BANZIGER v. CITY OF FRANKLIN et al

Filing 45

ORDER - Plaintiff Rochelle Banziger's Amended Complaint alleges several constitutional and state law claims against a variety of defendants after Ms. Banziger suffered injuries during an incident at a Walmart. [Filing No. 32 .] Ms. Banziger all eges only a state law assault claim against Wal-Mart Stores East, LP, which operates the Walmart store, and Andrew Brewer (collectively, "Walmart"), the Walmart employee who allegedly initiated the confrontation that resulted in her injurie s. Walmart now moves to dismiss Ms. Banziger's assault claim for failure to plausibly allege an assault under Indiana law. [Filing No. 41 .] For the reasons in this Order, the Court DENIES Walmart's Motion to Dismiss. Even post-Twombly and Iqbal, "the bar to survive a motion to dismiss is not high." Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010). The purpose of Rule 12(b)(6) motions remains solely to test the legal sufficiency of a plaintiff's complaint. Ms. Banziger's Amended Complaint meets this standard. For the reasons in this Order, the Court DENIES Walmart and Mr. Brewer's Motion to Dismiss. [Filing No. 41 .] (See Order). Signed by Judge Jane Magnus-Stinson on 9/18/2017. (APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ROCHELLE BANZIGER,
Plaintiff,
vs.
CITY OF FRANKLIN,
SHAWN HENSON, in his individual and
official capacities,
ANDREW BREWER,
WAL-MART STORES EAST, LP,
Defendants.

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No. 1:17-cv-00755-JMS-DML

ORDER
Plaintiff Rochelle Banziger’s Amended Complaint alleges several constitutional and state
law claims against a variety of defendants after Ms. Banziger suffered injuries during an incident
at a Walmart. [Filing No. 32.] Ms. Banziger alleges only a state law assault claim against WalMart Stores East, LP, which operates the Walmart store, and Andrew Brewer (collectively,
“Walmart”), the Walmart employee who allegedly initiated the confrontation that resulted in her
injuries. Walmart now moves to dismiss Ms. Banziger’s assault claim for failure to plausibly
allege an assault under Indiana law. [Filing No. 41.] For the following reasons, the Court DENIES
Walmart’s Motion to Dismiss.
I.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a claim that
does not state a right to relief. The Federal Rules of Civil Procedure require that a complaint
provide the defendant with “fair notice of what the . . . claim is and the grounds upon which it

rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic v. Twombly, 550 U.S.
544, 555 (2007)). In reviewing the sufficiency of a complaint, the Court must accept all well-pled
facts as true and draw all permissible inferences in favor of the plaintiff. See Active Disposal Inc.
v. City of Darien, 635 F.3d 883, 886 (7th Cir. 2011). A Rule 12(b)(6) motion to dismiss asks
whether the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). The Court may not accept legal conclusions or conclusory allegations as
sufficient to state a claim for relief. See McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir.
2011). Factual allegations must plausibly state an entitlement to relief “to a degree that rises above
the speculative level.” Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012). This plausibility
determination is “a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id.
II.
BACKGROUND
Consistent with the standard set forth above, the Court recites the facts as detailed in Ms.
Banziger’s Amended Complaint, which are treated as true for the purpose of resolving Walmart’s
Motion. The Court may not fill in what the defendant may see as “gaps” in the plaintiff’s story
with additional facts proposed by the defendant. Cf., e.g., Mescall v. Burrus, 603 F.2d 1266, 1269
(7th Cir. 1979) (“To support the dismissal, certain findings of fact were made beyond the
allegations of the complaint. Perhaps the trial court has correctly predicted what the final result
may be on a motion for summary judgment or after trial, but at this stage of the proceeding those
findings cannot be justified.”). The Court thus begins its summation of the well-pleaded facts by
rejecting Walmart’s attempt to supplement Ms. Banziger’s Amended Complaint with its own

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suggested facts. [See Filing No. 42 at 1 (arguing that the Amended Complaint “omits a material
part of the complete story”).]
The events relevant to Walmart’s Motion began, according to the Amended Complaint,
when seventy-nine-year-old Ms. Banziger visited an Indiana Walmart store in March 2016. [Filing
No. 32 at 2.] As Ms. Banziger exited the store with a cart, Mr. Brewer, a Walmart asset protection
employee, approached Ms. Banziger and announced that he worked for Walmart’s asset protection
unit. [Filing No. 32 at 3.] According to Mr. Brewer’s statements after the incident, Ms. Banziger
did not physically fight with Mr. Brewer, but “became uncooperative,” caused a “big scene,” and
got “very mouthy.” [Filing No. 32 at 3.]
Mr. Brewer asked Ms. Banziger to return to the store and walked her to the asset protection
office, calling the police along the way. [Filing No. 32 at 3.] Mr. Brewer demanded to see Ms.
Banziger’s receipt for her purchase after he believed that he saw Ms. Banziger searching through
her purse. [Filing No. 32 at 3.] Mr. Brewer then took a step toward Ms. Banziger, leaned over her
where she was sitting, and pointed his finger in her face. [Filing No. 32 at 4.] Mr. Brewer later
admitted that he was frustrated with Ms. Banziger, which led him to become firm and get in her
face. [Filing No. 32 at 8.] According to Mr. Brewer, Ms. Banziger stood up and told Mr. Brewer
not to speak to her that way. [Filing No. 32 at 4.] Then, the police officer whom Mr. Brewer had
called arrived and intervened. [Filing No. 32 at 8.]
On March 10, 2017, Ms. Banziger brought suit and, with leave of Court, [Filing No. 31],
filed her currently operative Amended Complaint on July 25, 2017, [Filing No. 32]. Ms. Banziger
alleges that Mr. Brewer’s actions, committed while working in the scope of his employment with
Walmart, constitute assault under Indiana law. [Filing No. 32 at 8.] Ms. Banziger seeks to hold
Mr. Brewer and, pursuant to the doctrine of respondeat superior, Walmart liable for Mr. Brewer’s

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actions. On August 21, 2017, Walmart filed its Motion to Dismiss, arguing that Ms. Banziger’s
Amended Complaint fails to plausibly allege an assault claim. [Filing No. 41.]
III.
DISCUSSION
Walmart advances one argument in support of its Motion: that the facts alleged in Ms.
Banziger’s Amended Complaint, taken as true, do not raise “more than the mere possibility” that
Mr. Brewer assaulted Ms. Banziger. [Filing No. 44 at 2.] In response, Ms. Banziger argues that
Walmart’s position overstates the pleading standard and that her complaint plausibly alleges a
claim for assault. [Filing No. 43.]
A person commits an actionable assault “when one acts intending to cause a harmful or
offensive contact with the person of the other or an imminent apprehension of such contact.”1
Cullison v. Medley, 570 N.E.2d 27, 30 (Ind. 1991) (citing Restatement (Second) of Torts § 21
(1965)). The “apprehension” of the offensive contact “must be one which would normally be
aroused in the mind of a reasonable person.” Id. (citing W. Page Keeton et al., Prosser and Keeton
on the Law of Torts § 10 (5th ed. 1984)). Thus, at trial, a plaintiff must demonstrate that the
defendant intended to cause the “fear that harmful or offensive contact [was] about to occur” and
that the plaintiff had a “reasonable fear that the contact [was] about to occur.” Ind. Model Civ.
Jury Instructions § 3137 (Ind. Judges Ass’n 2015). Turning to Professors Prosser and Keeton, the
Indiana Supreme Court has explained that “[a]ny act of such a nature as to excite an apprehension

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Ms. Banziger assault claim invokes this Court’s supplemental jurisdiction pursuant to 28 U.S.C.
§ 1367 as a state law claim that is part of the “same case or controversy” as her constitutional
claims against the City of Franklin and Officer Henson. 28 U.S.C. § 1367(a). Ms. Banziger alleges
that the relevant events occurred in Indiana and the parties apply Indiana law in their briefs. The
Court therefore applies Indiana law in resolving Walmart’s Motion. See Wood v. Mid-Valley Inc.,
942 F.2d 425, 426-27 (7th Cir. 1991) (“Courts do not worry about conflict of laws unless the
parties disagree on which state's law applies.”).
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of a battery may constitute an assault. It is an assault to shake a fist under another’s nose . . . .”
Raess v. Doescher, 883 N.E.2d 790, 794 (Ind. 2008) (quoting Cullison v. Medley, 570 N.E.2d 27,
30 (Ind. 1991) (quoting Prosser and Keeton § 10)).
In this case, Ms. Banziger alleges that Mr. Brewer stepped toward her, leaned over her, and
pointed his finger in her face. Ms. Banziger further alleges that Mr. Brewer admitted after the
incident that he acted out of frustration. There is no legally significant difference between someone
shaking a fist under someone else’s nose, which the Indiana Supreme Court has said constitutes
assault, and someone angrily pointing a finger in another’s face. Perhaps a finger-pointing would
not cause apprehension of “harmful” contact. But an angry touch to the face would certainly be
considered “offensive” contact, and “offensive” contact need not be “harmful” contact, otherwise
the disjunctive test for an assault (providing that immediate apprehension of either suffices) would
be rendered superfluous. Both the shaking fist and the pointing finger may reasonably cause
another person to believe that the actor intended to engage in offensive contact and, given the
proximity of the actor’s hand, to believe that the offensive contact was about to occur. Therefore,
drawing all reasonable inferences in Ms. Banziger’s favor, the Court concludes that the Amended
Complaint plausibly alleges that Mr. Brewer committed an assault.
Walmart suggests in its reply that “Banziger has neither alleged that Brewer intended to
cause a harmful or offensive contact with her nor that his actions created an apprehension of
harmful or offensive contact.” [Filing No. 44 at 2.] But it is unclear exactly what it is that Walmart
suggests is missing from Ms. Banziger’s Amended Complaint. For example, if the Court were to
permit Ms. Banziger to amend her complaint again to allege that “Mr. Brewer intended to create
an apprehension of harmful or offensive contact,” presumably Walmart would again move to
dismiss on the grounds that the new allegation reflected a conclusory legal allegation entitled to

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no weight under the plausibility pleading standard. The dispositive inquiry at this stage is merely
whether the facts as alleged yield the reasonable inference that Mr. Brewer acted with the requisite
intent. For the reasons set forth above, the Court concludes that the facts alleged in the Amended
Complaint yield precisely that reasonable inference.
IV.
CONCLUSION
Even post-Twombly and Iqbal, “the bar to survive a motion to dismiss is not high.” Bonte
v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010). The purpose of Rule 12(b)(6) motions
remains solely to test the legal sufficiency of a plaintiff’s complaint. Ms. Banziger’s Amended
Complaint meets this standard. Accordingly, the Court DENIES Walmart and Mr. Brewer’s
Motion to Dismiss. [Filing No. 41.]

Date: 9/18/2017

Distribution via ECF only to all counsel of record.

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