Brumfield et al v. VGB, Inc. et al

Filing 30

ORDER AND REASONS re 17 Motion for Summary Judgment. ORDERED that the defendants' motion to strike Herbert Brumfield's affidavit is SUSTAINED. FURTHER ORDERED that the defendants motion for summary judgment is GRANTED. Signed by Judge Martin L.C. Feldman on 1/10/2018. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HERBERT BRUMFIELD AND
KAREN BRUMFIELD

CIVIL ACTION

V.

NO. 17-2223

VGB, INC. D/B/A TOYOTA OF
SLIDELL AND RUSSELL MUNSTER, III

SECTION "F"

ORDER AND REASONS
Before the Court is the defendants’ motion to strike Herbert
Brumfield’s affidavit and motion for summary judgment. For the
following reasons, the motion to strike is SUSTAINED and the motion
for summary judgment is GRANTED.
Background
Herbert Brumfield was employed at Toyota of Slidell. He was
terminated in March 2016. After Brumfield was terminated, Russell
Munster, the general manager of Toyota of Slidell, discovered that
seven sets of keys to new vehicles were missing. Each set of keys
had a value of $400, totaling $2,800. Every employee has a unique
personal code, known only to them, which is used to check out
vehicle

keys.

Brumfield’s

All

name.

seven
After

sets

were

checked

unsuccessfully

out

in

Herbert

attempting

to

contact

Brumfield several times, Munster contacted the Slidell Police
Department and reported the keys missing on March 18, 2016. Officer
McNulty of the Slidell Police Department reviewed the key lock
report, which showed that the keys were last checked out to
1

Brumfield and had not been returned. He also collected the VIN
numbers, make, model and year of each vehicle that corresponded to
a missing key. Believing he had probable cause, Office McNulty
obtained an arrest warrant for Brumfield on March 22, 2016.
On March 23, 2016, Officer Callais of the Slidell Police
Department

arrested

Brumfield.

Brumfield

attempted

to

make

a

credit card purchase at Best Buy without the proper identification,
so an employee called the police. When Officer Callais arrived, he
determined that there was an outstanding warrant for Brumfield, so
Officer Callais placed him under arrest and took him to jail.
Subsequently, Brumfield had a mental health episode that required
treatment in a mental health facility. Sometime after the arrest
but before September, the keys appeared on the receptionist desk
at

Toyota

of

Slidell.

Munster

notified

the

Slidell

Police

Department and the charges were dismissed.
On March 16, 2017, Herbert Brumfield and his wife, Karen
Brumfield,

sued

Munster

and

Toyota

of

Slidell,

alleging

defamation, false arrest, false imprisonment under Louisiana law,
false imprisonment under federal law, malicious prosecution, and
intentional infliction of emotion distress. On June 14, 2017, the
Court dismissed the plaintiffs’ state and federal claims for false
imprisonment and false arrest. The defendants moved for summary
judgment

on

December

21,

2017.

2

The

plaintiffs

submitted

an

opposition and an affidavit by Herbert Brumfield. In its reply,
the defendants submitted a motion to strike Brumfield’s affidavit.

I. Legal Standard: Affidavit
Federal Rule of Evidence 56(c)(2) provides that “[a] party
may object that the material cited to support or dispute a fact
cannot

be

presented

in

a

form

that

would

be

admissible

in

evidence.” To attack an affidavit, a party may simply object to
the material; the federal rules no longer require parties to file
a separate motion to strike. Cutting Underwater Tech. USA, Inc. v.
Eni U.S. Operating Co., 671 F.3d 512, 515 (5th Cir. 2012); see
Fed. R. Civ. P. 56 advisory committee’s notes to 2010 (“There is
no need to make a separate motion to strike.”). Instead, the
party’s “motion to strike will be treated as an objection.” Cutting
Underwater, 671 F.3d at 515.
An affidavit must be sworn to raise a fact issue precluding
summary judgment, with one exception. Nissho-Iwai American Corp.
v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988). 28 U.S.C. § 1746
permits unsworn declarations to have the force and effect of a
sworn declaration if it is made “under penalty of perjury” and is
verified

as

“true

and

correct.”

Id.

The

signature

must

be

handwritten; typed notations on the signature line of “/s/” and
the affiant’s typed name are insufficient. See Grant v. House of

3

Blues New Orleans Restaurant Group, Civ. No. 10-3161, 2011 WL
1596207, at *1 (E.D. La. Apr. 27, 2011).
An affidavit must also be made on personal knowledge. Fed. R.
Civ. P. 56(c)(4)(“An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”); Fed.
R. Evid. 602. An affiant cannot simply state that their affidavit
is based on personal knowledge. Meadaa v. K.A.P. Enterprises,
L.L.C., 756 F.3d 875, 881 (5th Cir. 2014). “Rather, the affiant
must provide the district court with sufficient information to
allow the [court] to conclude that the affiant’s assertions are
indeed based on such knowledge.” Id. On a motion for summary
judgment, the court will only disregard the inadmissible portions
of the affidavit, but will consider the rest in determining whether
to grant or deny the motion. Lee v. Nat’l Life Assur. Co. of
Canada, 632 F.2d 524, 529 (5th Cir. 1980).

II. Affidavit
Herbert Brumfield’s affidavit does not contain an adequate
signature.

Instead

of

a

hand

written

signature,

there

is

an

electronic signature of “/s/ Herbert Brumfield.” The affidavit
does not include a statement that it was made under “penalty of

4

perjury” and that it is “true and correct.” Accordingly, the
unsworn affidavit is deficient.
Moreover, nearly every statement made in the affidavit was
made without the personal knowledge of the affiant. Most statements
are speculative and offered without any supporting facts. For
instance, over half of the statements accuse Russell Munster of
knowingly
distinct
states

misleading
purpose

that

of

Russel

the

Slidell

harming
Munster

Police

Herbert

Department

Brumfield;

“presented

only

the

partial

for

the

affidavit
facts

to

Detective McNulty,” “did not tell Detective McNulty that other
Toyota salesmen who assisted me (Brumfield) were given and had
access

to

the

missing

keys

and

were

possible

suspects,”

and

“instigated my (Brumfield’s) prosecution and arrest in retaliation
for a dispute between me and Toyota salesman Chris Owens and
Munster.” He also made speculative and self-serving comments on
Officer McNulty’s conduct, such as, “Detective McNulty would have
expanded

this

investigation

had

he

known

this

evidence.”

Brumfield’s assertions are unsubstantiated; he was not present
during the investigation and presents no facts to demonstrate that
he has personal knowledge of it or Munster’s motives. The affidavit
is not admissible and cannot be considered for this motion for
summary judgment.

5

III. Legal Standard: Motion for Summary Judgment
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A genuine

dispute of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion.

See id.

In this regard,

the non-moving party must do more than simply deny the allegations
raised by the moving party.

See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).

Rather, he

must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.

Id.

Hearsay evidence and

unsworn documents that cannot be presented in a form that would be
admissible

in

evidence

opposing evidence.

at

trial

do

not

qualify

as

competent

Martin v. John W. Stone Oil Distrib., Inc.,

819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
"[T]he

nonmoving

conclusory

party

allegations,

cannot

defeat

unsubstantiated
6

summary

judgment

assertions,

or

with

only

a

scintilla of evidence."

Hathaway v. Bazany, 507 F.3d 312, 319

(5th Cir. 2007)(internal quotation marks and citation omitted).
Ultimately, "[i]f the evidence is merely colorable . . . or is not
significantly probative," summary judgment is appropriate.

Id. at

249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir.
1994) (“Unauthenticated documents are improper as summary judgment
evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case.

See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party.

Scott v. Harris, 550 U.S. 372, 378 (2007).

Although

the Court must "resolve factual controversies in favor of the
nonmoving party," it must do so "only where there is an actual
controversy, that is, when both parties have submitted evidence of
contradictory facts."

Antoine v. First Student, Inc., 713 F.3d

824, 830 (5th Cir. 2013)(internal quotation marks and citation
omitted).

IV. Motion for Summary Judgment
The plaintiffs allege that the defendants’ report of the
stolen keys to the Slidell Police Department was misleading and
fabricated, and intended to harm Herbert Brumfield. The plaintiffs
7

assert

that

Munster

should

have

completed

a

more

thorough

investigation of the missing keys before contacting the police,
did not have reasonable grounds to believe that Herbert Brumfield
had the keys, 1 and only contacted the police to retaliate against
Brumfield

after

he

had

a

work

place

conflict

with

another

employee. 2 The plaintiffs assert the following causes of action
against the defendants: (1) defamation; (2) malicious prosecution;
and (3) intentional infliction of emotional distress. 3

1

Brumfield contends that he checked out the keys to move the cars
in inclement weather and that other employees were helping him
move them. When he left, he asked the employees to turn in the
keys. He claims that Munster knew (or could have known with a more
thorough investigation) that other employees actually had the
keys.
2 Brumfield allegedly “stood up” to another employee, Chris Owens,
who is friends with Munster. According to Brumfield, Munster’s
report was in retaliation for the dispute with Owens. Brumfield
claims that “Munster was mean and cruel to [him] because [he] [i]s
black and talked and stood up to [Munter’s] friend Chris Owens who
is white. Brumfield also claims he was fired in retaliation for
the dispute. Munster testified that Brumfield was terminated after
he was observed rummaging through a manager’s office without
permission, which Brumfield denies.
3 In their dizzying opposition, the plaintiffs discuss and make
arguments for causes of action that they did not assert in the
complaint, such as negligent misrepresentation and retaliation
under Title VII. The Fifth Circuit has held that “[a] claim which
is not raised in the complaint but, rather, is raised only in
response to a motion for summary judgment is not properly before
the court.” Cutera v. Bd. of Supervisors of La. State Univ., 429
F.3d 108, 113 (5th Cir. 2005). The Court strains to ascertain the
precise arguments that the plaintiffs are making in their
opposition, and to the extent they are addressing the claims they
did assert in their complaint. Regardless, over half of the
opinions cited were from other jurisdictions, and much of the
Louisiana case law cited is irrelevant. Case precedent from Georgia
and Massachusetts does nothing to persuade the Court, even if
presented on the correct causes of action, when Louisiana case law
8

A. Defamation
To prevail in a defamation suit, a plaintiff must prove: “(1)
a

false

and

defamatory

statement

concerning

another;

(2)

an

unprivileged publication to a third party; (3) fault (negligence
or greater) on the part of the publisher; and (4) resulting
injury.” Fitzgerald v. Tucker, 98-2313 (La. 6/29/99); 737 So.2d
706, 716. Because the plaintiff must establish every element, if
the communication made to the third party is privileged, the claim
fails. There are two types of privileged communications: absolute
and conditional or qualified. Kennedy v. Sheriff of East Baton
Rogue, 2005-1418, p. 16 (La. 7/10/06); 935 So.2d 669, 681.
Absolute privilege exists in limited circumstances, like in
judicial

proceedings,

and

protects

the

publisher

from

all

liability. Madison v. Bolton, 102 So.2 433, 439 (La. Mar. 17,
1958), rev’d on other grounds, Schaefer v. Lynch, 406 So.2d 185
(La. Nov. 16, 1981). Conditional privilege “arises from the social
necessity

of

permitting

full

and

unrestricted

communication

concerning a matter in which the parties have an interest or duty
. . . .” Kennedy, 935 So.2d at 681 (quoting Toomer v. Breaux, 146

adequately addresses the issues. However, the thrust of the
plaintiffs’ argument is that Munster acted maliciously when he
contacted the police, and misled them when reporting the missing
keys. The Court will consider these general contentions,
regardless if they are made in the context of the negligent
misrepresentation or Title VII claim.
9

So.2d 723, 725 (La. App. 3 Cir. 1962)). Conditional privileges
apply “if the communication is made (a) in good faith, (b) on any
subject matter in which the person communicating has an interest
or in reference to which he was a duty, [and] (c) to a person
having a corresponding interest or duty.” Id. (quoting Toomer, 146
So.2d at 725). Louisiana courts have “recognized that the public
has an interest in possible criminal activity being brought to the
attention of the proper authorities, and have extended a qualified
privilege to remarks made in good faith.” Id. at 683. Likewise,
the police have a duty to investigate whether the allegations are
true.

Id.

The

Louisiana

Supreme

Court

has

expressly

granted

qualified immunity to individuals who reported criminal activity
to police, even though they were ultimately mistaken, noting that
“[i]t would be self-defeating for society to impose civil liability
on a citizen for inaccurately reporting criminal conduct with no
intent to mislead.” 4

4

In Kennedy v. Sheriff of East Baton Rouge, 2005-1418 (La.
7/10/06); 935 So.2d 669, the Court held that conditional privilege
applies to reports to law enforcement of potential criminal
activity. There, Jack in the Box employees notified the police
after a customer attempted to pay with a $100 bill. The employees
believed the bill was counterfeit. East Baton Rouge Sherriff
deputies immediately responded, and ultimately handcuffed the
owner of the bill, Alfred Kennedy, and transported him to the
sheriff’s station until they could assess the bill’s authenticity.
The bill was legitimate, and the officers released Kennedy. Kennedy
sued the Sherriff of East Baton Rouge Parish and Jack in the Box
for damages, claiming defamation.
10

After the Court determines that the requirements for invoking
qualified privilege are satisfied, it will then consider whether
the privilege was abused. Smith v. Our Lady of the Lake Hosp.,
Inc., 93-2512, p. 18 (La. 7/5/94); 639 So.2d 730, 745. “While the
first step is generally determined by the court as a matter of
law,

the

second

step

of

determining

abuse

of

a

conditional

privilege or malice is generally a fact question for the jury
[u]nless only one conclusion can be drawn from the evidence.”
Kennedy, 935 So.2d at 682 (quoting Smith v. Our Lady of the Lake
Hosp., Inc., 93-2512, p.18 (La. 7/5/94), 639 So.2d 730, 745. A
privilege is abused if the publisher “(a) knows the matter to be
false, or (b) acts in reckless disregard as to its truth or
falsity.” Kennedy, 935 So.2d at 684. When creating this standard,
the Supreme Court of Louisiana acknowledged that it is good public
policy to protect individuals from exposure to civil liability for
alerting police of potential criminal activity. Id. at 685-86.
Qualified privilege applies to Munster’s communication with
the Slidell Police Department. The person communicating, Munster,
had an interest in reporting possible criminal activity to law
enforcement. The Slidell Police Department has a similar duty to
consider

that

information

and

take

action,

if

appropriate.

Although discussed in detail below, the defendants have submitted
evidence establishing that they acted in good faith, and the
plaintiffs have failed to rebut that evidence or identify a genuine
11

issue of fact as to the motive of the defendants. As a matter of
law, conditional privilege applies to communications alerting the
authorities

of

potential

criminal

activity,

like

theft,

if

completed for the purpose of alerting the authorities (and not
solely to injure the accused). See Kennedy, 935 So.2d at 683.
Next, the Court turns to whether Munster abused his privilege.
The defendants assert that their communication was reasonable
based on the information they had. They submit that the key report
identified Brumfield as the last person to check out the keys and
that they had no reason to doubt the key report because every
employee has a unique pin number that only the employee knows.
Further,

they

contacted

Brumfield

several

times

before

they

contacted the police, and were either forwarded to voicemail or
ignored.
The plaintiffs contend that Munster contacted the police to
retaliate against Brumfield for a workplace conflict. Further,
they contend that Munster did not have reasonable grounds to
believe that Brumfield was in possession of the keys, and knew
that his accusations were baseless, but still contacted police for
the purposing of harming Brumfield. But the plaintiffs failed to
submit any facts on this record that support their claims. In his
deposition, Brumfield repeatedly accuses Munster of being “mean”
and “pure evil,” but stated that he does not have any evidence
that Munster believed the information was false. The plaintiffs’
12

unsubstantiated assertions and conclusory allegation do not create
a factual controversy as to whether the defendants abused their
privilege.
The defendants have supported their assertions that Munster
contacted the police because he actually believed Brumfield was in
possession of the keys. The key report indicated that Brumfield
was the last person in possession of the keys and they had not
been returned. He also contacted Brumfield several times before
contacting the police. There is nothing in the record that Munster
knew his report was false or acted in reckless disregard as to its
falsity. Accordingly, Munster’s communications are protected by
qualified privilege, and therefore, the plaintiffs cannot succeed
on a defamation cause of action.

B. Malicious Prosecution
The elements of a malicious prosecution cause of action are:
“(1) the commencement or continuance of an original criminal or
civil judicial proceeding; (2) its legal causation by the present
defendant in the original proceeding; (3) its bona fide termination
in favor of the present plaintiff; (4) the absence of probable
cause for such proceeding; (5) the presence of malice therein; and
(6) damage conforming to legal standards resulting to plaintiff.”
Lemoine v. Wolfe, 2014-1545, p. 8 (La. 3/17/15); 168 So.3d 362,
368. The first issue is whether Brumfield satisfies that third
13

element.
because

The plaintiffs do not have a malicious prosecution claim
Herbert

Brumfield’s

criminal

proceedings

were

never

reached on the merits. The case was dismissed before Brumfield
made an appearance in court. Without any formal proceedings, there
was no opportunity for a court to reach the merits, and thus, there
is

no

cause

of

action

for

malicious

prosecution

in

these

circumstances. 5

C. Intentional Infliction of Emotional Distress
To prevail on a claim for intentional infliction of emotional
distress, a plaintiff must prove: “(1) that the conduct of the
defendant was extreme and outrageous; (2) that the emotional
distress suffered by the plaintiff was severe; and (3) that the
defendant desired to inflict severe emotional distress or knew
that severe emotional distress would be certain or substantially
certain to result from his conduct.” White v. Monsanto Co., 585
So.2d 1205, 1209 (La. Sept. 9, 1991). The first element requires
that “[t]he conduct must be 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.” Id. Louisiana courts have held that reports

5

Both parties briefed the probable cause and malice elements.
Because the plaintiff cannot satisfy the favorable termination
element, it is unnecessary for the Court to determine if he
satisfied the other elements.
14

of suspected criminal activity do not constitute “extreme and
outrageous” conduct. E.g. Cook v. American Gateway Bank, 20100295, p.18 (La. App. 1 Cir. 9/10/10); 49 So.3d 23, 36 (“The same
legal

considerations

that

justify

the

defense

of

conditional

privilege for reports of suspected criminal activity also compel
the conclusion that such a report, made in good faith and founded
upon

reasonable

suspicions,

simply

cannot

constitute

“extreme and outrageous” conduct under the foregoing standard.”);
Henderson v. Bailey Bark Materials, 47,946, p.14 (La. App. 2 Cir.
4/10/13); 116 So.3d 30, 40.
As discussed above, the plaintiffs have provided no evidence
to rebut the defendants’ assertions that they reported the missing
keys in good faith. Moreover, the plaintiffs have not submitted
evidence that creates a genuine issue of material fact as to the
good faith basis of the report. Accordingly, plaintiffs fail to
establish on this record a critical element of their intentional
infliction of emotional distress claim.
Considering

the

foregoing,

IT

IS

ORDERED:

that

the

defendants’ motion to strike Herbert Brumfield’s affidavit is
SUSTAINED. IT IS FURTHER ORDERED: that the defendants’ motion for
summary judgment is GRANTED.

15

New Orleans, Louisiana, January 10, 2018

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

16