as a matter of law). Rather, the
Defendants' employees merely investigated a theft of company
property and reported their opinions to the police. Further, in
Georgia it has long been established that being wrongfully
accused of dishonesty in the workplace falls below the bar of
what constitutes extreme and outrageous behavior. See, e.g.,
Abdul-Malik v. AirTran Airways, Inc., 678 S.E.2d 555, 560 (Ga.
Ct. App. 2009). Consequently, the Defendants are entitled to
summary judgment as to Plaintiff's intentional infliction of
emotional distress claim as well.
AO 72A
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II
31
C. Punitive Damages and Lost Wages
As the Defendants are entitled to summary judgment on the
merits of all of the Plaintiff's substantive claims, the
Plaintiff is not entitled to damages as to those claims.
MOTION TO EXCLUDE
Because the Court has granted the Defendants' Motion for
Summary Judgment the Court has no occasion to address the
Defendants' Objection to the Magistrate Judge's Order granting
in part and denying in part the Defendants' Motion to Exclude
the Plaintiff's Expert Witness. Accordingly, Defendants'
Objection is DISMISSED as MOOT. Dkt. No. 53.
CONCLUSION
Based on the reasoning set forth above, the Defendants'
Motion for Summary Judgment is GRANTED, (Dkt. No. 30), the
Plaintiff's Objection to the Magistrate Judge's Order denying
sanctions is OVERRULED, (Dkt. No. 37), and the Defendant's
Objection to the Magistrate Judge's Order granting in part and
denying in part the Defendants' Motion to Exclude Plaintiff's
Expert Witness is DISMISSED as MOOT. Dkt. No. 53. The Clerk of
court is instructed to dismiss the case and enter an order of
final judgment.
32
AO 72A
(Rev. 8/82)
SO ORDERED, this 18th day of July, 2012.
SA GODBEY iOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
33
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