B. et al v. WAL-MART STORES, INC.
Filing
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ORDER granting 26 Motion to Dismiss Claims of nuisance, denying 28 Motion to Dismiss the request for injunctive relief and granting 24 Motion to Dismiss the claim of fraud. Signed by Judge Richard L. Young on 10/3/2014. (TMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
A.B., K.M., M.M. by her natural guardian,
K.M., C.R., and K.R. by his natural
guardians A.B. and C.R.,
Plaintiffs,
vs.
WAL-MART STORES, INC.,
Defendant.
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No. 1:14-cv-00422-RLY-MJD
ENTRY ON DEFENDANT’S MOTIONS TO DISMISS PLAINTIFFS’ COUNTS
OF FRAUD AND MAINTENANCE OF A COMMON NUISANCE, AND
REQUEST FOR INJUNCTIVE RELIEF
Defendant Wal-Mart Stores East, LP (incorrectly named as Wal-Mart Stores, Inc.)
moves this court for partial dismissal of the Plaintiffs’ Complaint. Plaintiffs, proceeding
anonymously as A.B., K.M., M.M., K.R., and C.R., brought this lawsuit in state court
seeking damages and injunctive relief. Wal-Mart removed the case to this court based
upon diversity jurisdiction and, on May 7, 2014, filed three motions to dismiss. Pursuant
to Federal Rule of Civil Procedure 12(b)(6), Wal-Mart moves the court to dismiss
portions of the Complaint that seek injunctive relief and abatement and damages for the
maintenance of a nuisance. Pursuant to Rules 12(b)(6) and 9(b), Wal-Mart moves to
dismiss Plaintiffs’ claim of fraud. This entry addresses all three motions.
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I.
Background
The gruesome facts that give rise to this lawsuit require only brief mention. On
the evening of February 6, 2014, Michael Parrish (“Parrish”) stalked A.B. and K.M.,
adult females, and M.M., a minor, as they shopped inside a Wal-Mart store. (Complaint
¶ 14). When they returned to their vehicle in Wal-Mart’s parking lot, Parrish abducted
the three Plaintiffs at gunpoint and commenced a string of violent sexual assaults upon
A.B. and K.M., all in the presence of M.M. (Complaint ¶¶ 20–30). Plaintiffs allege that
although Wal-Mart’s security cameras captured the stalking and abduction from the
parking lot, no store personnel attempted to intervene or notify law enforcement.
(Complaint ¶ 32). The sexual violence began in the parking lot of an apartment complex
located behind the Wal-Mart store and continued thereafter at the Plaintiffs’ home, where
C.R., an adult male, had been babysitting K.R., a minor. (Complaint ¶¶ 26–29, 43). At
the Plaintiffs’ home, Parrish brutally assaulted C.R. and continued to subject A.B. and
K.M. to vicious sexual assaults. (Complaint ¶¶ 44–55).
The allegations central to this lawsuit concern Wal-Mart’s alleged failure to
respond to the attack and provide adequate security to invitees from the criminal acts of
third parties. In sum, Plaintiffs allege that Wal-Mart’s actions, and failures to act, caused
substantial harm to Plaintiffs for which they seek relief.
II.
Standards of Review
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the factual
matter alleged in the complaint. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir.
2011). A complaint must contain sufficient facts to state a claim upon which relief can
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be granted. Fed. R. Civ. P. 12(b)(6). On a motion to dismiss, the court accepts all facts
in the complaint as true, views them in the light most favorable to the plaintiff, and draws
all reasonable inferences in the plaintiff’s favor. Bonte v. U.S. Bank, N.A., 624 F.3d 461,
463 (7th Cir. 2010). A plaintiff must do more than simply recite the elements of a claim
and provide conclusory statements in support. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “[T]he complaint must contain sufficient factual matter, accepted as true, to
‘state a claim that is plausible on its face.’” Zellner v. Herrick, 639 F.3d 371, 378 (7th
Cir. 2011) (quoting Iqbal, 556 U.S. at 678).
When a plaintiff alleges fraud or mistake, Federal Rule of Civil Procedure 9(b)
requires that all such averments be stated with particularity. Particularity includes “the
identity of the person who made the misrepresentation, the time, place and content of the
misrepresentation, and the method by which the misrepresentation was communicated to
the plaintiff.” Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs.,
Inc., 536 F.3d 663, 668 (7th Cir. 2008) (quoting Gen Elec. Capital Corp. v. Lease
Resolution Corp., 128 F.3d 1074, 1078 (7th Cir. 1997)). Thus, this heightened pleading
standard “requires the complaint to contain more than the ‘short and plain statement of
the claim’ described in Rule 8(a)(2).” Schott v. Huntington Nat’l Bank, 914 F. Supp. 2d
933, 937–38 (S.D. Ind. 2012) (quoting Fed. R. Civ. P. 8(a)(2)). Plaintiff may, however,
assert malice, intent, and knowledge in general terms. Hefferman v. Bass, 467 F.3d 596,
601 (7th Cir. 2006).
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III.
Discussion
A.
Motion to Dismiss the Claim of Fraud
To state a claim of fraud in Indiana, a plaintiff must allege facts that plausibly
show a: “(i) material misrepresentation of past or existing facts by the party to be charged
(ii) which was false (iii) which was made with knowledge or reckless ignorance of the
falseness (iv) was relied upon by the complaining party and (v) proximately caused the
complaining party injury.” Reed v. Reid, 980 N.E.2d 277, 292 (Ind. 2012) (citation
omitted). Moreover, the complaint must demonstrate “the who, what, when, where, and
how” with more than “overly general allegations of fraud and misrepresentation.” Schott,
914 F. Supp. 2d at 941 (citations omitted).
Plaintiffs submit the following allegations in support of their claim of fraud: (1)
that Wal-Mart made “material representations” that it uses security cameras; (2) that
certain signs in Wal-Mart’s parking lot reading, “Security Cameras in Use,” as well as the
placement of security cameras on its property and a general “impression that Wal-Mart
employees are always watching their customers,” amount to such representations; (3) that
Wal-Mart represented that (i) “it offers security for its customers”; (ii) “it monitors its
property with security cameras”; (iii) its “cameras are for [the] security of its customers”;
and (iv) its customers “can feel safe”; (4) that “Wal-Mart knew that the representations
were false and intended to deceive the Plaintiffs”; and (6) that plaintiffs relied on the
representations to their detriment. (Complaint ¶¶ 72–77). Wal-Mart argues that the
foregoing allegations fall short of the heightened pleading standard imposed by Rule
9(b), and the court agrees.
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Specifically, Plaintiffs failed to sufficiently plead the particulars of the “what” and
the “how” elements. Plaintiffs do not allege a single, concrete instance where Wal-Mart
misrepresented a material fact. (See Complaint ¶¶ 72–77). At most they effectively
allege that the present, perceivable use of security cameras, and visible signs to that
effect, communicate to its customers an “impression” that Wal-Mart will provide security
against the criminal acts of third parties. (See id. ¶¶ 73–74). In Indiana, “fraud may not
be based on representations regarding future conduct, or on broken promises, unfulfilled
predictions or statements of existing intent which are not executed.” Doe v. Howe
Military Sch., 227 F.3d 981, 990 (7th Cir. 2000) (quoting Lycan v. Walters, 904 F. Supp.
884, 897 (S.D. Ind. 1995)). A person must make a “misrepresentation of past or existing
fact” to be liable for fraud. Lycan, 904 F. Supp. at 897. Plaintiffs allege no
misrepresentation of past facts; and Wal-Mart’s failure to respond appropriately—the
way in which it tacitly suggests that it would respond—amounts to a failed execution of
existing intent.
Even if signs reading, “Security Cameras in Use,” could constitute a
representation of a material fact, that Wal-Mart’s security system captured the actions of
Parrish establishes the statement’s truth, not falsity. (See Complaint ¶¶ 24, 32, 38
(describing the events caught on Wal-Mart’s security system)). The sign states neither a
representation of intent to provide security to customers nor a representation that WalMart will immediately respond to events captured on its cameras. Of course, these might
constitute the reasonable inferences of its customers. On a motion to dismiss, the court
does not weigh the merits of the allegations in the complaint; rather, it assesses whether
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the allegations contain sufficient factual matter to state a claim that is plausible on its
face. Zellner, 639 F.3d at 378. Plaintiffs simply couch the reasonable inferences of WalMart’s customers as “representations” and advance the threadbare recital that such
“representations were false.” (See Complaint ¶¶ 75–76). Without more, such conclusory
allegations fall short of the heightened pleading standard under Rule 9(b). See Schott,
914 F. Supp. 2d at 942 (dismissing the allegation that a defendant “intentionally
misrepresented and fraudulently sought to conceal its liability” as conclusory and fatal to
a fraud claim). Therefore, the court concludes that Plaintiffs have failed to state a claim
for fraud.
B.
Motion to Dismiss Claims of Nuisance
Plaintiffs allege “common,” or public nuisance. They also allege that Wal-Mart’s
use of its property constitutes a private nuisance. (Complaint ¶¶ 63–64). Wal-Mart
appears to advance two arguments in support of its Motion. First, Plaintiffs allege
insufficient facts to state valid claims of private or public nuisance under Indiana law.
Second, because Plaintiffs make duplicative allegations, which sound in negligence, in
support of both negligence and nuisance claims, they fail to state a separate claim of
nuisance. (Filing No. 27 at 3–4). With respect to the second argument, Wal-Mart cites
no authority, nor is the court aware of any, for the proposition that a plaintiff may not
allege duplicative theories for recovery. The court now turns to the sufficiency of
Plaintiffs’ claims of nuisance under Rules 8 and 12(b)(6).
Indiana Code § 32-30-6-6 defines an actionable nuisance as “whatever is: (1)
injurious to health; (2) indecent; (3) offensive to the senses; or (4) an obstruction to the
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free use of property; so as essentially to interfere with the comfortable enjoyment of life
or property.” “A public nuisance affects an entire neighborhood or community, while a
private nuisance affects only one individual or a determinate number of people.”
Scheckel v. NLI, Inc., 953 N.E.2d 133, 138 (Ind. Ct. App. 2011). Private nuisance arises
when a party “has used his property to the detriment of the use and enjoyment of
another’s property.” Id. (citation omitted). Because Plaintiffs have not alleged that WalMart’s use of its property has somehow obstructed Plaintiffs’ use and enjoyment of their
property, the court concludes that Plaintiffs have failed to state a claim of private
nuisance. 1
Public nuisance is an unreasonable interference with a public right. City of Gary
ex rel. King v. Smith & Wesson, Corp., 801 N.E.2d 1222, 1230–31 (Ind. 2003). The
challenged activity must be “sufficiently grave and sufficiently foreseeable that it renders
it unreasonable to proceed at least without compensation to those that are harmed.” Id. at
1231. The unreasonableness of an activity, even if lawful, turns on whether it “can be
expected to impose such costs or inconvenience on others that those costs should be
borne by the generator of the activity.” Id. Circumstances that may support an inference
of unreasonable interference with a public right include a significant interference with the
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Plaintiffs merely reference private nuisance in the conclusory allegation that Wal-Mart
“allows activity that is injurious to health, indecent, offensive to the senses, and/or an obstruction
to the free use of property; so as essentially to interfere with the comfortable enjoyment of life or
property.” (Complaint ¶ 64). Moreover, Plaintiffs suggest that because the attack ultimately
reached their property, they have stated a claim of private nuisance. (Filing No. 34 at 3). Private
nuisance concerns the impact that one party’s use of property has on another’s use of her
property. Scheckel, 953 N.E.2d at 138. Plaintiffs’ attempt to connect Wal-Mart’s land use to
that of Plaintiffs because the attack by Parrish continued to Plaintiffs’ home does not state a valid
claim for private nuisance.
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public health, safety, peace, comfort, or convenience. Id. at 1233 (citing approvingly the
Restatement (Second) of Torts § 821B). However, Indiana courts have observed that
“[n]ot every dangerous agency is a nuisance”; rather, the activity must be “reasonably
and naturally calculated to injure the general public” who enter the premises. Id. at 1230
(quoting Town of Kirklin v. Everman, 28 N.E.2d 73, 75 (Ind. 1940)); see also Hopper v.
Colonial Motel Properties, Inc., 762 N.E.2d 181, 186 (Ind. Ct. App. 2002) (affirming the
trial court’s grant of summary judgment for claim of public nuisance).
In Hopper, plaintiffs sought damages related to a gunshot wound suffered while
staying at the defendant motel. 762 N.E.2d at 186. They argued that the motel
maintained a public nuisance because it routinely accepted high-risk clientele, and it
neglected to monitor or observe the suspicious behavior of the guests who fired the gun.
Id. Affirming the trial court, the Indiana Court of Appeals noted that a party must
demonstrate “more than a mere tendency or increased likelihood of causing an injury.”
Id. (citing Sand Creek Partners, L.P. v. Finch, 647 N.E.2d 1149, 1153 (Ind. Ct. App.
1995)). “The alleged nuisance must cause injury as a reasonable and normal result of its
operation.” Id.
Plaintiffs allege that deficient security on Wal-Mart’s premises invites the
“criminal element,” making it unsafe for its customers. (Complaint ¶¶ 66–67). In
addition to the crimes committed against Plaintiffs, they allege that law enforcement
made over 800 runs to Wal-Mart to respond to reports of criminal activity between
January 2009 and February 2014. (Complaint ¶ 12). Plaintiffs also allege that the
nuisance (1) denied Plaintiffs their property rights as business invitees to shop in peace,
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and (2) brought harm to Plaintiffs, interfering with their “comfortable enjoyment of life.”
(Complaint ¶ 65). The court cannot infer from such allegations that Wal-Mart’s
insufficient security constitutes an activity “reasonably and naturally calculated to injure
the general public.” Smith & Wesson, 801 N.E.2d at 1230. Aside from the conclusory
allegation that Wal-Mart maintains a public nuisance, (Complaint ¶¶ 63–65), Plaintiffs
essentially allege that Wal-Mart’s actions increase the likelihood of people suffering
harm on its property. (See Complaint ¶¶ 66–67 (alleging that the lack of security invites
criminal activity)). Such allegations alone fail to state a claim of nuisance under Indiana
law. Although the issue of whether an activity is sufficiently “unreasonable” rests with
the trier of fact, Smith & Wesson, 801 N.E.2d at 1231, Plaintiffs must allege enough
factual matter that makes a claim of nuisance plausible. For the foregoing reasons, the
court concludes that Plaintiffs have failed to meet this burden.
C.
Motion to Dismiss the Request for Injunctive Relief
Wal-Mart moves the court to dismiss Plaintiffs’ request for injunctive relief under
Rule 12(b)(6) for failure to state a claim. As Rule 8(a) makes clear, a request for a
specific type of relief is not a separate legal claim. A claim for relief must include both
“a short plain statement of the claim showing that the pleader is entitled to relief; and a
demand for the relief sought, which may include relief in the alternative or different types
of relief.” Fed. R. Civ. P. 8(a)(2)–(3) (emphasis added). A motion pursuant to Rule
12(b)(6) challenges the statement of the claim, not the relief sought. Therefore, the court
denies Wal-Mart’s Motion to Dismiss the Request for Injunctive Relief.
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IV.
Conclusion
For the reasons set forth above, the Motion to Dismiss the claim of fraud (Filing
No. 24) is GRANTED; the Motion to Dismiss the claims of nuisance (Filing No. 26) is
GRANTED; and the Motion to Dismiss the request for injunctive relief (Filing No. 28) is
DENIED.
SO ORDERED this 3rd day of October 2014.
s/ __________________________________
Richard L. Young________________
RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
United
SouthernStates District Court
District of Indiana
Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.
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